Windhoek-An appeal by former managing director of Namibia Wildlife Resorts (NWR) Tobie Aupindi and his co-accused, Antonio di Savino, in a corruption trial involving the installation of a swimmingpool at Aupindi’s residence by LLC Pools, has failed in the Supreme Court.
The appeal was to have Supreme Court order the magistrate presiding over their trial recuse herself from the matter. They lodged the appeal to review and set aside a decision by the Windhoek High Court refusing to review and set aside the decision by Magistrate Helvi Shilemba not to recuse herself from their corruption trial for perceived bias.
Aupindi and Di Savino, who had dealings with the NWR while Aupindi was still in charge, are on trial for allegedly lying to Anti-Corruption Commission investigator William Lloyd in March and April of 2010, by telling him that Aupindi paid N$50,000 for the pool, while it was in fact Di Savino who paid for the pool.
They both pleaded not guilty at the start of their trial and gave no plea explanations. At the end of the State’s case both applied for discharge in terms of Section 174 of the Criminal Procedure Act, which was refused by Shilemba.
When the trial continued, the defense called a former police officer, McKay, who was hired to do certain investigations on behalf of Aupindi. He produced statements which, inter alia, indicated that Aupindi did indeed pay for the swimming pool in two instalments of N$25,000 and of a witness, who claimed to have overheard the magistrate and prosecutor stating they would ensure Aupindi was convicted and spent time in prison.
However, the judge said, it turned out that McKay could give no evidence relevant to the merits of the case against the two accused. However, subsequent to McKay’s testimony the lawyers for both accused instigated recusal proceedings against Shilemba, which she dismissed.
They then approached the High Court with an application to order Shilemba off the case on the basis of perceived and actual bias. The High Court refused the application and Aupindi then filed an appeal in the Supreme Court, which also refused the application.
According to Acting Judge of Appeal Theo Frank, who wrote the judgement in concurrence with Appeal Justices Sylvester Mainga and Elton Hoff, the High Court was correct to find that there was nothing before court to show that any grave injustice or failure of justice’ was likely to ensue if the criminal trial proceed.
According to Aupindi and Di Savino, the proceedings in the magistrate court were marred by a number of irregularities, some of which are of material importance and debase the proceedings, which gives them the right to be acquitted, or that a permanent stay of prosecution be granted, or that Shilema’s decision not to recuse herself be reviewed and set aside.
According to Justice Frank, while the manner in which the magistrate handled the recusal application is not beyond criticism, he is of the view that her conduct did not create an apprehension of bias as it is clear she wanted confirmation of the allegations, as she was entitled to.
He said the applicants had failed to establish the facts necessary to confirm bias or a reasonable apprehension of bias.