Ruling on Magistrate recusal from Aupindi trial postponed

WINDHOEK: A ruling in a case in which former Namibian Wildlife Resorts (NWR) Managing Director Tobie Aupindi and co-accused businessman Antonio di Savino asked for the recusal of the magistrate presiding over their alleged corruption trial, will be made public on Friday next week.

On 14 October 2013, defence lawyers, Louis Du Pisani and Garth Joseph, who are representing the two men in their alleged corruption trial in the Windhoek Magistrate’s Court, approached the Windhoek High Court with an urgent application.

In the application, they had asked the court to issue an order for the recusal of Magistrate Helvi Kauna Shilemba from the trial.

Judgment on the application for the recusal of the Magistrate was supposed to be handed down on Wednesday morning, but High Court Judge Kobus Miller, who presided over the application, could not do so because he was not able to finish writing the judgment on time.

‘The judgment on the application for the recusal of the magistrate is not yet ready. I was not able to finish writing the judgment on time due to other official commitments. The judgment on this matter will now be handed down on Friday next week, 29 January 2015, ‘ said Judge Miller as he postponed the case today.

In the pending recusal application, Aupindi and Di Savino had asked the High Court to review Magistrate Shilemba’s refusal to recuse herself from their trial during February 2013.

Earlier newspaper reports carried by the local English daily ‘The Namibian’, had it that during February 2013, Aupindi’s former defence lawyer Richard Metcalfe presented the Windhoek Magistrate’s Court with a statement from a witness who claimed to have heard the prosecutor in the trial allegedly saying that the magistrate had said that she would make sure that Aupindi goes to prison, irrespective of the evidence or lack of it against him.

According to the reports, based on that statement and the hearsay claims in it, Metcalfe asked Magistrate Shilemba to recuse herself from the trial.

However, the magistrate refused the request in July 2013, prompting Metcalfe to announce his withdrawal as Aupindi’s defence lawyer.

Defence lawyer Joseph is now representing Aupindi following the withdrawal of Metcalfe.

Public Prosecutor, Arrie Husselmann, is representing the State in the two men’s alleged corruption trial, which began in February 2013.

The two local business personalities made another appearance before Magistrate John Sindano along Luderitz Street here on Wednesday last week, when they were informed that their trial would resume on 11 March this year (2015).

In the trial, it is alleged that Di Savino paid for a N.dollars 50 000 swimming pool which was installed at Aupindi’s home in return for tenders for the refurbishment of the parastatal’s resorts.

The 36-year-old Aupindi and his co-accused Di Savino, whose age was not given, had already entered not guilty pleas to a number of charges under the Anti-Corruption Act of 2003 at the start of their corruption trial in February 2013.

The two men each pleaded not guilty to a main count of allegedly corruptly providing false information to an authorised officer; as well as an alternative count of attempting to defeat or obstruct the course of justice.

The duo had entered their pleas as per Section 119 of Namibia’s Criminal Procedures Act, and as per instruction from their respective defence lawyers.

The two accused’s case suffered a heavy blow in February 2012 when the Windhoek Magistrate’s Court dismissed their application for discharge.

As a result, they were put on their defence.

The unsuccessful applications for discharge were brought before court in terms of Section 174 of the Criminal Procedures’ Act, the defence lawyers stated at the time.

These lawyers wanted the court to discharge their clients on the grounds that there had been no prima facie evidence presented before court at that stage of the trial to indicate that their clients were involved in the alleged corruption as the State claimed.

Public Prosecutor Arrie Husselmann, however, had asked the court to dismiss the discharge application, arguing that the accused should testify before court.

Evidence contained in a summary of substantial facts in the charge-sheet has it that the former NWR boss had provided false information to an investigating officer of the Anti-Corruption Commission (ACC), William Lloyd, by stating that he had paid N.dollars 50 000 in cash to local company LIC Pools for a swimming pool installed at his house along 25 Kestrel Street, Hochland Park.

The allegation against Aupindi is that he did not pay for the swimming pool himself, and that Di Savino in fact paid for the pool as a kickback in exchange for tile tenders at NWR resorts.

Di Savino, like Aupindi, faces charges of providing false information to an ACC investigator, and attempting to defeat or obstruct the course of justice.

The former NWR chief left the parastatal at the end of December 2010, four months before his contract was due to expire.

Media reports at the time claimed that he received a ‘golden handshake’ of about N.dollars 4,5 million.

Aupindi and Di Savino are free on bail, which was extended until 11 March 2015 for the continuation of the trial.