2015-04-22Staff Report 2 WINDHOEK - The trial in which Windhoek-based lawyer Dirk Conradie and his co-accused, Sara Ngenohani Damases, is charged of corruption was postponed to next week Thursday. The postponement is to enable Damases to obtain a new legal representative after Advocate Vas Soni SC, who was to appear for both Damases and Conradie, informed court he cannot in all fairness represent both accused as there might be possible conflict of interest. Acting Judge Thomas Masuku on Monday granted Damases a remand to next Thursday to obtain legal representation. In the meantime, the defense gave notice to the court they intend to lodge a special plea when the trial resumes. According to the special plea, the defendants argue the indictment is invalid in respect of counts 1, 2 and 3 because they are “founded on evidence that has been secured illegally and improperly and also in violation of the constitutional rights of the accused”. They also claimed the High Court has no jurisdiction to adjudicate count 4. Counts 1 to 3 deal with the contravention of the Anti-Corruption Act and relate to both accused while count 4 deals with contravening the Companies Act and relates to Conradie alone. According to the indictment, the accused are guilty of corruptly soliciting or agreeing to accept for the benefit of himself or another person a gratification as an inducement or reward to influence in procuring a contract in count 1. In count 2, they are guilty of corruptly using office or position to obtain a gratification for himself or another person, the indictment states. Count 3 states that both are guilty of attempting or conspiring to contravene the previous allegations and count 4 alleges that Conradie failed to disclose an interest in a contract of significance to be entered into by the company. They were arrested in June 2012 after Mark Bongers and his wife Kim Field - owners of advertising agency DV8 Saatchi and Saatchi - allegedly availed a tape recording of Conradie soliciting a bribe from them to the ACC. Conradie allegedly told Bongers he will use his position as Chair of the MTC board to ensure that DV8 gets the telecommunication giant’s N$60 million advertising tender in return for them taking Damases on board as a black economic empowerment (BEE) partner in their company. The recordings were allegedly made by Bongers in a meeting held at the Conradie & Damaseb law firm’s offices on June 12, 2012. It is these recordings that now face the constitutional challenge by Comrade’s high profile defense team. According to the special plea, the accused are entitled to a fair hearing, but which will be violated if evidence on which the State will seek a conviction has been secured in breach of any of the rights of the accused as guaranteed by the Constitution. In the present matter, the accused contend the evidence to be “tendered at their trial in respect of counts 1, 2 and 3 was secured in breach of their rights under Article 8 and Article 13 of the Constitution”. Article 8 states that the dignity of all persons shall be inviolable while Article 13 protects privacy, save in certain circumstances. Article 13 provides: “No person shall be subject to interference with the privacy of their homes, correspondence or communications, save as in accordance with the law and as is necessary in a democratic society in the interest of national security, public safety or economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedom of others”. They argue that the evidence on which the charges and the indictment are founded is seriously tainted and compromised and its admission would render their trial unfair because the evidence of Bongers and Field were “surreptitiously, improperly and unlawfully recorded at a confidential meeting between them and the accused”. They claim Bongers and Field did not have the necessary authority to record the conversation. Moreover, they said, the recording that Field made of a telephonic conversation that she had with Damases was unlawfully made at the instigation of the ACC without consent. Accordingly, the recordings were made in breach of the accused person’s right to dignity and privacy of communications, as enshrined in the Namibian Constitution, they stated in the notice of special plea. With regard to the fourth count, Conradie contends that the Namibian High Court does have the jurisdiction to preside over a “non-fulfilment of a statutory duty outside Namibia”. They want the special plea to be heard and disposed of before the hearing of any evidence, as it could have a direct impact on the entire trial. 2015-04-22Staff Report 2
