Teko duo in partial judicial victory

Some provisions of the Anti Corruption Act under which Teckla Lameck and Jerobeam Mokaxwa were charged in Windhoek High Court were declared unconstitutional and struck down.

A full bench of the High Court, where Judge Dave Smuts, Judge Elton Hoff and Acting Judge Kobus Miller served, declared as unconstitutional and removed from the Anti Corruption Act (ACA) the definition “corruptly” in its current form as defined in section 32 of the Act.

The section provided the backbone for the 18 charges that the duo were facing, which included fraud, alternative theft - three main charges under the Immigration Act, two charges under the Prevention of Organised Crime Act and a charge under the ACA, in which they were accused of having attempted or conspired to commit offences under the Act.

The section 32 states that; “in contravention of or against the spirit of any law, provisions, rule, procedure, process, system policy, practice, directive, order or any other term or condition pertaining to any employment relationship, any agreement or the performance of any function in whatever capacity.”

Advocate Jeremy Gauntlett on instructions of Sisa Namandje argued that the ACA seeks to make unlegislated norms binding by the definition of “corruptly” by incorporating contraventions of procedure, process, system, policy or practice. He said policies are not legal instruments and also referred to difficulties of establishing practices.

According to him, it was constitutionally impermissible to criminalise the non-compliance with non-binding measures or the spirit of those provisions by means of the statutory definition.
The court agreed on the unconstitutionality of the definition of “corruptly”, but Judge Smuts ruled that the same is not applicable to the definition of gratification.

The respondents in the matter were President of the Republic of Namibia, Minister of Justice, Pendukeni Iivula-Ithana (in her private capacity), Prosecutor-General, Attorney-General, Yang Fan, a Chinese national and Director of Anti Corruption Commission.

The applicants argued that the position of the Attorney-General and that of the Minister of Justice could not be filled by the same person.

However, Judge Smuts ruled that the Attorney-General, being a political appointee falling in the same category as a minister, can also be appointed as Attorney-General or vice versa. It can therefore not be impermissible in law and in conflict with the Constitution.

Lameck, Mokaxwa and Fan stood accused of a range of criminal charges, which arise from the supply of X-Ray equipment to the Ministry of Finance by Nuctech Company Ltd, a company incorporated in the People’s Republic of China for a sum exceeding US$55million which is close to N$440 million.

Nuctech allegedly entered into two contracts with a Namibian close corporation called Teko Trading CC in February 2009, in which the applicants each had a 50% members’ interest. One contract was described as an agency agreement and the other was for consulting services.

During March 2009, Teko received payments pursuant to invoices provided to Nuctech in a total amount exceeding N$42 million. In April 2009 further contracts were entered into between Nuctech and Teko.

The court ordered that respondents pay 20% of the applicants. Again, as part of the judgment issued by the judge the applicants are being ordered to pay 80% of the respondent’s cost.

Author: 
Fred Goeieman - Windhoek
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