RCC boss in limbo as court reserves judgement
The former chief executive officer for the Roads Contractor Company accused in the N$4,494 million B1 corruption saga is in limbo, at least for now, as the court is yet to rule whether he should be tried as a public office holder or not.
Kelly Nghixulifwa (58) through his legal council, has brought an objection before Judge Christie Liebenberg, disputing that the RCC was not a public body and therefore he could not be prosecuted as a public office holder.
This debate has stalled further proceedings into the charges.
The defence counsel put it to the judge that contrary to the public perception, the RCC was not financed by the state, was not controlled by the minister and was just a company like in any other.
This argument was thrust by lawyer Silas Shakumu who submitted that the RCC does not fall under any criteria put by the Anti-Corruption Commission and does not exercise any public power.
He said that the Act which established the entity was silent on the power of the minister, while he did not appoint its board of directors.
Although the state prosecutor vehemently disagreed, Shakumu countered saying if the minister had been exercising such power then he was on the wrong, since the Act did not allow him to.
Judge Liebenberg wanted to know what was left for RCC.
According to defence lawyer, senior counsel Soni, RCC was just a State Owned Enterprise with a measure of independence that required it to go about its business and making profits.
The Judge further pressed asking where were those profits supposed to go to.
Shakumu responded by saying that the entity received assets from the government which it had to pay back.
Soni weighed in on the debate stating that the prosecutor was wrong to define RCC as a state organ simply because the minister was the only shareholder.
“The Act says that a shareholding minister is different from a minister,” he argued.
The prosecutor has in the meantime said they need more evidence to build up the allegation that indeed RCC was a state organ.
“RCC is indeed a public body. How was RCC formed? But this needs evidence. It was enacted on the initiation of government which saw the need for road construction and needed an agency to do that,” said the prosecutor.
He pressed that the minister indeed had power over the entity’s financial performance, scope and dividends.
“Annual reports are required in terms of the RCC Act which will be submitted to the shareholding minister.
"If the RCC is not under government through the ministry, why would it be required to submit reports? It can only mean that it is a government agent,” he said.
Meanwhile, the judge has reserved his ruling on this case and postponed it to the 17th of October 2018.
If the RCC is to be ruled as to be not falling within the category of a state organ, its former boss will thus not be prosecuted as a public office holder.