By: Kelvin Chiringa
Former personal assistant to the late liberation struggle hero, Herman Andimba Toivo Ya Toivo who was accused of stealing N$70 000 from him, left the Windhoek magistrates’ court a free man for the second time this week after irregularities were found on the part of the investigating officer.
The accused, Elia Shoopala Kapofi was scheduled to appear for plea and commencement of trial, yet it came out the subpoenas that were issued were not served without any reason.
This is also called a witness summons which is issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure.
This can: order a person to testify or to bring physical evidence before the ordering authority.
It further came out that the state lawyer was only given the docket this week Tuesday and thus was not ready to proceed with the case.
He thus asked for a final remand for plea and trial.
What has irked the court is that the subpoenas were issued as far back as August last year, yet nothing was done by the investigating officer handling the case.
The lawyer for the state said this week when he inquired for the docket in order to prepare for trial, the officer said he was on compassion leave.
No explanation could be given as to why nothing was done and attempts to get clarity were fruitless as his phone went off, the lawyer said.
Kapofi’s lawyer, Kadhila Amoomo rejected the application for remand saying a lot of time and financial resources had been wasted by his client to attend this week’s proceedings.
He bashed the officer for dereliction of duty stating that the state had demonstrated that it was not serious about the matter.
“This matter was postponed for almost nine months. We don’t have any explanation why subpoenas issued last year were not served last year or the beginning of this year. There is no explanation why the officer does not honestly disclose to his colleague whether or not he served the subpoenas. He arm-bushed him by giving him a docket without mentioning whether or not he served the subpoenas,” said Amoomo.
He said under normal circumstances, investigating officers are under a commander’s supervision and there was no reason why he was not roped in.
“We do not know when his compassion leave will end or how does this leave affect serving subpoenas. This is not the first time that the court is showing displeasure on how the investigating officer is behaving,” he said.
What also came out was that the very same matter was at one time provisionally withdrawn because the state’s house was not in order.
“It’s not fair,” Amoomo weighed in.
In his ruling, the magistrate suggested that the state had failed to properly motivate its application for remand and thus the matter got struck from the roll with Kapofi being excused.
The case against Kapofi
The prosecution’ allegations were that Kapofi wrongfully and intentionally withdrew about N$71 000 from the late Ya Toivo’s account on February 2, 2017.
On top of this, it was being alleged that having been Ya Toivo’s aide for a very long time, he was trusted with the deceased banking details that on occasions he would withdraw money for the late Ya Toivo’s household expenses.
It was being said that Kapofi withdrew the money illegally months before Ya Toivo’s passing in June 2017.
