WINDHOEK - Former CEO of the Road Contractors Company, Kelly Nghixulifwa has petitioned the Supreme Court to challenge a decision by Windhoek High Court Judge Christi Liebenberg to refuse to squash eight of the 11 charges that he faces.
Nghixulifwa and two of his business friends, Anna Ndoroma, 53, (four counts) and 50-year old Hafeni Nginamwaami (four counts) are on trial for fraud and contravening the Anti-Corruption Act.
At the centre of the matter is a loan of N$4.8 million that Nghixulifwa allegedly secured for Ae//Gams Engineering to purchase Erf 10485 along Independence Avenue without declaring his interest in the company.
Their trial was supposed to start yesterday, but Judge Liebenberg granted them a postponement to July 01 to ascertain whether Chief Justice Peter Shivute will entertain the petition lodged with the Supreme Court of appeal.
Nghixulifwa objected to the eight charges and asked the court to quash three counts of corruptly using his office for gratification and two counts of fraud or alternatively that the State cannot rely on the provisions of section 43(2) of the Anti-Corruption Act.
He argues that the RCC is not a public body and that he therefore was not a public officer and can therefore not be charged under this section.
In this regard, the judge said it amounts to a constitutional challenge of the said section and would therefore require a substantive application to be supported by a founding affidavit and allowing the respondent(s) an opportunity to answer.
“Therefore, in the premises, and after due consideration of the submissions made in favour of and against the court to invoke its powers to decide the constitutionality of s 43(2), it is my considered opinion that a court should only decide the constitutional challenge once all interested parties, such as the Prosecutor-General, the Attorney-General, the Director-General of the Anti-Corruption Commission and any other interested party, are afforded the opportunity to intervene,” Judge Liebenberg stated.
With regard to the other objections, he argued the inclusion of section 332(5) of the Criminal Procedure Act which makes provision that a director of a public body can be charged and convicted criminally without charging the public body in the process, the judge said that their objections is without merit as the issue was already decided in the Supreme Court where it was found not to be unconstitutional.
He further said that in his view the State has reason to invoke the provisions of the section and that the accused would suffer any prejudice.
For these reasons the judge refused the application and Nghixulifwa brought an application to appeal the decision in the Supreme Court which was also denied by Judge Liebenberg on the grounds that he feel the Supreme Court will not come to a different conclusion.
Nghixulifwa then petitioned the Chief Justice and it is that decision that brought the umpteenth postponement to the start of the trial.
Nghixulifwa will be represented by Vas Soni SC on instructions of Advocate Slysken Makando, Ndoroma by Silas Kishi-Shikumu and Nginamwaami by Khadila Amoomo.
The State is represented by Advocates Ezekiel Ipinge and Jackson Kuutondokwa.