WINDHOEK - The fraud and corruption trial of former CEO of the Roads Contractor Company (RCC) Kelly Nghixulifwa and two of his business friends, Anna Ndoroma, 53, and Hafeni Nginamwaami, 50, was put back on the mentions roll yesterday.
Windhoek High Court Judge Christi Liebenberg postponed the matter to August 21 after he was told the Supreme Court did not yet give an indication whether it will entertain a petition Nghixulifwa lodged to appeal a decision by Judge Liebenberg to refuse to quash eight of the 11 charges he is facing
The accused 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.
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 argued 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.
Nghixulifwa is now seeking leave to appeal only against the ruling of the judge about the RCC being a public body and he a public officer.
It is with regard to this application that the matter was put on the review roll of Judge Liebenberg to obtain dates possibly only next year.
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 and the accused are free on bail.