15 February 2013

Namibia: Delay Continues in SSC/Avid Case

THE seven people accused of fraud and other alleged crimes in connection with a bungled investment of N$30 million by the Social Security Commission in early 2005 appear likely to go on trial only next year, at the earliest.

Six of the seven accused made their latest pre-trial appearance in the High Court in Windhoek yesterday. Judge President Petrus Damaseb told them that he has been informed that the Supreme Court's judgement on the constitutionality of a section of the Criminal Procedure Act, which some of them have challenged, can be expected to be handed down before the end of this month, and that dates for their trial can now be set.

However, one of the defence lawyers involved in the case, Sisa Namandje, indicated to the judge that he would only be available for a trial by next year. With Namandje's client, Swapo Member of Parliament Paulus Kapia, indicating that he wants to be represented by Namandje and not by another defence lawyer, the court was left with the prospect that the trial would not start this year still.

The seven accused now have to return to court on March 14. By then they should receive more information about when their trial is expected to start.

They have been making repeated pre-trial appearances in the High Court since June 2008.

The events over which they are charged took place about eight years ago.

Kapia, Nico Josea, Ralph Blaauw, Inez /Gâses, Mathias Shiweda and lawyers Otniel Podewiltz and Sharon Blaauw are all charged with a count of fraud, alternatively theft, and a charge of reckless or fraudulent conduct of business, which is a contravention of the Companies Act, in connection with an SSC investment of N$30 million that was placed with an asset management company, Avid Investment Corporation, and channelled to another asset management company, Namangol Investments, in January 2005.

The money was supposed to be repaid with interest after four months. When Avid was not able to deliver on that undertaking the SSC went to the High Court in July 2005 to have the company liquidated.

Kapia, /Gâses, Podewiltz and Mrs Blaauw were directors of Avid, and also face six counts under the Companies Act in which they are accused of having failed to carry out their duties as directors, such as keeping proper records of the company's business.

The seven are all further charged with having given false evidence at a high-profile Companies Act enquiry into the financial collapse of Avid that was conducted in the High Court in July and August 2005.

Podewiltz alone is charged with corruption for having allegedly received a payment from the late Lazarus Kandara, alleged founder of Avid, while Podewiltz was employed with the Ministry of Labour.

The State is alleging that of the N$30 million that the SSC transferred to Avid to be invested, N$29,5 million was transferred to Namangol Investments, which was owned and run by Josea.

Of this money, some N$14,9 million landed in Josea's personal bank account in mid-March 2005, and he went on to deal with the money as if it was his own, it is also alleged.

Shiweda was not present in court yesterday. Judge President Damaseb was told that he had trouble with his car on his way to court. A warrant for his arrest was issued, but it is to be held over until the next pre-trial appearance on March 14.

The accused are all free on bail.

The ruling being awaited from the Supreme Court is on the constitutionality of a section of the Criminal Procedure Act which states that in a case in which a person is accused of making false representations - which is a central element of fraud charges - it is deemed, once it had been proven that a misrepresentation had been made, that the accused person had made that false representation while knowing that it was false.

This puts a reverse onus on an accused person to prove that he or she did not know that a misrepresentation that had been made was false. Such a reverse onus is unconstitutional, the people challenging that section of the Act have argued.

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