This was one of the rhetorical questions raised in the High Court in Windhoek yesterday, on the second day of arguments that should determine the fate of the court order through which millions of dollars worth of assets allegedly tainted by corruption with the provision of Chinese-made X-ray scanning equipment to the Ministry of Finance have been frozen for the past two months.
After hearing two days of arguments on the preliminary assets restraint order under the Prevention of Organised Crime Act that was given by Judge President Petrus Damaseb on July 6, the Judge
President and Judge Collins Parker yesterday reserved their judgement on the issue.
In the meantime, the interim restraint order has been extended until Friday, when it is expected to be extended further to a date when the courts judgement might be ready. The restraint order targets assets like fixed properties, cars and bank accounts belonging and connected to Public Service Commissioner Teckla Lameck (48), her business partner, Kongo Mokaxwa (30), and Chinese national Yang Fan (39).
Lameck, Mokaxwa and Yang have been charged with fraud, corruption and bribery in connection with a US$55,348 million contract for the provision of Chinese-made X-ray scanning equipment to the Ministry of Finance.
That contract has so far already earned them a commission of over N$42 million.
Through a collection of agreements between the supplier of the Chinese X-ray equipment, Nuctech Company, and a Namibian close corporation in which Lameck and Mokaxwa are the only two members, Teko Trading CC, the close corporation was supposedly appointed as Nuctechs local agent and consultant. That role would earn Teko Trading US$12,828 million (about N$97,2 million at the current exchange rate) from Nuctechs X-ray equipment supply contract with the Finance Ministry.
The allegation of corruption against Lameck, and through their association with her also against Mokaxwa and Yang, is rooted in a claim that she contravened the Public Service Commission Act by not having the Presidents consent for doing paid work outside her official position. That alleged contravention in turn would mean that Lameck is guilty of corruption as defined by the Anti-Corruption Act, the Prosecutor General is arguing.
Lameck has stated in affidavits filed with the High Court that she sent a letter to the President on December 11 last year to inform him of her business interests outside her official position, including her involvement in Teko Trading.
Because she never got a reply to inform her that the President did not consent to her involvement in these businesses, she in effect received the Presidents tacit consent, she claims.
The Prosecutor General replied by pointing out in an affidavit that Lameck sent her letter to the President almost seven months after Teko Trading and Nuctech had already concluded the agreement through which the X-ray scanning equipment contract was going to generate US$12,828 million for Teko Trading.
Its one thing to declare ones interest in a close corporation; its an entirely different thing to ask for the Presidents consent, senior counsel Jeremy Muller, representing the Prosecutor General, argued in court yesterday.
In her letter to the President, Lameck also did not make any mention of Teko Tradings deal with Nuctech and its involvement in a contract to supply goods to the Finance Ministry, or that this involvement was set to earn her close corporation the then equivalent of some N$120 million.
That means that the President could not have given any informed consent, and not even tacit consent, to Lamecks involvement in outside paid work, Muller argued.
In no way could it be said that the President gave his consent to Lameck creaming off N$120 million from a state contract, Muller argued. Nobody in the courtroom before the Judge President and Judge Parker yesterday would even try to say that the President gave his consent for something like that, Muller added.
Muller charged that it was clear that Teko Trading performed no service to warrant being paid the N$42 million it has received from Nuctech so far. The purpose of the contracts concluded between Nuctech and Teko Trading was only to provide a vehicle to facilitate the transfer of the about US$12 million the same amount as the first payment that the Finance Ministry made to Nuctech in late February this year to Teko, Muller argued.
Senior counsel Jeremy Gauntlett, representing Lameck, Mokaxwa and Yang, charged on Monday that the provisional assets freezing order has to be set aside because of claimed irregularities in the case. He argued that the restraint order was not served on his clients as promptly as possible, as was required by the court, that they were denied their rights to legal representation when they were first questioned by the anti-Corruption Commissions chief of investigations, Nelius Becker, and that the Prosecutor General was guilty of a material non-disclosure of Lamecks letter to the President when she asked the court to issue the assets restraint order on July 6.
Muller said the complaint about a delay in serving the restraint order on Lameck, Mokaxwa and Yang reminded him of an Afrikaans saying that, translated into English, would go: Anxious cats make anxious leaps.
There was no indication that the Prosecutor General was aware of Lamecks letter to the President when she first approached the court, so that complaint also does not hold water, Muller argued. On the issue of the right to legal representation having allegedly been infringed, there is no indication from any of the three defendants that they suffered any prejudice because of this, he added. Muller asked the court to confirm the provisional order.
Gauntlett was assisted by Raymond Heathcote, on instructions from Sisa Namandje. Muller was assisted by Deputy Prosecutors General Orben Sibeya and Danie Small.
* It was reported yesterday that Yang had been released on bail of N$250 000. Although bail of N$250 000 was granted to Yang on August 11, he has not yet paid that amount and remains in custody.
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