Aupindi judgment put on ice, again

31 May 2018 | Justice

The trial of former Namibia Wildlife Reports (NWR) managing director Tobie Aupindi and Antonio di Savino, which has already stretched over more than five years, has again been postponed - this time to 24 October.

This was after Magistrate Helvi Shilemba failed to turn up at court yesterday. No reasons for her absence were provided.

The last testimony and closing arguments in the trial were heard late last year, after the Supreme Court dismissed an attempt by Aupindi and Di Savino to force the magistrate off the case.

In January this year they were scheduled to hear their verdict in the Windhoek Magistrate's Court, but Shilemba was not available, and the delivery of her judgement was postponed to 22 February.

Aupindi and Di Savino allegedly lied to an Anti-Corruption Commission (ACC) investigator in March and April 2010 by telling him that Aupindi himself had paid N$50 000 for the installation of a swimming pool at his house in Windhoek in 2006, while they knew that Di Savino had actually paid.

It is alleged that at the time the pool was installed, Di Savino was doing business with NWR, where Aupindi was still in charge.

The two accused suffered a heavy blow in February 2012 when the court dismissed their application for discharge.

“After carefully going through the evidence presented by both defence lawyers, Richard Metcalfe and Louis Du Pisani, and the prosecution team led by public prosecutor Arrie Husselmann, I came to the conclusion that the two accused persons have a case to answer before court,” said Magistrate Shilemba at the time.

The proceedings of the trial were remanded on 19 March 2012 until September 14, as Di Savino had to accompany his elderly mother to Italy, as she could not travel alone due to her age.

This was after an agreement reached by Metcalfe, Du Pisani and public prosecutor Erick Naikaku.

Despite the pending charges, Aupindi has been rising through the ranks of the Swapo Party and was elected as a member of the Swapo central committee at the ruling party congress in November last year.

He was also later elected as a member of the party's politburo.

Aupindi and Di Savino went on trial before Shilemba in February 2012.

The trial was halted for more than four years after Metcalfe and Du Pisani, representing Aupindi and Di Savino respectively, asked Magistrate Shilemba in February 2013 to recuse herself from the matter, based on claims there was a likelihood she was biased.

Both accused deny guilt on a main charge of corruptly providing false information to an authorised officer of the ACC, and an alternative charge of attempting to defeat or obstruct the course of justice.

The accused in October 2013 applied to the High Court to have the magistrate recused.

Not only did they want the removal of the magistrate from their case, they also applied for discharge, because there were “serious irregularities and illegalities” in the “investigation and prosecution process”.

This, they alleged, had tainted the “trial process in the magistrate's court and was exacerbated by the conduct of the presiding magistrate”.

In July 2015 they were informed by Magistrate Jarmaine Muchali that their trial will resume on January 20 the next year. The reason for postponement was the pending ruling in the recusal application.

The High Court dismissed their application in February 2016

Aupindi then persisted with an appeal to the Supreme Court in July 2017. His appeal was dismissed, with acting judge of appeal Theo Frank remarking in the judgement there was no proper evidence before the court to show any grave injustice or failure of justice was likely to occur if the trial proceeded before Magistrate Shilemba.

On 14 January this year the judgment in the trial was due to be delivered, but this did not materialise.

On 22 February 2018 the matter was again postponed in chambers on grounds that a defence lawyer had travelled overseas, resulting in the matter being pushed to March.

The case, which was on the 6 March court roll for judgment, had to be postponed as the presiding magistrate was unavailable.

FRED GOEIEMAN

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