Aupindi's appeal dismissed
The former NWR boss was unsuccessful in his bid to have corruption charges against him and a co-accused set aside.
17 July 2017 | Justice
Aupindi had appealed against the judgment of the High Court after it dismissed his and his co-accused, Antonio Di Savino’s, application to review and set aside criminal proceedings before the Windhoek Magistrate’s Court.
The full bench was made up of Judges of Appeal Sylvester Mainga, Elton Hoff and Acting Judge of Appeal, Theo Frank.
“The refusal by the prosecutor-general to terminate the proceedings against the appellant and Savino, who is cited in the application as tenth respondent, could thus not be faulted,” the court found.
The highest court further held that the statements containing the alleged untoward conduct of the first respondent amounted to inadmissible hearsay evidence.
It concluded that Aupindi and Savino had failed to establish the facts necessary for them to either infer bias or a reasonable apprehension of bias.
“The appeal is dismissed with costs,” the Supreme Court ruled.
The criminal trial has not been finalised because it was interrupted by a recusal application.
Aupindi and Savino are both on trial for various charges under the Anti-Corruption Act.
They have both pleaded not guilty.
The trial was presided over by Magistrate Helvi Shilemba.
The State led evidence to establish that the appellant had not paid the costs involved in the installation of a swimming pool at his residence.
At the conclusion of the state case, both accused applied for discharge on all charges.
However, Shilemba dismissed the application and postponed the trial to a later date.
At the resumption of the trial, Aupindi called a certain Mr MacKay who is a former policeman and detective who he had requested to do certain investigations on his behalf.
In his testimony, the witness produced statements that he had procured from certain persons with allegations that Shilemba and the prosecutors were plotting to convict him on the charges he is facing, prompting Aupindi and Savino to make an application for recusal of the magistrate, saying they would not get a fair trial.
Shilemba after hearing the evidence dismissed the application on the basis that the duo failed to establish facts to prove that there was reasonable apprehension of bias on their part.
Aupindi and Savino dissatisfied with the ruling, brought a review application in the High Court to set aside Shilemba’s ruling.
However the High Court dismissed the review application and referred the case back to the Magistrate’s Court to proceed with the criminal trial against the two.
Aupindi in his appeal argued that the investigation by an official of the Anti-Corruption Commission was flawed and that the official failed to take a statement from the owner of the entity, a certain Mr Kühn, who had installed the swimming pool and who corroborated his version and Savino’s.
He further argued that the prosecutor should not have proceeded with the trial because the prosecutor-general was unaware of the corroborating version of Kühn when she decided to proceed with the prosecution.
In the recusal application the bone of contention was that the statements presented were sworn statements that indicated untoward conduct of the first respondent and this in itself was sufficient to create a reasonable apprehension of bias.