The fraud and corruption trial of former Roads Contractor Company CEO Kelly Nghixulifwa and two of his business friends Anna Ndoroma and Hafeni Nginamwaami is set to start in October this year after numerous delays since 2016.
Windhoek High Court Judge Christie Liebenberg announced this last week after the defence counsels and the State finally agreed on dates. The three accused will enter pleas to charges of fraud and contravening the Anti-Corruption Act on 5 October, and the matter is set down to continue until 8 October and then again from 9 to 19 November this year.
At the centre of the matter is a loan of N$4.8 million that the 59-year-old Nghixulifwa allegedly secured for Ae//Gams Engineering to purchase Erf 10485 along Independence Avenue without declaring his interests in the company.
Nghixulifwa, who resigned after the ambitious supposed construction of B1 City opposite the Katutura Hospital went belly-up, is facing 11 charges of fraud and contravening the Anti-Corruption Act while the 53-year-old Ndoroma and Nghinamwaami (51) face four counts.
Nghixulifwa objected to eight of the charges and asked the court to quash three counts of corruptly using his office for gratification and two counts of fraud or alternatively that the State cannot rely on the provisions of section 43 (2) of the Anti-Corruption Act.
He argues that the RCC is not a public body and that he, therefore, was not a public officer and cannot be charged under this section.
Liebenberg refused the application and said it amounts to a constitutional challenge of the said section and would, therefore, require a substantive application to be supported by a founding affidavit and allowing the respondent(s) an opportunity to answer. “Therefore, in the premises, and after due consideration of the submissions made in favour of and against the court to invoke its powers to decide the constitutionality of Section 43(2), it is my considered opinion that a court should only decide the constitutional challenge once all interested parties, such as the prosecutor general, the attorney general, the director general of the Anti-Corruption Commission and any other interested party, are afforded the opportunity to intervene,” Judge Liebenberg stated.
He further said that in his view, the State has reason to invoke the provisions of the section and that the accused would not suffer any prejudice. For these reasons, the judge refused the application and Nghixulifwa brought an application to appeal the decision in the Supreme Court, which was also denied by Judge Liebenberg on the grounds that he feels the Supreme Court will not come to a different conclusion. The Chief Justice also dismissed the matter.
Nghixulifwa is represented by Milton Engelbrecht, while Ndoroma is represented by Silas Kishi-Shakumu. Defence lawyer Trevor Brockerhoff represents Nghinamwaami, while Hezekiel Ipinge appears for the State.
– rrouth@nepc.com.na