WINDHOEK - Teckla Lameck and her co-accused have scored another significant victory against the State in their ongoing mega-fraud trial when Windhoek High Court Judge Christi Liebenberg yesterday declared the summonses used to obtain access to their bank records unlawful.
The judge had already declared that six search warrants the Anti-Corruption Commission 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, in July last year.
The ruling comes in the wake of an objection from former Chair of the Public Service Commission, Teckla Lameck, her equal business partner in Teko Trading, Jerobeam Kongo Mokaxwa and Chinese national Yang Fan, raised against the admissibility of summonses issued on June 11, 2009 to access their bank records at three banks as well as their MTC records and their communications with the Ministry of Home Affairs and Immigration.
Lameck, Mokaxwa and Yang dubbed the Teko Trio 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.
It is alleged Lameck, Yang 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 face 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 Yang 6 - relates to transgressions of the Immigration Control Act, the Prevention of Organised Crime Act and further contraventions of the Anti-Corruption Act.
According to the provisions of the Anti-Corruption Act (ACA) before any investigation is launched, there must a complaint and a decision to investigate followed by an affidavit before summonses can be issued.
On the present facts, 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 said 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.
He went on to say the Commission’s conduct in this regard must be discouraged in the strongest of terms as the courts cannot allow persons or institutions to be subjected to an abuse of power on its part. “Although the ACC fulfils an important function in society with its main purpose to fight the seemingly unending scourge of corruption in this country, the Commission must be reminded that it is also subject to the Constitution and the law, moreover, that it must give effect to the provisions of the ACA, its creator, which brought it into existence,” the judge said before he declared the summonses invalid and the evidence inadmissible.
The two Namibians and the Chinese national were arrested on July 8 and 9, 2009 in Windhoek.
Lameck and Mokaxwa are currently free on bail of N$50 000.00 each and Yang on bail of N$1 million. They are represented by Sisa Namandje assisted by Sakarias Amoomo and the State is represented by Advocate Dominic Lisulo assisted by Advocate Constance Moyo.