Thirteen years of drama and uncertainty with regards to the fate of those implicated in the plunder of Social Security Commission’s (SSC) millions were finally put to rest yesterday when Judge Christie Liebenberg laid down his judgement.
Avid king pin and direct beneficiary of the squandered N$30 million, Nico Josea, got slapped with a sentence of 17 years' imprisonment for theft by conversion and two years on the contravention of the Companies Act.
Both sentences will be served concurrently.
Former deputy minister of works, Paulus Kapia, former Swapo Youth Leader Ralph Blaauw, accountant Inez /Gâses each got fined N$60 000 or 3 years in prison while Ralph’s wife, Sharon Blaauw got fined N$8 000 or 6 months in jail.
The matter has put to rest public anticipation over the accused while it is not immediately clear whether the defence council for Josea will seek leave for appeal to the Supreme Court.
Equally important is that the court shot down SSC’s last-hour attempt to postpone sentencing and have the court deal instead with a second application for the recovery of the lost funds after the first one failed.
The defence council came out overwhelmingly against prosecutor Ed Marondedze and bashed his request as not having been timeous and his application was deemed improper before the courts given that: he did not apply for leave or put a notice of motion and that the defence council was not prepared.
Leading the attack to have the application watered down and sentencing proceed was prolific lawyer, Sisa Namandje of Sisa Namandje & Co with the rest of the defence council throwing their weight behind him.
Judge Christie Liebenberg pointed out that this did not however mean that SSC may not proceed with the attempt to be compensated although this could be done at a later stage.
With the first obstacles to the “great judgement day” thus set aside, Judge Liebenberg began by laying down the grounds upon which his judgement was based as well as give background to the each of the accused in light of their predicament.
In final analyses, the court found that there was no evidence that Kapia, Gases and Ralph when making misrepresentations to the financial managers of SSC knew that the money transferred to Avid would be misappropriated.
“Their actions went no farther than to make substantial misrepresentations to the SSC during the bidding stage of an investment tender by knowingly submitting misleading information and documentation essential to the awarding of the tender,” said Judge Liebenberg.
They have been hit hard for abdicating their fiduciary duties and responsibilities by allowing and implementing the decisions of Lazarus Kandara who was not a part of Avid.
Above this, it has been put on record that SSC managers never wanted to deal with Kandara whose presence in the bid to win the tender was always hidden away from them.
Their underhand dealing with SSC was thus to coerce it into awarding the tender
The court found that although the accused persons save for Josea did not directly gain anything from the embezzled funds their actions and intentions jointly satisfies the elements of the offense of fraud.
Although they failed in their duties to protect the SSC N$30 million when they finally scooped the tender, the court found that it would be wrong to punish them as if they were in cahoots with the actual perpetrators.
Said the Judge, “The most aggravating factor against those accused being directors, is that they failed in their duty and should have been more vigilant when dealing with public funds.”
Josea was found to have worked in cahoots with the main perpetrator, Kandara, with nothing but an intention to embezzle the investment funds.
For her part, Ralph’s wife, though her indifference towards her duty and responsibility as a director could not be condoned but be discouraged in the strongest of terms, it did not call for imprisonment as the only suitable form of punishment.
Josea was found offside in devising a scheme together with a South African Allan Rosenberg in order to create the impression that an alleged investment made with the latter was ongoing while it was not.
N$14.9 million of the N$20 million transferred to Rosenberg lined up his pockets and through his company, Namangol, falsely created a paper trail to give credence to his version of personal loans having been made between him and the late Kandara.
This was meant to create an impression that the N$14.9 million paid into his personal account was clean money.
This, the court found, amounted to theft by conversion which resulted to the substantial loss of the N$30 million.
At one point, Josea expressed remorse by breaking down in tears, but the Judge found that, “ It seems that he is rather sorry for having been caught out.”