The only man jailed in the Avid saga, Nico Josea, was denied an opportunity to apply for leave to appeal his conviction and sentence yesterday by Windhoek High Court Judge Christi Liebenberg.
Josea was convicted by Judge Liebenberg on 11 May 2018 on a charge of theft by conversion of N$29.5 million and on contravening the Companies Act.
In the judgement he described Josea as having been instrumental in the disappearance of N$30 million from the Social Security Commission (SSC) invested with little-known investment company Avid Investments owned by the late Lazarus Kandara, who died when he apparently shot himself in front of the Windhoek police station with a pistol he allegedly hid in his bedding.
Josea was indicted together with Paulus Ilonga Kapia, Ines Gases, Otniel Podewiltz, Sharon Blaauw and her husband Ralph and Mathias Shiweda.
Podewiltz and Shiweda were acquitted on all charges, but Kapia, Gases and Ralph Blaauw were convicted of fraud and Sharon of reckless conduct of business.
All were sentenced to fines, while Josea alone was sentenced to 17 years behind bars on 5 July 2018.
He filed his application for leave to appeal eight months out of time and claimed that he had to wait for his family to garner funds to instruct private counsel as his application for legal aid was refused.
Judge Liebenberg however found that the reasons for delaying the application for leave to appeal left much to be desired.
In the first place, the judge said, there were material discrepancies in the explanations advanced by Josea.
According to the judge, it is apparent that the evidence is contradictory in that Josea on the one hand says that his family would place a private legal practitioner in place to conduct the appeal while on the other hand he says that he instructed Advocate Slysken Makando – who appeared on his behalf during the main trial – to apply for legal aid.
The judge further said he also failed to set out when Makando had applied for legal aid, what he has done during the seven months when waiting for a response from his family and when the legal aid application was refused.
“For purposes of the condonation application these dates are material, moreover in light of the conflicting evidence in support of the application,” the judge stressed and continued: “It further lays bare that the applicant has not been candid with this court by revealing the details disclosed by his former legal representative with regard to his instructions and subsequent application for legal aid.”
According to the judge, Josea failed to give a full and detailed account of failing to launch his appeal application within the prescribed timeframe, thus failing the first requirement for condonation.
What was next, Judge Liebenberg said, was to determine whether he had any prospects of success that another court may come to a different conclusion.
In this regard, the judge stated, he was not persuaded by the arguments of Trevor Brockerhoff who handled the appeal for Josea that Josea was wrongfully convicted of misappropriating N$29.5 million while he in fact only misappropriated N$10.4 million.
According to the judge, Josea and Kandara joined forces with the sole intention to deprive the SSC of N$29.5 million and the so-called investments made were nothing more than a smokescreen.
2020-03-03 06:54:01 | 4 months ago