13 February 2013

Namibia: Teko Partners Lose Round Against State

AN ATTEMPT by Public Service Commission member Teckla Lameck and her business partner and co-accused, Kongo Mokaxwa, to force the prosecution to provide them with more detail on the criminal charges they are facing in the High Court ended in failure this week.

In a judgement delivered in the High Court in Windhoek on Monday, Acting Judge Kobus Miller dismissed an application by Lameck and Mokaxwa for an order to compel the prosecution to provide them with further particulars of the charges against them.

Acting Judge Miller however directed the State to amend the indictment in which the charges against Lameck (52), Mokaxwa (33) and Chinese national Yang Fan (42) are set out, to exclude all allegations based on the definition of the term "corruptly" as it appeared in the Anti-Corruption Act of 2003.

Lameck and Mokaxwa last year succeeded with a constitutional attack on a part of the Anti-Corruption Act, when three judges of the High Court ruled that the definition of "corruptly" in the Act was unduly vague.

Lameck and Mokaxwa attacked the Anti-Corruption Act's definition of the term "corruptly" as being unreasonable, vague and too wide.

The Act defined "corruptly" as meaning "in contravention of or against the spirit of any law, provision, rule, procedure, process, system, policy, practice, directive, order or any other term or condition pertaining to any employment relationship; any agreement; or the performance of any function in whatever capacity".

The remainder of the Anti-Corruption Act remains intact, and it would be up to courts to interpret what is meant by the word "corruptly" where it is used in other parts of that law, the judges indicated in their judgement.

Lameck, Mokaxwa and Yang are accused of having defrauded the Ministry of Finance of millions of dollars with the supply of Chinese-made X-ray scanning equipment to Namibia's customs authorities.

In his judgement on Monday, Acting Judge Miller noted that the charges against them are set out in an indictment running over 35 pages. The summary of substantial facts on which the prosecution bases its charges is set out over an additional eleven pages.

According to the prosecution the three accused are already in possession of all of the documentation, information and witness statements on which the prosecution is to be based, Acting Judge Miller also noted.

The test in an application to compel the prosecution to provide further particulars is whether the accused have a reasonable need for the additional information to prepare their defence, he remarked.

Lameck and Mokaxwa do not say that the information they are requesting is not available to them or is ambiguous, contradictory or confusing, he stated.

In his view a reading of the indictment and the summary of substantial facts sufficiently inform Lameck and Mokaxwa of the case they have to meet, the judge said.

Lameck, Mokaxwa and Yang are facing charges over an alleged corrupt deal in which Chinese-made security scanning equipment was bought by the Ministry of Finance in 2008.

It is alleged that the price of the equipment was inflated to enable the manufacturer of the equipment, Nuctech, which was being represented by Yang, to pay a "commission" of at least US$12,828 million to Teko Trading, a close corporation of Lameck and Mokaxwa.

Their trial is scheduled to start on April 16, with court dates up to May 15 reserved for their case. Further trial dates from August 1 to September 13 have also been reserved.

Senior counsel Raymond Heathcote and Deon Obbes, instructed by Sisa Namandje, represented Lameck and Mokaxwa in the case before Acting Judge Miller. Chief Prosecutor Danie Small appeared for the State.

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