Battlelines drawn over judge’s recusal refusal

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In the dock… From left: Kongo Mokaxwa, Yang Fan and Teckla Lameck are pictured in court.

Windhoek

The battlefield was the Supreme Court and the combatants the former Commissioner of the Public Service Commission, Teckla Lameck, and her co-accused against a decision by Judge Maphios Cheda.

The battle centred on Judge Cheda’s refusal to recuse himself from their trial for alleged bias. The adjudicators were Judges of Appeal Petrus Damaseb (Deputy Chief Justice), Dave Smuts and Elton Hoff, who heard the arguments of the contending sides yesterday.

The main question is whether Judge Cheda will continue to preside over one of the most high profile fraud cases in Namibian history, or whether the trial will start afresh before a new judge.

The warriors were Senior Counsel Raymond Heathcote, who appeared on behalf of Lameck, and Advocate Danie Small assisted by State Advocate Jack Eixab, representing the Prosecutor General and indirectly Judge Cheda.

Lameck fired the first salvo when she lodged the application in her personal capacity and on behalf of her co-accused, Jerobeam Kongo Mokaxwa and Chinese citizen Yang Fan, when they failed to remove Judge Cheda from the trial after he refused to declare certain bank records inadmissible.

The judge in June 2014 dismissed the application and ordered the records admissible.

Heathcote SC argued that the judge in essence pre-associated himself with the State when he found that “warrants” issued by a magistrate are admissible, while the defence objected to summonses issued by the director of the Anti-Corruption Commission.

While he did refer to warrants in his judgment on the admissibility of the summonses, the judge in response to Lameck’s claim of bias said this came up because the defence in their plea explanations already made reference to warrants that will be objected to.

Heathcote claimed that the judge made a fundamental error when he found that no real evidence of bias exists. According to Heathcote a “reasonable, objective person would find that a possibility for bias does exist”.

He said irreparable harm could be done to the accused if they are to sit through a criminal trial and be convicted, only to be exonerated on appeal, because of the presiding officer’s pre-destined mindset.

Small argued that the judge made no misdirection when he used the word ‘warrants’ instead of summonses. According to Small, there is no evidence of bias whatsoever. Therefore, he asked the Supreme Court to dismiss the application.

The appeal judges indicated they would reserve judgment for another day.

Lameck, Mokaxwa and Fan are accused of committing fraud counting into millions of Namibian dollars. The State is alleging that that the trio defrauded the government and the Swapo company, Namib Contract Haulage.

While Lameck and Mokaxwa alone are accused of defrauding the Swapo-owned company where they previously worked, with at least US$144 000 for the purchase of four tipper-trucks, they together with Fan are accused of a range of charges under the Anti-Corruption Act.

It is alleged that Lameck, Fan and Mokaxwa duped government through the Ministry of Finance to pay an inflated price of US$55 348 800 for scanners to be used at airports and border posts.

The State alleges the price was inflated by US$12 828 800, allegedly meant as “commission” for Teko Trading, who facilitated the transaction.

The other charges – Lameck faces 18, Mokaxwa 12 and Fan 6 – relate to transgressions of the Immigration Control Act, the Prevention of Organised Crime Act and further contraventions of the Anti-Corruption Act.

 

 

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