WINDHOEK – The six search warrants the Anti-Corruption Commission used to search the premises of Teko Trading and Nuctech Company Limited, Nuctech Hong Kong and the Ministry of Finance and confiscated computers and documents from them was obtained illegal, a Windhoek High Court Judge has ruled.
Judge Christi Liebenberg found the search warrants – six in all – were not issued within the confines of the law, as they did not specify the officers that were authorised to conduct the search and seizures. He however ruled the affidavit of Nelius Becker – which was used to obtain the warrants admissible. According to the judge, the wording on the warrants, addressed to all officers, render them null and void as the Act specifically required a search warrant to be addressed to a specified authorised officer.
The State wanted to have the six warrants issued by a magistrate in terms of Section 22(4) of the Anti-Corruption Act of 2003 admitted into evidence. The defence team led by Advocate Gerson Hinda SC, instructed by Sisa Namandje objected on the grounds that the declaration used in support of the application for the issuing of the search warrants did not satisfy the requirements of a sworn declaration on the basis that the person who commissioned the declaration was not a commissioner of oaths at the time as well as that the search warrants was addressed to all authorised officers, and not to a specified authorised officer.
Judge Liebenberg said the right to privacy is guaranteed under Article 13 of the Namibian Constitution and it deserves a very high level of protection and demands a strict interpretation of the search and seizure provisions in the ACC Act.
“Those provisions may, for obvious reasons, result in a serious encroachment on the rights of those persons subjected to them,” the judge said and continued: Hence the courts will construe search and seizure warrants strictly and furthermore carefully scrutinise anything in pursuance thereof. What this means, Judge Liebenberg explained is that the court is obliged to employ a strict interpretation of the provisions relating to search and seizure warrants.
The ruling comes in the wake of an objection by former Chair of the Public Service Commission, Teckla Lameck, her equal business partner in Teko Trading, Jerobeam Kongo Mokaxwa and Chinese national Yang Fan raised against the admissibility of search warrants used to obtain evidence against them in their ongoing mega fraud trial in the Windhoek High Court.
Lameck, Mokaxwa and Yang denied guilt on the charges they face at the start of their new trial after three judges of the Supreme Court upheld their suspicion of bias against the judge that presided over their original trial, Maphios Cheda and removed him from the trial and replaced him with Judge Liebenberg.
It is alleged the trio 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.
In fact, the State alleges, the price was inflated with an amount of US$12 828 800 meant as ‘commission’ for Teko Trading who facilitated the transaction.
Lameck and Mokaxwa alone faces charges that they, while Mokaxwa was employed there and Lameck was the board chairman of Swapo owned company, Namib Contract Haulage, duped the company into buying them four tipper trucks valued at US$144 000.
The other charges – Lameck faces 18, Mokaxwa 12 and Yang 6 – relates to transgressions of the Immigration Control Act, the Prevention of Organised Crime Act and further contraventions of the Anti-Corruption Act.
The two Namibians and the Chinese national were arrested on July 8 and 9, 2009 in Windhoek.
Lameck and Mokaxwa are currently free on bail of N$ 50 000.00 each and Yang on bail of N$1 million dollars.
The State is represented by Advocate Dominic Lisulo assisted by Advocate Constance Moyo.