While waiting for the Supreme Court to pronounce itself on the recusal of Judge Maphios Cheda from their trial, the former public service commissioner Teckla Lameck and her co-accused are back on the mentions role for the time being.
Deputy Chief Justice Petrus Damaseb, and Judges of Appeal Dave Smuts and Elton Hoff reserved judgment of the appeal.
Lameck lodged the appeal against the refusal of Judge Cheda to recuse himself from their trial for alleged bias, in her personal capacity, as well as on behalf of her co-accused Jerobeam Kongo Mokaxwa and Chinese citizen Yang Fan.
They made the application after they failed to have Judge Cheda remove himself from the trial after he refused to declare certain bank records inadmissible.
Judge Cheda in June, 2014 dismissed the application and ordered the records admissible.
It was yesterday ordered in the High Court their trial be moved to the mentions role before Judge Christi Liebenberg while they await the outcome of their Supreme Court appeal.
Judge Cheda is currently stationed at the Oshakati High Court. Lameck who was represented in the appeal by Advocate Raymond Heathcote SC argued that Judge Cheda’s decision not to recuse himself flies in the face of impartial justice. According to him, 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 ACC director.
Former deputy prosecutor general, Advocate Danie Small who represented the state in the appeal, assisted by State Advocate Jack Eixab, said the Supreme Court cannot interfere in a partly heard trial apart from in exigent circumstances. Such circumstances do not exist in the present case.
In his recusal judgment, in response to Lameck’s claim of bias, the judge said that while he did refer to warrants in his judgment on the admissibility of the summonses, it came up because the defence already in their plea explanations made reference to warrants that will be objected to.
Heathcote said 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.
According to him the Supreme Court should set aside Judge Cheda’s decision not to recuse himself from the trial, order that the judge recuse himself, and refer the case back to the prosecutor general for a new decision on how to proceed with the matter.
Lameck, Mokaxwa and Yang are accused of committing fraud running into millions of Namibian Dollars.
The state alleges the trio defrauded big time the government and Swapo company Namib Contract Haulage (NCH).
While Lameck and Mokaxwa alone are accused of defrauding the Swapo owned company where they worked of at least US$144 000 for the purchase of four tipper trucks, they together with Yang are accused of a range of charges under the Anti-Corruption Act.
It is alleged Lameck, Yang and Mokaxwa duped government through the Ministry of Finance to pay an inflated price of US$55 348 800 for scanners for airports and border posts.
In fact, the state alleges, the price was inflated with an amount of US$12 828 800 meant as ‘commission’ for Teko Trading which facilitated the transaction.
The other charges – Lameck faces 18, Mokaxwa 12 and Yang 6 – relate to transgressions of the Immigration Control Act, the Prevention of Organised Crime Act and further contraventions of the Anti-Corruption Act. Their case has now been postponed to January 25 next year for the next mentions roll.