Windhoek – High Court Judge Christi Liebenberg on Friday did not mince his words when he found Nico Josea guilty of the theft of N$14.9 million from the Social Security Commission, money that was supposed to have been invested by him through his company Namangol Investments. That money was part of so-called returns on an investment of N$30 million the SSC made through Avid Investment, a little known investment company run by Lazarus Kandara, who killed himself in front of the Windhoek police charge office hours after his arrest on embezzlement charges. Kandara deposited N$29.5 million into the trust account of Namangol of which Josea was the sole shareholder and he, in turn, paid N$20 million over to Alan Rosenberg in Johannesburg to invest, but it was recalled after only four days. Josea thereafter instituted court proceedings in South Africa, which resulted in a settlement agreement that was made an order of court by that country’s High Court and N$14.9 million was paid into his personal account.
This, the judge said, was nothing more than a ruse to divert the money away from Namangol and have the money transferred to Josea’s private account under the guise of a loan supposedly advanced by Kandara. According to Judge Liebenberg, there cannot be any doubt that Kandara from the onset intended to appropriate funds emanating from the SSC investment and in his endeavours, together with Josea and Rosenberg, concocted a scheme to swindle the SSC out of its money for their personal benefit. “This much is evident from a letter dated February 07, 2005 sent by Alan Rosenberg to Avid, purporting to be a guarantee bond assigned to Avid in the amount of N$30 million with a return value of N$31,476,494. This despite having only received N$20 million (and not the amount stated),” Judge Liebenberg stated. The judge further said that on paper the N$20 million investment was made by Namangol Investments, according to which the money had to be returned to Namangol as lawful owner/possessor when recalled, and no one else. “At this stage Kandara had no say over the money and neither could it legally have been paid into [Josea’s] private account,” according to the judge. He further said that it is evident from the evidence that Josea had all along been in cahoots with Kandara and Rosenberg and that there was no intention to return the money either to Namangol or Avid. He further said they assumed ownership of the money with the sole intention of depriving Avid or the SSC of their lawful possession and ownership of the funds. “Accused 7 was clearly not the innocent party he portrayed in court,” the judge stressed and continued: “Instead, there is overwhelming evidence showing that during his dealings with Kandara and Alan Rosenberg, he knew that the SSC’s money had been stolen.” According to Judge Liebenberg, while it was submitted on behalf of Josea that there should be “contemporaneity” with regard to the act of appropriation and intention to permanently deprive the owner or lawful possessor of his property, this was duly established when Josea actively joined forces with Kandara in appropriation of the Avid investment by using Namangol as conduit to get control of the money. “He was a co-perpetrator right from the beginning,” the judge said. He added that Josea was instrumental in the appropriation of the funds. The first, the judge said, was when the money was transferred to Namangol by Kandara – contrary to the SSC instructions – from where it was deployed and controlled by Josea. At the outset the amount of N$3.2 million had been set aside for Kandara’s personal use and the recalling of the N$20 million a few days after it was made with no prospect of it being invested somewhere else, or returned to the investor, confirms the existence of a mutual agreement between Josea and Kandara to misappropriate the funds, Judge Liebenberg stated. In the end, he said, he is satisfied that Josea committed the offence of theft by conversion. He was also convicted of conducting business in a reckless and fraudulent manner. His bail of N$30,000 was cancelled and he will remain in custody. The matter will return to court on May 16 for fixing of a date for pre-sentencing procedures.