Defence strikes blow in trial of Lameck and co

THE prosecution in the trial of former Public Service Commission member Teckla Lameck and two co-accused suffered a setback in the Windhoek High Court yesterday, when a judge ruled that it may not make use of evidence gathered by the Anti-Corruption Commission through search warrants that the ACC obtained about nine years ago.

Six search warrants through which the ACC collected evidence during its investigation of the case that later landed Lameck, her business partner Kongo Mokaxwa, and Chinese citizen Yang Fan in the dock did not strictly comply with a section of the Anti-Corruption Act, and as a result had to be set aside, judge Christie Liebenberg has ruled.

With the ruling, judge Liebenberg set aside six search warrants that the ACC obtained from a magistrate in Windhoek at the end of June and start of July 2009. The ruling delivered a blow against the state’s case in the trial of Lameck and her co-accused, because its effect is that during the trial, the prosecution will not be allowed to present to the court evidence obtained through the search warrants. Judge Liebenberg ruled that the Anti-Corruption Act requires that a search warrant issued in terms of the act has to authorise an officer specifically mentioned in the warrant to enter and search premises and seize evidence.

The fatal flaw of the six search warrants obtained by the ACC and used during the investigation of the case was that the warrants were not addressed at any specific officer, but directed “all authorised officers” to search the premises mentioned in the warrants and seize evidence, like documents and computers mentioned in the warrant. With the right to privacy guaranteed under the Constitution, it deserves a high level of protection, and courts are obliged to employ a strict interpretation of legislative provisions relating to search and seizure warrants, judge Liebenberg stated in the ruling.

Lameck, Mokaxwa and Yang pleaded not guilty to all charges at the start of their trial before judge Liebenberg in May this year.

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.

Lameck and Mokaxwa are also accused of having defrauded the Swapo-owned Namib Contract Haulage, where Mokaxwa was employed and Lameck was a company director, by inflating the prices the company had to pay for buses and lorries that it ordered from China.

The three accused first went on trial before judge Maphios Cheda on the same charges in April 2013, when they also pleaded not guilty on all counts. By mid-2014, though, after the testimony of 20 state witnesses had been heard, the trial came to a halt following a ruling in which judge Cheda dismissed the defence’s objections against summonses used by the ACC to gather evidence.

Following that ruling, the defence applied for judge Cheda’s recusal from the trial, based on arguments that he had prejudged objections that were still to be raised against the search warrants as well.

In June last year, the Supreme Court ruled that judge Cheda should step down from the case, and that a new trial had to start before another judge.

The retrial is scheduled to continue from 16 January next year.

The three accused are represented by Sisa Namandje and senior counsel Gerson Hinda. Deputy prosecutor general Dominic Lisulo and state advocate Constance Moyo are prosecuting.