Recusal Ruling Reserved in Lameck Trial

A RULING that might have the effect of sending the High Court trial of former Public Service Commissioner Teckla Lameck and two co-accused back to square one is due to be delivered on 14 November.

Judge Maphios Cheda set the date for the delivery of his ruling on an application for his recusal from the trial of Lameck, her business partner, Kongo Mokaxwa, and Chinese national Yang Fan after he heard oral arguments on the recusal bid in the Windhoek High Court yesterday.

Lameck (53), Mokaxwa (35) and Yang (43) last week gave notice to Judge Cheda that they would apply for his recusal from their trial, for the proceedings that have taken place in the trial since its start in April last year to be cast aside, and for a new trial to begin from scratch before another judge.

They are basing their request for the judge’s recusal on a ruling that he delivered on 25 June. In that ruling, Judge Cheda 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.

In an affidavit filed at the High Court last week, Lameck 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 though those search warrants, Lameck said.

She claimed that Judge Cheda prejudged the issue about the validity of the search warrants, and said she had to conclude that the judge “closed his mind regarding the objection raised by the accused and predetermined an issue that was not before him”.

Senior counsel Raymond Heathcote argued yesterday that it was clear that in his ruling Judge Cheda referred several times to search warrants instead of summonses and that the judge also quoted the full text of a search warrant that had been authorised by a Windhoek magistrate, whereas the search warrants used by the ACC have not yet been challenged during the trial.

Heathcote argued that the three accused have a reasonable suspicion that they would not receive a fair trial, with the result that Judge Cheda would have to recuse himself.

The prosecution opposed the application for the judge’s recusal.

State aocate Jack Eixab argued that the mere fact that the judge mentioned search warrants in his ruling did not justify a fear of bias on the judge’s part or meant that such a fear was reasonable. The innocent or inaertent use of the incorrect terminology also was not a reason for a reasonable person to fear that the judge was biased, Eixab argued.

He pointed out that in her affidavit Lameck made similar human errors, such as using the wrong first name when she referred to Judge Cheda, and referring to summonses when she meant to refer to search warrants.

The three accused will still have their chance to challenge the search warrants used by the ACC when that issue arises later in the trial, Eixab said.

Twenty State witnesses have already testified during the trial, which started with the three accused pleading not guilty to all charges against them.

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.

Source : The Namibian