ACC summonses withstand challenge

THE summonses through which the Anti-Corruption Commission accessed the banking records of former Public Service Commissioner Teckla Lameck, her business partner Kongo Mokaxwa, and Chinese national Yang Fan have withstood a challenge from the defence team in the fraud trial of Lameck and her two co-accused.

A ruling delivered in the Windhoek High Court yesterday has given the prosecution in the trial the go-ahead to make use of evidence about the bank account records of the three accused.

The defence team in the trial raised objections about the admissibility of the banking records in September last year. Judge Maphios Cheda dismissed those objections yesterday.

Following Judge Cheda’s ruling, the trial which started in April last year, is scheduled to continue from 7 August. Lameck, Mokaxwa and Yang have pleaded not guilty to all the charges they are facing.

The defence team argued in September that the summonses through which the ACC obtained bank account records that the prosecution is planning to use as evidence in the trial did not comply with the Anti-Corruption Act and did not meet the requirement of being sufficiently understandable.

Defence lawyers Gerson Hinda and Sisa Namandje also argued that the constitutional rights of their clients – specifically the rights to privacy, dignity, fair trial and fair administrative action – were infringed when ACC investigator William Lloyd used summonses issued by ACC director Paulus Noa to gather evidence in the form of banking records of the three accused.

Chief Public Prosecutor Danie Small argued that the summonses did not result in a violation of constitutional rights and were lawfully issued and used in terms of the Anti-Corruption Act.

In deciding the validity of the summonses it should be kept in mind that there was a very thin dividing line between individuals’ right to privacy and property on one hand and the need to achieve justice on the other, Judge Cheda said in his ruling. It is for that reason that the courts must play a balancing act in their quest to ensure that offenders are brought to book while at the same time upholding the protection of people’s fundamental rights, he said.

Judge Cheda said it was clear that the exercise of constitutional rights, including the right to privacy, was not and could not be absolute, but was subject to other parties’ rights as well.

He concluded that when Noa issued the summonses in question he had a genuine belief based on credible information at hand that an offence had been committed. The judge further found that the summonses were clear in respect of what official was being authorised to conduct searches and included sufficient details to make them understandable.

The defence’s objections were raised against testimony about a bank statement of Teko Trading CC, a close corporation of Lameck and Mokaxwa.

According to evidence already before the court Teko Trading had an agreement with a Chinese company, Nuctech, which was represented by Yang, to be paid US$12,8 million by Nuctech after the Chinese company had clinched a deal in May 2008 to sell X-ray scanning equipment to the Ministry of Finance at a total cost of US$55,3 million (then about N$477 million).

Lameck, Mokaxwa and Yang are charged with fraud in connection with the scanner supply contract between the Ministry of Finance and Nuctech and Teko Trading’s subsequent agreements with Nuctech.

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 Teko Trading.

Bank records explained by a previous prosecution witness in the trial indicated that more than N$42 million was transferred by Nuctech into Teko Trading’s bank account in March 2009 – less than two weeks after the Ministry of Finance had made an advance payment of US$12,8 million to Nuctech.