Windhoek – The five people convicted in the marathon Avid/Social Security Commission (SSC) fraud and theft case, which include former deputy minister Paulus Kapia, will on Wednesday hear the exact date when their sentences will be handed down.
Nearly four years since the start of their trial concerning a botched N$30-million investment deal by the Social Security Commission, High Court Judge Christi Liebenberg delivered his judgement in a packed-to-the-rafters courtroom on Friday.
The judge’s pronouncement evoked different emotions, especially for Nico Josea, one of the kingpins in the case, who had to be ushered away by police after his bail was cancelled as he was deemed a flight risk.
And for retired army brigadier Mathias Shiweda and Otniel Podewitz, it was the exact opposite emotional spark as they were acquitted on all charges they faced – and walked away as free as birds.
Kapia, a former firebrand youth activist who worked as secretary of the Swapo Party Youth League (SPYL) and worked his way up to become the first deputy minister of works in the government of then President Hifikepunye Pohamba, was convicted on a charge of fraud together with Inez /Gâses and Ralph Blaauw, but discharged on the second count of conducting business in a reckless or fraudulent manner.
According to Judge Liebenberg, a conviction on that count would constitute a duplication of convictions as he relied on the same evidence to sustain a conviction of fraud.
Lawyer Sharon Blaauw was only convicted on the charge of conducting business in a reckless or fraudulent manner, as according to Judge Liebenberg, she was directly involved in the “carrying on of the business”.
The judge said that on her own admission and through evidence presented, Sharon thoughtlessly signed two resolutions which had far-reaching consequences for the company.
While she denied having been involved in any meeting or discussion prior to signing the resolutions, she was proven to have been part of the decision-making processes at Avid Investment, a little-known investment entity created by Lazarus Kandara, who commited suicide after the scam came to the fore.
Sharon clearly failed in her duty as director and by doing so made herself guilty of reckless conduct in contravention of section 434 (3) of the Companies Act and, accordingly, stood to be convicted, the judge ruled.
With regard to Podewitz, the judge found there was no evidence that he was knowingly a party to the carrying on of Avid’s business in a reckless manner, or for any defrauding purpose, and was thus entitled to be discharged.
In relation to Shiweda’s involvement in Avid, the judge said this only manifested when he accompanied /Gâses as shareholder to the presentation made to the SSC managers on January 19, 2005. Subsequent thereto, he attended two meetings from which the shareholder’s list and board resolution emanated and the last meeting was a mere briefing on the investment itself.
According to Judge Liebenberg, it had already been established there was no evidence that Shiweda made any misrepresentations, neither had any evidence been presented as to his participation in the shareholder’s list or resolution and as such nothing shows that he acted with the intent to defraud any creditors, or for any fraudulent purposes. It was neither established that Shiweda was knowingly a party thereto where others were involved in the carrying on of the business of Avid.
The judge further said that in assessment of the evidence relating to the misrepresentations made to the SSC managers, the court should not look at each misrepresentation in isolation, but should follow a holistic approach in determining whether any misrepresentations were made.
Neither should the actions or omissions on the part of an accused person be viewed in isolation as the evidence has duly established that those accused involved in the attainment of the investment had acted in unison, the judge said.
He added that despite Kandara’s fingerprints being all over Avid, the accused did nothing to verify the truthfulness of material information presented to the SSC.
“There is no evidence that any of the accused ever questioned Kandara on the operations of Avid or doubted his sincerity to act in the best interest of the company. Notwithstanding, they pursued the SSC deal under these circumstances, giving out that the investment deal was of their own making, whilst in truth and in fact their presentations were baseless, misplaced and lacked substance,” the judge said.
He went on to say that what they essentially did was to allow Kandara to use Avid, an investment company, to acquire the SSC investment. “It was never about Avid – it was all about Kandara,” the judge stressed.
According to the judge, Kapia, /Gâses and Ralph played an important part in laying the groundwork for the misappropriation of the SSC money and made it possible for Kandara to swindle the SSC out of its money and as such stand to be convicted on the count of fraud.