Charge Avid inquiry liars, court advises

THE Prosecutor General should consider pressing perjury charges against some of the people who testified at the High Court inquiry into the Social Security Commission’s investment of N$30 million with Avid Investment Corporation, the former Acting Judge Raymond Heathcote has recommended.

Three months after the end of the inquiry, which turned out to be Namibia’s most keenly followed legal proceedings in many years, Acting Judge Heathcote this week signed off on the legal process he initiated, by filing his report on the inquiry with the High Court. He concluded his report with one recommendation only – but it is a wide-ranging one, which may yet turn out to have serious consequences for some of the people who gave evidence during the inquiry.The former Acting Judge concluded that some of the witnesses in the inquiry had told him lies.He requested that copies of the record of the inquiry proceedings should be sent to the Prosecutor General so that she can decide whether to charge anyone for perjury or anything else in connection with testimony that was given before him.Former directors of Avid topped the list of the people who testified in the inquiry.They included former Deputy Minister of Works and National Assembly member Paulus Kapia, the former Acting Secretary General of the National Youth Council, Ralph Blaauw, lawyer Otniel Podewiltz, who is employed at the Ministry of Labour, the former chairperson of Avid’s board of directors, Inez /Gâses, and the late Lazarus Kandara, who was the Chief Executive Officer of Avid.The object of the inquiry had been to establish the truth of what had happened to N$30 million that the SSC intended to invest through Avid Investment Corporation for four months from late January onwards, the Acting Judge points out in his 18-page report.However, because some of the witnesses who were summoned to testify did not tell the full truth, or lied outright when they gave evidence, the inquiry was sidetracked from its goal of finding out where the money went, Acting Judge Heathcote comments in the report.SEEKING THE TRUTH The Prosecutor General should now be given a chance to study the record of the proceedings in the inquiry in order to decide whether anybody should be charged with perjury for having lied under oath, he indicates.If she decides to prosecute anyone, and if a court finds anyone guilty of having given false evidence at the inquiry, “such conduct should be met with the full force of the law”, he remarks.”Perjury should never be defined as a ‘petty crime’, for if that is done, it is impliedly accepted that the Namibian future will be determined by something other than the truth,” he states.Acting Judge Heathcote decided that the High Court should hold an inquiry into the affairs of Avid, and specifically on the issue of the SSC’s investment of the N$30 million through it, when the SSC asked him on July 12 to issue an order provisionally liquidating Avid for its failure to repay the SSC’s investment.The inquiry was held in terms of section 417 of the Companies Act, which gives the High Court the power to summon anyone with knowledge of a bankrupt company’s affairs to give evidence on that.The same section also states that someone testifying at such an inquiry may be required to answer questions that may incriminate himself.”It is accepted in most parts of the modern world that people can be compelled to incriminate themselves during insolvency inquiries, provided that that testimony cannot be used against them in subsequent criminal proceedings.However, that does not provide immunity to perjurers.If perjury is committed by any person during the inquiry itself, that testimony can be used against him/her if they are charged with perjury in a subsequent criminal trial,” Acting Judge Heathcote states.”A Section 417 inquiry is a valuable tool to establish the truth and to assist liquidators to find the paper trial of missing money.While self-incriminating evidence will in all probability be excluded in subsequent criminal trials, witnesses cannot be allowed to tell the truth only once they are confronted with documentary evidence, which documentary evidence tend to close all escape routes for inventive testimony.It is of utmost importance that the integrity of section 417 proceedings be protected, and if perjury is committed during such section 417 proceedings, that those guilty of it be brought to book.”GREED After the SSC had transferred the N$30 million to Avid’s bank account on January 26, the money was transferred to a bank account of another asset management company, Namangol Investments, and from there, began to be distributed in various directions, including back into the hands of Kandara himself, the inquiry heard.As the end of May approached, the money was due to be repaid to the SSC – but Avid was not in a position to do that.Acting Judge Heathcote relates the situation: “By this date, the money was not safely secured in an investment fund, waiting to be returned to its rightful owner.Rather, it was distributed by people, ill-equipped to do the work of investors, and it appears, hypnotised by far-fetched stories of huge returns invented by international con artists.”It was apparent that the N$30 million lost its “social nature” from the moment it left the coffers of the SSC, he states.”It became a free for all, to be transferred from one bank account to the other, all without proper written contracts being in place.Eventually, so the evidence revealed, it was strewn all over Africa, and according to some versions, the world.Soon huge parts were drawn in cash, and converted into US dollars.There the spoor got lost.Only the truth can assist liquidators in such circumstances.But the truth was not always told.”He also comments: “That greed was at the order of the day, is evident.Who should be charged, is for the Prosecutor General to determine.But those employees who faithfully made their monthly contributions to the Commission, and indeed the Namibian public at large, deserve and I suspect demand, the fullest and most extensive investigation into such activities.All leads should be followed up to their logical conclusions.N$30 million in public funds disappeared.Everyone cannot be blameless.”That anyone involved in Avid did not know that Kandara – who had had a previous, allegedly dubious, record of involvement with SSC investments – was the company’s Chief Executive Officer, was difficult to comprehend, Acting Judge Heathcote remarks.That, however, was just what Kapia claimed when he testified.He told the court that he only became aware on July 10 – after the SSC had started legal proceedings to have Avid liquidated – that Kandara was involved with Avid, the Acting Judge points out.CONTRADICTIONS /Gases, however, told the court that Kapia had known before that about Kandara’s role in the company, and she also mentioned an Avid business meeting in March that she said both Kapia and Kandara attended, he also points out.There is a major contradiction between the evidence of /Gâses and Kapia on the issue of Kapia’s knowledge of Kandara’s involvement with the company, he states.”Both of them could not have told the truth.I am not making any finding as to whose version is probably false, but I suspect that the Prosecutor General shall not have much difficulty to identify the culprit,” he remarks.On another issue, the court was also confronted with contradictions.It heard from Kandara’s wife, Christophine Kandara, that she had handed over cash amounts of N$40 000 each to Podewiltz, Blaauw and another former Avid director, Mathias Shiweda, with Blaauw also supposed to have passed on another N$40 000 to Kapia.Lazarus Kandara backed up that claim from his wife when he gave evidence in the inquiry.Yet the alleged recipients all denied receiving money from Mrs Kandara.Says Acting Judge Heathcote: “If the evidence of Mrs Kandara is to be accepted (in respect of which I make no finding) then those people who denied having received the money may have committed perjury.”This is also one of the issues that the PG should investigate further, he indicates.
SIDETRACKED The inquiry was sidetracked over the involvement of Kandara in Avid, he states: “Mr Kapia denied that he knew that Mr Kandara was involved, while Mr Podewiltz downplayed his role considerably.Why was it necessary to do so? At least one inference is that they were trying to hide something.”That sidetracking may have prevented the court from getting to the heart of the truth of the matter, he indicates.”If a trial court finds beyond reasonable doubt that perjury was committed as to Mr Kandara’s involvement in Avid, one would be able to say; had the truth been told, the inquiry could have focused on the real issues and the large part of the N$30 million might have been recovered.But that is not what happened.If a criminal court finds anyone guilty of perjury as to the involvement of Mr Kandara in Avid, the conclusion will be that lies were told which derailed the whole inquiry.Then one would be able to say beyond a reasonable doubt that what should have focused on recovering of the N$30 million, became an inquiry where all involved had to listen with growing frustration to deliberate false evidence.I say again, such conduct should be met with the full force of the law.”He concluded his report with one recommendation only – but it is a wide-ranging one, which may yet turn out to have serious consequences for some of the people who gave evidence during the inquiry.The former Acting Judge concluded that some of the witnesses in the inquiry had told him lies.He requested that copies of the record of the inquiry proceedings should be sent to the Prosecutor General so that she can decide whether to charge anyone for perjury or anything else in connection with testimony that was given before him.Former directors of Avid topped the list of the people who testified in the inquiry.They included former Deputy Minister of Works and National Assembly member Paulus Kapia, the former Acting Secretary General of the National Youth Council, Ralph Blaauw, lawyer Otniel Podewiltz, who is employed at the Ministry of Labour, the former chairperson of Avid’s board of directors, Inez /Gâses, and the late Lazarus Kandara, who was the Chief Executive Officer of Avid. The object of the inquiry had been to establish the truth of what had happened to N$30 million that the SSC intended to invest through Avid Investment Corporation for four months from late January onwards, the Acting Judge points out in his 18-page report.However, because some of the witnesses who were summoned to testify did not tell the full truth, or lied outright when they gave evidence, the inquiry was sidetracked from its goal of finding out where the money went, Acting Judge Heathcote comments in the report.SEEKING THE TRUTH The Prosecutor General should now be given a chance to study the record of the proceedings in the inquiry in order to decide whether anybody should be charged with perjury for having lied under oath, he indicates.If she decides to prosecute anyone, and if a court finds anyone guilty of having given false evidence at the inquiry, “such conduct should be met with the full force of the law”, he remarks.”Perjury should never be defined as a ‘petty crime’, for if that is done, it is impliedly accepted that the Namibian future will be determined by something other than the truth,” he states.Acting Judge Heathcote decided that the High Court should hold an inquiry into the affairs of Avid, and specifically on the issue of the SSC’s investment of the N$30 million through it, when the SSC asked him on July 12 to issue an order provisionally liquidating Avid for its failure to repay the SSC’s investment.The inquiry was held in terms of section 417 of the Companies Act, which gives the High Court the power to summon anyone with knowledge of a bankrupt company’s affairs to give evidence on that.The same section also states that someone testifying at such an inquiry may be required to answer questions that may incriminate himself.”It is accepted in most parts of the modern world that people can be compelled to incriminate themselves during insolvency inquiries, provided that that testimony cannot be used against them in subsequent criminal proceedings.However, that does not provide immunity to perjurers.If perjury is committed by any person during the inquiry itself, that testimony can be used against him/her if they are charged with perjury in a subsequent criminal trial,” Acting Judge Heathcote states.”A Section 417 inquiry is a valuable tool to establish the truth and to assist liquidators to find the paper trial of missing money.While self-incriminating evidence will in all probability be excluded in subsequent criminal trials, witnesses cannot be allowed to tell the truth only once they are confronted with documentary evidence, which documentary evidence tend to close all escape routes for inventive testimony.It is of utmost importance that the integrity of section 417 proceedings be protected, and if perjury is committed during such section 417 proceedings, that those guilty of it be brought to book.”GREED After the SSC had transferred the N$30 million to Avid’s bank account on January 26, the money was transferred to a bank account of another asset management company, Namangol Investments, and from there, began to be distributed in various directions, including back into the hands of Kandara himself, the inquiry heard.As the end of May approached, the money was due to be repaid to the SSC – but Avid was not in a position to do that.Acting Judge Heathcote relates the situation: “By this date, the money was not safely secured in an investment fund, waiting to be returned to its rightful owner.Rather, it was distributed by people, ill-equipped to do the work of investors, and it appears, hypnotised by far-fetched stories of huge returns invented by international con artists.”It was apparent that the N$30 million lost its “social nature” from the moment it left the coffers of the SSC, he states.”It became a free for all, to be transferred from one bank account to the other, all without proper written contracts being in place.Eventually, so the evidence revealed, it was strewn all over Africa, and according to some versions, the world.Soon huge parts were drawn in cash, and converted into US dollars.There the spoor got lost.Only the truth can assist liquidators in such circumstances.But the truth was not always told.”He also comments: “That greed was at the order of the day, is evident.Who should be charged, is for the Prosecutor General to determine.But those employees who faithfully made their monthly contributions to the Commission, and indeed the Namibian public at large, deserve and I suspect demand, the fullest and most extensive investigation into such activities.All leads should be followed up to their logical conclusions.N$30 million in public funds disappeared.Everyone cannot be blameless.”That anyone involved in Avid did not know that Kandara – who had had a previous, allegedly dubious, record of involvement with SSC investments – was the company’s Chief Executive Officer, was difficult to comprehend, Acting Judge Heathcote remarks.That, however, was just what Kapia claimed when he testified.He told the court that he only became aware on July 10 – after the SSC had started legal proceedings to have Avid liquidated – that Kandara was involved with Avid, the Acting Judge points out.CONTRADICTIONS /Gases, however, told the court that Kapia had known before that about Kandara’s role in the company, and she also mentioned an Avid business meeting in March that she said both Kapia and Kandara attended, he also points out.There is a major contradiction between the evidence of /Gâses and Kapia on the issue of Kapia’s knowledge of Kandara’s involvement with the company, he states.”Both of them could not have told the truth.I am not making any finding as to whose version is probably false, but I suspect that the Prosecutor General shall not have much difficulty to identify the culprit,” he remarks.On another issue, the court was also confronted with contradictions.It heard from Kandara’s wife, Christophine Kandara, that she had handed over cash amounts of N$4
0 000 each to Podewiltz, Blaauw and another former Avid director, Mathias Shiweda, with Blaauw also supposed to have passed on another N$40 000 to Kapia.Lazarus Kandara backed up that claim from his wife when he gave evidence in the inquiry.Yet the alleged recipients all denied receiving money from Mrs Kandara.Says Acting Judge Heathcote: “If the evidence of Mrs Kandara is to be accepted (in respect of which I make no finding) then those people who denied having received the money may have committed perjury.”This is also one of the issues that the PG should investigate further, he indicates.SIDETRACKED The inquiry was sidetracked over the involvement of Kandara in Avid, he states: “Mr Kapia denied that he knew that Mr Kandara was involved, while Mr Podewiltz downplayed his role considerably.Why was it necessary to do so? At least one inference is that they were trying to hide something.”That sidetracking may have prevented the court from getting to the heart of the truth of the matter, he indicates.”If a trial court finds beyond reasonable doubt that perjury was committed as to Mr Kandara’s involvement in Avid, one would be able to say; had the truth been told, the inquiry could have focused on the real issues and the large part of the N$30 million might have been recovered.But that is not what happened.If a criminal court finds anyone guilty of perjury as to the involvement of Mr Kandara in Avid, the conclusion will be that lies were told which derailed the whole inquiry.Then one would be able to say beyond a reasonable doubt that what should have focused on recovering of the N$30 million, became an inquiry where all involved had to listen with growing frustration to deliberate false evidence.I say again, such conduct should be met with the full force of the law.”