Kuvee Kangueehi
21 April 2008
Windhoek — Magistrate Elsie Schickerling, who is presiding over the Avid seven case, on Friday ordered that the Prosecutor General's Office amends the indictment and disclose the docket of the accused persons to the defence lawyers on April 30 when the case resumes.
Schickerling made the ruling as the prosecution team struggled to get the case off the ground in the Windhoek Magistrate's Court.
The high profile case implicates former Deputy Minister of Works, Transport and Communication, Paulus Kapia, Inez /Gâses, former Acting Secretary of the National Youth Council, Ralph Blaauw and his wife Sharon and Labour Ministry official and lawyer, Otniel Podewiltz, Brigadier Mathias Shiweda and Nico Josea in a dubious investment deal, which led to the Social Security Commission (SSC) losing N$30 million.
Without tackling the merits of the charges, the Prosecutor General's Office was largely exposed for rushing the case and doing its homework poorly with the charges against the seven being poorly drawn up.
Despite the confusion about the numbering of the accused persons, the charges against the seven were vague in the indictment. Instead of charging the accused persons individually, the State charged all seven collectively.
The defence lawyers argued that it did not make sense that the State was in a rush to arrest the accused persons when the prosecution team was not ready after working on the case for three years.
Sisa Namandje, who represents Kapia, said his client wants the case finalised without delay and requested that the State clearly stipulates the charges against him.
"In the indictment, the prosecution team speaks about they (the managers) and it is not clear whether all the charges apply to all the suspects."
Namandje said in order to avoid any delay, all the preliminary issues must be sorted out at the magistrate's court so that when the case gets transferred to the High Court in June a trial date is set and the case resumes.
Lucius Murorwa, representing Podewiltz, requested the State to separate the people facing charges of fraud and theft from those facing statutory charges.
He noted that through the High Court inquiry in 2005, everybody is aware of the details of the case and the role the accused persons played in the case and thus a separation must be made.
The prosecutor in the case, Linus Samaria, initially wanted the case to be transferred to the High Court and proposed the date June 19, 2008.
However, following the poor preparation by the Prosecutor General's Office, the matter will again be heard in the magistrate's court on April 30. In the indictment, the State charged the suspected persons on nine counts.
The first count is fraud or alternatively theft, while the remaining counts are a contravention of the Company Act.
Some of the accused were also charged with giving false evidence during the High Court inquiry and one such case is against Kapia, who falsely denied that the late Lazarus Kandara was involved with Avid Investment while he knew the contrary was true.
Josea is also being charged for falsely denying during the inquiry that N$14,9 million that was deposited into his personal account by his attorneys was part repayment of the funds he had transferred to Allan Rosenberg's bank account.
The State also charged Kapia, Podewiltz, Sharon and Ralph Blaauw, Shiweda and Josea for denying that they received cash payments from late Kandara's wife.
If indeed the Prosecutor General takes a decision to prosecute the seven, the case is expected to be a lengthy one as the State has listed 66 witnesses.
The witnesses include former SSC chief executive officer, Tuli Hiveluah, and other SSC top managers.
Secretary to Cabinet, Frans Kapofi, who was chairperson of the board of directors when the money went missing, is also listed as a witness.
Jeremiah Maphoroma from the Commercial Crime Branch of the South African
Police Service in Johannesburg has also been listed as a witness.
Charges As Laid By the State
IN its indictment, the State accuses all the seven suspects of fraud or alternatively theft and contravention of the Company Act on several occasions.
Count 1: Fraud
The seven accused persons jointly or acting in common purpose did wrongly and falsely and with intent to defraud, give out and pretend to the Social Security Commission (SSC) and its management that:
- Avid Investment was an established investment company with a proven investment track record;
- Avid has established shareholders and that it was backed by prominent Namibians;
- If the SSC advanced the sum of N$30 million, the amount would be invested for four months in a fixed interest bearing call account at the rate of 14,6 percent and the money would be kept in a scroll account with Standard Chartered Bank and would not be moved from that account either by Avid or their traders;
- Paulus Ilonga Kapia and Inez /Gâses will solely handle the SSC investment portfolio of N$30 million;
- Lazarus Alfredt Kandara had nothing to do with Avid Investment Company and was not involved at all in the affairs and running of Avid and that he would not handle the investment portfolio;
- If the SSC pulled out of the deal, it would be penalised with an amount of not less than N$6 million excluding costs like fees and interest and Namibia as a country, would be excluded from joining the World Trade;
- The whole amount of N$30 million would be invested and the maturity value would be N$31479122 and the maturity date would be May 24, 2005.
The accused did then and there by means of the said false pretences induce the SSC and Tuli Hiveluah, Avril Green and Gideon Mulder to the actual or potential loss and prejudice to the SSC.
Alternatively Theft:
The accused persons through Avid Investment received into their possession the sum of N$30 million from the SSC and its management for the purpose of investing the said amount on behalf of SSC for a period of four months ending May 31, 2005.
The accused persons not regarding their duty to pay over the said sum of money to the SSC but on the contrary did, wrongfully, unlawfully and intentionally steal, appropriate and convert the same to their use.
Count 2: Contravening of the Company Act.
- Reckless or fraudulent conduct of business
Count 3: Contravening of the Company Act.
- False statement by directors and others.
Count 4: Contravening of the Company Act.
- Failure to keep accounting records.
Count 5: Contravening of the Company Act.
- Failure to lodge consent
Count 6: Contravening of the Company Act.
- Failure to keep register
Count 7: Contravening of the Company Act.
- Failure to keep minutes or minutes book
Count 8: Contravening of the Company Act.
- Failure to keep and sign attendance book
Count 9: Contravening of the Company Act.
- False evidence during the High Court hearing.
Note that the charges above are a summarised version of the indictment and were compiled by Kuvee Kangueehi.
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