Companies’ Act of 1973 under fire in Avid/SSC fraud trial

WINDHOEK: A decision by the State to charge suspects in the Avid Investment and Social Security Commission (SSC) fraud scam in terms of the now-repealed Companies’ Act of 1973, came under fire on Monday.

The trial of seven people charged with the alleged N.dollars 30 million fraud scam was about to kick off before High Court judge Christie Liebenberg on Monday morning, but defence lawyers representing the group quickly raised objections to a decision taken by the office of the Prosecutor-General to charge and prosecute their clients under the provisions of the now-repealed Companies’ Act of 1973.

The Companies’ Act, Act Number 61 of 1973, was replaced with the new Companies’ Act, Act Number 28 of 2004, which only came into operation on 01 November 2010.

“The whole Companies’ Act of 1973 has been repealed in totality by the Namibian parliament. Therefore, the seven accused persons cannot be put on trial in terms of an old law as the State wants to do.

We cannot prepare statements for the pleas of our clients in terms of provisions of a law which was repealed already. No court in this country will prosecute people under a law which no longer exists,” Sisa Namandje said in a notice of objections.

The other defence lawyers who supported the objections raised by Namandje were Advocate Richard Metcalfe, Christie Mostert, Werner Boesak and Slysken Makando.

Namandje further stated that when the legislature decides to repeal a law, it means that particular law is taken off the statute books.

“This means that nobody, including this court, is allowed to apply that law. Our clients cannot be put on trial under the provisions of a law which is no longer applicable in the country,” he reiterated.

In the result, the defence lawyers in unison asked the court to order that these charges against their clients be quashed, and the accused persons be discharged.

In their response, State representatives Deputy Prosecutor-General Ed Marondedze and State Advocate Cliff Lutibezi asked the court for the accused persons to be put on trial on the charges in terms of the Companies’ Act of 1973.

The case was, thereafter, postponed to Wednesday this week in order to allow both the defence lawyers and State representatives to provide the court with legal authority to support their objections and submissions.

The seven suspects in the matter were all directors in the little-known Avid Investment Asset Management Company, which allegedly obtained money from the SSC through its links in the ruling Swapo-Party.

The accused persons were all present in court today.

They are Windhoek-based businessman and Chief Executive Officer (CEO) of Namangol Asset Management Company Nico Josea; former Deputy Minister of Works, Transport and Communication Paulus Iilonga Kapia; Avid Investment’s Administrative Secretary Inez //Gases; former Acting Secretary-General of the National Youth Council (NYC) Ralph Blaauw; and his wife Sharon Blaauw.

The other two suspects are Labour Ministry official and lawyer Otniel Podewiltz, and retired Namibian Defence Force (NDF) Brigadier Mathias Shiweda.

The seven former Avid Investment directors are each separately charged with 10 counts of fraud, alternatively theft, corruption and giving false evidence in an inquiry in terms of the Companies’ Act.

In 2005, Avid Investment made headlines when it allegedly acquired N.dollars 30 million from the SSC, allegedly under dubious circumstances.

The money was then apparently invested in an offshore company, but it could later not be accounted for.

The disappearance of the money led to a High Court inquiry before Acting Judge Raymond Heathcote in 2005.

Avid Investment CEO Lazarus Kandara, who was believed to be the kingpin in the Avid/SCC saga, allegedly committed suicide while under police escort in front of the Windhoek Police Station during the inquiry.

All suspects are free on bail of N.dollars 10 000 each, which was extended until their next court appearance on Wednesday this week.