Recusal Bid Fails in Lameck Trial

FORMER Public Service Commission member Teckla Lameck and her two co-accused in a partly heard trial in the Windhoek High Court have failed with an attempt to get another judge to deal with their case.

Judge Maphios Cheda declined an application from Lameck, her business partner, Kongo Mokaxwa, and Chinese national Yang Fan for his recusal from their trial, coupled with a request that the trial should start afresh before another judge, on Friday.

The three accused have failed to aance cogent reasons that would have justified his recusal, Judge Cheda said in the ruling in which he declined the recusal application.

He noted repeatedly that only 20 out of a possible 80 prosecution witnesses have so far testified in the trial. At this stage of the trial, the guilt – or not – of the three accused has not been determined yet, Judge Cheda said.

He also noted that there is a presumption that a judge would be neutral and impartial in a trial. Someone asking for a judge’s recusal from a trial bears an onus of rebutting that presumption of impartiality, based on an objective and reasonable apprehension of bias on the part of the judge, but that is an onus that Lameck and her co-accused have not been able to discharge, Judge Cheda said.

Lameck (54), Mokaxwa (35) and Yang (44) based their recusal application on a ruling that Judge Cheda delivered on 25 June, when he dismissed objections that the legal team of the three accused had raised in an attempt to stop the prosecution from using evidence about bank statements obtained through summonses that were issued by the director of the Anti-Corruption Commission.

They claimed that in his ruling Judge Cheda dealt with the validity of search warrants instead of summonses, with the effect that he made a ruling on a point not yet raised and argued before him.

Search warrants that were also used to collect evidence have not been challenged by the three accused and their team of defence lawyers yet, but would be questioned once the prosecution tries to use evidence obtained through those search warrants, Lameck said in an affidavit filed with the court.

Judge Cheda said in his judgement that the prosecution has thus far in the trial not tried to introduce evidence obtained through search and seizure warrants, and neither the court nor the defence knew if the State would try to rely on evidence gathered with the use of such warrants.

In respect of the defence’s argument that he referred not only to summonses, but also to warrants in his ruling in June, Judge Cheda noted that the defence itself also referred to both summonses and search warrants in the notice in which it objected against evidence obtained through the use of summonses issued by the director of the ACC.

Lameck, Mokaxwa and Yang pleaded not guilty to all charges with the start of their trial in April last year.

The charges include a count of fraud in connection with a transaction in which the Ministry of Finance bought X-ray scanning equipment at a total cost of US$55,3 million (then about N$477 million) from a Chinese company, Nuctech, which was represented by Yang, in early 2009.

The prosecution is alleging that the price of the scanning equipment was inflated to enable Nuctech to pay a “commission” of at least US$12,8 million to a close corporation of Lameck and Mokaxwa, Teko Trading CC, while Teko Trading played no role in the transaction between the ministry and the Chinese company.

Lameck and Mokaxwa are also accused of having defrauded the Swapo-owned Namib Contract Haulage, where Mokaxwa was employed and Lameck was the chairperson of the company’s board of directors. The State is alleging that Lameck and Mokaxwa inflated the price that the company paid for lorries imported from China in early 2007 by an amount of US$144 000, and in the process managed to have four lorries imported for themselves by in effect getting the company to pay for the trucks.

Following Friday’s ruling, the three accused have to return to court on 30 January.

Source : The Namibian