WINDHOEK - Windhoek High Court Judge Christi Liebenberg yesterday rejected an application by former CEO of the Roads Contractor Company (RCC), Kelly Nghixulifa to quash counts 1, 5, 6, 9 and 10 in the indictment he faces in relation to charges of fraud and contravening the ACC Act and the amendment of counts 2, 7 and 11 by deleting a section of the Criminal Procedure Act.
Nghixulifa, 59, who resigned after the ambitious supposed construction of B1 City opposite the Katutura State Hospital went belly-up, faces 10 charges of fraud and contravening the ACC Act with his business cronies Anna Ndoroma, 53 and 50-year old Hafeni Nginamwaami.
The charges against David Ndeshipanda Imbili, 43 were quashed after a successful application.
Nghixulifa alone face the ten counts Ndoroma faces four counts and Nginamwaami four counts.
At the centre of the matter is a loan of N4.8-million that Nghixulifa secured for Ae//Gams Engineering to purchase Erf 10485 along Independence Avenue.
Count 1 is contravening the Anti-Corruption Act by corruptly using office or position for gratification together with alternatives for fraud and theft in relation to the B1 City project.
Count 2 & 3 relates to fraud while count 4 deals with contravention of the Road Contractor Company Act, failing to disclose relations in contracts also in relation to B1 City.
Count 5 is contravening the Anti-Corruption Act and deals with using, holding, receiving or concealing gratification in relation to an offence or alternatively using property obtained from gratification on B1 City.
Count 6 deals with contravening the Anti-Corruption Act by corruptly using office or position for gratification in relation to the Cradle Investment.
Count 7 is contravening the Anti-Corruption Act by conspiring with another to commit an offence of corruption alternatively theft.
Count 8 is contravening the Road Contractors Company Act, failing to disclose relations in contracts in respect of Cradle Investments while count 9 relates to contravening the Anti-Corruption Act for corruptly using office or position for gratification by payment of Brian Nalisa FNB Home Loan mortgage arrears with RCC money alternatively theft.
Count 10 relates to fraud alternatively theft by false pretenses or theft for allegedly duping Murray & Roberts and or Rudiger Saunderson that Cradle Investment acted as project facilitator for the construction of the RCC head office and was entitles to a commission of N$150 000.
Ndoroma and Nginamwaami face counts 2, 5, 7 and 10. They are supporting the application by Nghixulifa, but is asking the judge to dismiss all the charges against them for the simple reason that the RCC is and never was a public body and therefore Nghixulifa was never a public person.
With regards to counts 1, 5, 6, 9 and 10 he argued that he is not a public official and that neither was the RCC a public body and with regards to the other counts they argued that the section in question only allows prosecution of directors when the corporate body is prosecuted as well. In this instance they argued they are prosecuted in the absence of the corporate body. Nghixulifa also wanted the court to declare that he cannot be prosecuted in terms of section 43(2) of the Anti-Corruption Act is unconstitutional.
Judge Liebenberg ruled that the section in the CPA the accused wanted deleted makes provision for the state to prosecute directors or the corporate body jointly or severally and the accused is thus not prejudiced. With regards to the challenge to the constitutionality of the ACC section, the judge said a constitutional challenge must be brought through a substantive application. Senior Counsel Vas Soni from South Africa represents Nghixulifa, Silas Kishi-Shakumu represents Ndoroma and Khadila Amoomo represents Nghinamwaami while the prosecution is represented by state Advocate Hesekiel Iipinge.
Judge Liebenberg postponed the matter to October 24 for the next review roll.