WINDHOEK - The office of the Prosecutor General yesterday applied to be granted leave to appeal the ruling of Windhoek High Court Judge Christi Liebenberg that effectively sunk their case against Teckla Lameck and her business partner in Teko Trading, Jerobeam Kongo Mokaxwa.
Chinese national Yang Fan is also the co-accused in this protracted case. The judge ruled as inadmissible crucial evidence they obtained through disputed summonses issued by the Anti-Corruption Commission (ACC) Director Paulus Noa that granted ACC investigators access to the bank records of the accused at three banking institutions and cellphone records as well as communications with the Ministry of Home Affairs and Immigration.
Judge Liebenberg also declared six search and seizure warrants the ACC used to search the premises of Teko Trading and Nuctech Company Limited, Nuctech Hong Kong and the Ministry of Finance and confiscate computers and documents from them was obtained illegally last July.
The appeal is however not against the ruling on the warrants, but against the ruling on the summonses only.
It is alleged Lameck, Fan and Mokaxwa duped government through the Ministry of Finance to pay an inflated price of US$55 348 800 for scanners to be used at airports and border posts.
In fact, the state alleges, the price was inflated with an amount of US$12 828 800 meant as ‘commission’ for Teko Trading who facilitated the transaction.
Lameck and Mokaxwa alone faces charges that they, while Mokaxwa was employed there and Lameck was the board chairman of Swapo owned company, Namib Contract Haulage, duped the company into buying them four tipper trucks valued at US$144 000.
The other charges - Lameck faces 18, Mokaxwa 12 and Fan 6 - relates to transgressions of the Immigration Control Act, the Prevention of Organised Crime Act and further contraventions of the Anti-Corruption Act.
Lameck, Mokaxwa and Fan denied guilt on the charges they face at the start of their new trial after three judges of the Supreme Court upheld their suspicion of bias against the judge that presided over their original trial, Maphios Cheda and removed him from the trial and replaced him with Judge Liebenberg.
The judge postponed the matter to February 19, for the ruling on the application and set down the matter for resumption of trial to July 22 to July 26 and September 02 to 13.
In his ruling on the admissibility of the summonses Judge Liebenberg said the officer that served the summons to the recipients was not authorised in writing to access the bank records of the accused persons and accordingly had no mandate to access the bank records and thus acted ultra vires. He further said that the net effect of the ACC’s initiation of procedure not prescribed by law exceeded its jurisdiction, whereby it unlawfully came into possession of evidential material it now seeks to produce against the very same persons whose fundamental rights have been infringed.
“In this instance, the ACC through the actions of the Director-General chose to adopt the procedures, as it did, when issuing the summonses. The correct procedures were available, but not followed. This rendered the summonses invalid and renders the evidence obtained consequential thereto unlawful. The Constitution guarantees a fair trial – which include pre-trial procedures – whereby the accused’s dignity and interests must at all times be respected and protected by the courts. To allow evidence that was unlawfully obtained (emanating from invalid summonses) would result in a gross violation of the accused persons’ fundamental rights to privacy and a fair trial, guaranteed under the Constitution,” Judge Liebenberg stressed.
2019-01-31 09:27:15 2 months ago