Aupindi’s trial ruled unfair in appeal judgement

FORMER Namibia Wildlife Resorts managing director Tobie Aupindi and a co-accused did not receive a fair trial before they were found guilty on a charge under the Anti-Corruption Act three years ago, two High Court judges have concluded.

Anti-Corruption Commission (ACC) investigators obtained information from Aupindi and his co-accused, businessman Antonio Di Savino, under false pretences when they were interviewed about the origin of the payment for a swimming pool installed at Aupindi’s house, judge Christie Liebenberg said in an appeal judgement delivered in the Windhoek High Court yesterday.

Although Aupindi and Di Savino were considered to be suspects in the ACC investigation, they were treated as “no more than witnesses” from whom information was obtained under false pretences, with that information ultimately used to draw up the charges on which they were later prosecuted, Liebenberg said.

When they were interviewed and informed – as required by the Anti-Corruption Act – only that they were not obliged to answer any question if the answer was self-incriminating, the rights of Aupindi and Di Savino as suspects were not sufficiently protected, the judge stated.

Aupindi and Di Savino were not informed of their constitutional rights as suspects – including the right to remain silent or that anything they said could be used as evidence against them – and that “undoubtedly tainted the fairness of the trial”, Liebenberg also noted.

He concluded that the statements which the ACC recorded from Aupindi and Di Savino and relied on to subsequently have them charged and prosecuted were irregularly obtained. Without those statements, the state would not have been able to charge the two men, Liebenberg added.

The pretrial irregularity in the case breached the constitutional rights of Aupindi and Di Savino and was so fundamental that in effect there was no trial at all, and their convictions had to be set aside, the judge stated.

Judge Herman January, who heard the two men’s appeal against their convictions with Liebenberg, agreed with the judgement.

Aupindi, who has been a Swapo member of the National Assembly since March 2020, and Di Savino were found guilty in the Windhoek Magistrate’s Court in October 2018 on a charge of providing false information to an agent of the ACC. With each of them sentenced to a fine of N$50 000 or 30 months’ imprisonment, both of them paid the fine.

The charge, under the Anti-Corruption Act, was based on an allegation that Aupindi and Di Savino had lied to an ACC investigator in March and April 2010 by telling him that Aupindi himself had paid N$50 000 for the installation of a swimming pool at his house in Windhoek in December 2006, while they knew Di Savino had actually paid for the pool.

During the trial, the court heard contradictory testimony about the origin of the payment for Aupindi’s swimming pool. A former owner of the pool installation company Lic Pool Centre, Michael Kuhn, who testified as a defence witness, told the court Aupindi himself paid for the swimming pool installed at his house.

However, Kuhn’s brother, Herman Kuhn, who was employed at Lic Pool Centre and was a state witness during the trial, testified that Di Savino had paid for the swimming pool at Aupindi’s house.

Commenting on that evidence, Liebenberg said it was inescapable to conclude that the prosecution’s evidence fell significantly short of proving beyond reasonable doubt that Di Savino had paid for Aupindi’s pool.

Defence lawyer Richard Metcalfe, who represented Aupindi during his trial and in the appeal, commented after the delivery of the appeal judgement: “It exonerates my client and it proves his innocence. […] It ends the travesty of justice which was perpetrated by the Anti-Corruption Commission.”

He added that the ACC “should be taken to task” over the court’s finding that ACC investigators obtained information from Aupindi and Di Savino under false pretences. “This is fraud,” Metcalfe said.

Di Savino was represented by lawyer Damian Esau in the appeal.

Hesekiel Iipinge represented the state.

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