Windhoek — Although not cast in stone, and perhaps too early to venture into speculation over the direction the judgment in the matter of NHE Chief Executive Officer, Vinson Hailulu, against the ACC, its director Paulus Noa, the National Union of Namibian Workers and the Windhoek Magistrate's Court will take, it does seem to raise issues concerning the powers of the ACC.

Last Friday, Acting Judge Johan Swanepoel of the High Court granted interim relief to National Housing Enterprise (NHE) CEO Vinson Hailulu on a number of accounts against the Anti-Corruption Commission (ACC) and its Director, Paulus Noa.

Legal representative of Hailulu, Sisa Namandje & Company, stated that this meant the following: the High Court, on an interim basis, reviewed and set aside the decision of the ACC and Noa to conduct an investigation against Hailulu.

Second, the High Court, on an interim basis, reviewed and set aside the decision of the ACC and Noa that the investigation of allegations against Hailulu be conducted by the ACC.

Third, also on an interim basis, the High Court declared Hailulu's arrest by two ACC officials on November 27, 2008 as unlawful, and further set aside any process issued by the Magistrate's Court, including bail conditions imposed on him as a result of the arrest.

Fourth, the High Court declared, on an interim basis, the criminal proceedings pending at the Windhoek Magistrate's Court as invalid.

This means that a decision by magistrate Elsie Schrickeling on November 27, 2008 for Hailulu to reappear before the court this month on charges of corrupt practices is invalid.

Hailulu was arrested on November 27 last year at the office of the NHE by two ACC officials, and taken to the Windhoek Police Station where eight charges were laid against him, before he appeared in the Magistrate's Court on the same day where he was given bail of N$30000.

He had to hand in his travel documents and office key, and was instructed to report to the Windhoek Police Station daily between 07h00 and 10h00.

In his affidavit, Hailulu applied to the High Court to have the ACC investigation initiated against him during 2007 set aside, as well as his arrest and subsequent bail conditions; that an order declaring Section 43 (2) of the ACC Act as being unconstitutional and of no force and effect, and that the criminal proceedings instituted against him be declared invalid.

Section 43(2) of the ACC Act under the heading "Corruptly using office or position for gratification" reads among others: " proof that a public officer in a public body has made a decision or taken action in relation to any matter in which the public officer, or any relative or associate of his or hers has an interest, whether directly or indirectly, is, in the absence of evidence to the contrary which raises reasonable doubt, sufficient evidence that the public officer has corruptly used his or her office or position in the public body in order to obtain gratification."

According to a press release issued by the ACC on the day of Hailulu's arrest, he was charged for "unprocedurally and corruptly" promoting an employee of the NHE from the position of Debt Collector to Sales Representative on March 19, 2008.

Further, he was charged for unprocedurally and corruptly appointing another employee for the position of Loan Accountant: Central Branch, while the interview panel reportedly recommended someone else.

The ACC also stated that Hailulu had, contrary to his employment contract, a consultancy business, the New Paradigm Consultancy, which had run a workshop with NHE board chairperson, Professor Gerard Tötemeyer, during February 2006 at Oshakati.

The ACC charged that Hailulu had also increased the S&T rate for Tötemeyer to N$1500 per day, instead of the approved daily allowance of N$400.

He was further charged for reportedly misappropriating company money to the value of N$1545 on December 12, 2006; that he reportedly requested a cash withdrawal of N$6000 from a company account under the pretext that the entire amount was to be paid to casual workers, while the required amount was N$4455; and he allegedly claimed full travelling and subsistence allowance and accommodation for himself and his family during the SADC Housing Games in Walvis Bay in 2006. On this trip, the ACC said, Hailulu and his wife had stayed in separate rooms for which the NHE paid.

Furthermore, said the ACC, on May 13, 2006, Hailulu had allegedly used the company credit card to do private shopping at Pick 'n Pay.

The ACC stated that Hailulu had "corruptly enriched" himself by making use of the company credit card to pay for his and Tötemeyer's accommodation while they were both paid S&T at a rate that had covered accommodation and meals in Beijing, China.

The ACC statement ended with this remark: "The ACC once again strongly warns particularly the captains of State-Owned Enterprises and other public bodies that abuse of office for gratification or self-enrichment shall not be tolerated."

It continued: "The era for turning these public institutions into private cash cows is over."

Sisa Namandje & Company, on Hailulu's instruction, pointed out in the press statement that Hailulu would, in due course, through a press statement, inform the public "of all the circumstances surrounding this matter [his arrest and subsequent application before the High Court for a relief] and shall publicly expose the most irregular and unlawful way in which he was dealt with by the Anti-Corruption Commission, its Director [Noa] and its agents."

During the High Court arguments, Hailulu's legal counsel, Theo Barnard, argued that the ACC had failed to take the provisions of Section 18(2) of the ACC Act into consideration in the decision to conduct an investigation into the allegations against Hailulu.

According to Section 18(2), the ACC should consider the seriousness of the conduct or involvement to which the allegations relate; and to consider whether the allegations are frivolous or vexatious, or made in good faith; or whether the conduct or involvement to which the allegations relate has been the subject of investigation or other action by an appropriate authority; or whether or not, in all circumstances, the carrying out of the investigation for the purposes of the ACC Act in relation to the allegations is justified and in the public interest.

Barnard argued that the allegations against Hailulu did not amount to evidence of any involvement of any "corrupt practice", as set out in the ACC Act. An ACC publication, 'ACC: Frequently asked Questions' describes "corruption" as a "contravention of or against the spirit of any law, provision, rule, procedure, process, system, policy, practices, directive, order or any other term or condition pertaining to (a) any employment relationship; (b) any agreement; or (c) the performance of any function in whatever capacity."

Gratification, according to this definition broadly means gifts/loans, fees/rewards, commissions, rights, privileges, influences, promises, and so on, which may influence decision-making processes.

Barnard said the proper prior decision taken to investigate was not complied with, and that the decision to investigate, was prompted by ulterior motives and taken in bad faith, and for the "purposes of achieving the unlawful aim of undoing or reversing the retrenchment of former employees of the NHE, and/or the unlawful aim of removing" Hailulu from his position of CEO of the NHE.

Importantly for the ACC and its mandate, is that Barnard argued that the commission has "no powers to affect any arrest prior to a decision of the Prosecutor General", other than for the purposes of arresting a person who is found to have perpetrated a recent or contemporaneous offence.

He said at the time of the arrest, the Prosecutor General had not taken any decision whether to prosecute or not, and Hailulu had not been charged with recent and simultaneous charge.

Acting on behalf of the ACC, advocate Harald Geier, argued that Hailulu's case, as case number has already been issued by the police, should have been dealt with in a criminal court "in the normal course", adding that the ACC's actions had been taken in terms of the Criminal Procedures Act.

Geier noted that the relief sought was essentially aimed at stopping the criminal prosecution that was instituted against Hailulu, and that he [Hailulu] should have sought relief in the criminal courts, and not a civil court.

Moreover, the Office of the Prosecutor General was not cited in the application for relief as a respondent, and it is not clear whether this office can continue with steps against Hailulu, although it was speculated in legal circles that such a prosecution could hence continue.

Geier contended that the Office of the Prosecutor General did indeed have a "legal interest" in the case, and that it may be "affected prejudicially" by the court's judgment, but was of the opinion that Hailulu has "no success to be released from prosecution", as the Prosecutor General is not party to any order the court has granted.

The Office of the Prosecutor General can therefore still decide to prosecute, or not, or to delegate this function back to the ACC, according to a legal expert.

And because the court granted an interim relief, opposing affidavits can be lodged before a final relief is granted.

ACC Director Noa would not comment if this judgment, albeit of an interim nature, would at all have a legal effect on the operations of the ACC, and whether the ruling would stand in the way of the day-to-day operations of the ACC.

In the absence of reasons for the ruling, said other legal practitioners, it was difficult to establish the foundation of the interim review and what its effects could be on the ACC.

Noa was also adamant that the ACC had followed all the correct procedures in the Hailulu investigation, adding that since the ACC completed its investigation - before the urgent application before the High Court last Friday - and a docket has been filed with the Office of the Prosecutor General, it was unclear what the implications of the order was to the ACC in this matter.

He added that although the ACC did not get the go-ahead from the Office of the Prosecutor General to arrest Hailulu when it did, the ACC has the authority to make such arrests without prior permission from the higher office.

Would this case and the final order thereof have far-reaching implications for the ACC? This remains to be seen.