Ruling Awaited On Attack Against Avid Charges

A RULING on the objections that the defence lawyer representing National Assembly member Paulus Kapia raised against most of the charges being faced by Kapia and his co-accused in the Windhoek High Court is scheduled to be given tomorrow.

Judge Christie Liebenberg yesterday heard further arguments on defence lawyer Sisa Namandje’s application to have eight of the nine charges against Kapia quashed, before he postponed the case against Kapia and his co-accused to tomorrow for a ruling to be delivered.

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 the alleged embezzlement of 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 and that Josea was an associate of the founder of Avid, the late Lazarus Kandara.

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”.

Avid ended up being liquidated in July 2005, after it was unable to pay back the SSC’s investment and the interest earnings that had been promised to the SSC.

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 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.

Namandje has argued that Kapia – and also his co-accused – cannot be prosecuted on charges under the 1973 Companies Act any more, since that law was repealed in its entirety and replaced with a new Companies Act in November 2010.

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.

Although the other defence lawyers in the case backed Namandje’s arguments on Monday, one of the lawyers, Richard Metcalfe, broke ranks yesterday. Metcalfe told Judge Liebenberg that he would have to concede that the prosecution’s view on the point taken by Namandje was actually correct and that the charges against the accused cannot be quashed.

State aocate Ed Marondedze has argued that the accused are charged with committing acts that were an offence under the 1973 Companies Act at the time those acts were allegedly committed. The accused were also charged and made their first appearances in the High Court before the old law was repealed, Marondedze has pointed out.

In terms of the Interpretation of Laws Proclamation of 1920 the repeal of the 1973 Companies Act does not affect any investigation, legal proceedings, penalty or punishment under the repealed law, Marondedze has argued.

Source : The Namibian