Kapia On Attack Against Eight Charges

THE defence lawyer representing National Assembly member Paulus Kapia yesterday launched an attack on the legal basis of most of the charges that Kapia is facing in connection with the botching of a Social Security Commission investment of N$30 million in early 2005.

Kapia – and by extension also his six co-accused – cannot be prosecuted under a law that is no longer in existence after it was repealed in its entirety, Kapia’s defence lawyer, Sisa Namandje, argued before Judge Christie Liebenberg in the Windhoek High Court on what was supposed to be the start of the trial of the seven accused. Namandje argued that because the Companies Act of 1973 was repealed and replaced with a new Companies Act in November 2010, Kapia cannot be put on trial in terms of a law that no longer exists.

He also argued that the new Companies Act does not contain a transitional provision that would have kept some of the provisions of the previous Companies Act alive after that law was repealed and that would have enabled the State to still charge and prosecute someone under the 1973 law.

Namandje asked Judge Liebenberg to quash the eight charges in terms of the Companies Act against Kapia. If the judge rules in his favour, the same charges against the other accused would also fall away.

State aocate Ed Marondedze, who is leading the prosecution team in what will be the trial of Kapia and his co-accused, said the starting point should be the Constitution’s prohibition of the prosecution of anyone for something that did not constitute an offence at the time it was committed. At the time that the seven accused before the court were charged and first appeared in court, the Companies Act of 1973 was still in force and valid, Marondedze said. As a result, the charges under the Companies Act are also still valid and the accused should be put on trial on those charges, he argued.

Defence lawyers Richard Metcalfe, Werner Boesak, Christie Mostert and Slysken Makando, who are representing Kapia’s co-accused, supported Namandje’s argument.

Judge Liebenberg is expected to make a ruling on the attack on the charges tomorrow.

Kapia, Nico Josea, Inez Gacircses, lawyers Otniel Podewiltz and Sharon Blaauw, the latter’s husband, Ralph Blaauw, and retired Namibian Defence Force Brigadier Mathias Shiweda are all charged with a count of fraud, alternatively theft, in connection with an investment of N$30 million that the Social Security Commission placed with an asset management company, Avid Investment Corporation, in January 2005.

Kapia, Gacircses, Podewiltz and Mrs Blaauw were directors of Avid Investment Corporation. The prosecution is alleging that Mr Blaauw and Shiweda associated themselves with the company, while Josea was an associate of the late Lazarus Kandara, who registered and in effect ran Avid.

Most of the investment of N$30 million was channelled to an asset management company of Josea, Namangol Investments, which transferred N$20 million to a South African bank account. Josea allegedly later received close to N$15 million back from the holder of the South African bank account, one Allen Rosenberg. The prosecution is alleging that Josea thereafter dealt with that money “as if it belonged to him”.

By late May 2005 Avid was not able to pay back the SSC’s N$30 million and the interest earnings it had promised to the SSC. In July 2005, the SSC had Avid placed under provisional liquidation. Kandara shot himself on 24 August 2005, shortly after he had been arrested in connection with the disappearance of the SSC’s money.

Except for being charged with fraud, the seven accused also face charges of reckless or fraudulent conduct of business and giving false evidence at a High Court enquiry into the financial collapse of Avid. Both of those charges are under the 1973 Companies Act.

The four former directors of Avid are further charged with another six counts under the 1973 Companies Act, in which it is alleged that they had failed in their statutory duties as directors of the company by for instance failing to keep records of their activities as directors and failing to keep proper accounting records for the company.

Source : The Namibian