Former Roads Contractor Company chief executive Kelly Nghixulifwa and two co-accused had mixed success yesterday with a bid to be found not guilty on most of the charges they are facing in a drawn-out fraud and corruption trial in the Windhoek High Court.
In a ruling delivered by judge Christie Liebenberg, Nghixulifwa was found not guilty on three of the 11 charges on which he is being prosecuted in the High Court.
The second accused in the case, Anna Ndoroma, was found not guilty on two of the three charges she has been facing, while the third accused, Hafeni Nghinamwaami, was discharged on two counts.
Following the delivery of the ruling, Nghixulifwa is still facing three counts of corruptly using an office or position for gratification, four charges of fraud and a count of dealing with gratification derived from corruption. He was discharged on two counts of failing to disclose that he had an interest in a contract that the Roads Contractor Company (RCC) entered into and also on one charge of corruptly using an office or position for gratification.
Ndoroma is still facing one charge of fraud, alternatively conspiring to commit corruption or theft, in connection with a payment of close to N$30 000 that the RCC made in 2006 to an auditing firm for work the firm had done for the company Cradle Investment, of which Nghinamwaami and Ndoroma were directors and Ndoroma was allegedly a nominee shareholder representing Nghixulifwa.
The same charge is also remaining against Nghixulifwa and Nghinamwaami.
The charges remaining against Nghinamwaami are two counts of fraud and a charge, under the Anti-Corruption Act, of using property obtained from gratification.
Nghixulifwa, Ndoroma and Nghinamwaami denied guilt on all charges when their trial started in November 2020.
The charges are connected to the involvement of the state-owned RCC in the B1 City property development project in Windhoek and the construction of the RCC head office between 2004 and 2006, and the alleged use of RCC funds to make a payment to an auditing firm for services rendered to Cradle Investment, and to make a payment on a housing loan account of an RCC employee.
The prosecution alleged that Nghixulifwa was a shareholder in the company /Ae//Gams Engineering, which was a joint venture partner of the RCC in the B1 City property development, and that Ndoroma held Nghixulifwa’s stake in that company as a nominee shareholder.
On charges connected to that allegation, Liebenberg found that there is no direct evidence before him that shows Nghixulifwa was a covert shareholder in /Ae//Gams Engineering, with the result that those charges were not proven.
The judge also found that the evidence shows the RCC financed the purchase of the land on which the B1 City property development was done, with close to N$4,5 million paid for that land in October 2005. The land was registered in the name of /Ae//Gams Engineering, which gained financially by becoming the owner of fixed property it did not pay for, Liebenberg said.
He remarked as well that there is evidence from which it could be concluded that Nghixulifwa used his position as chief executive of the RCC for the gratification of /Ae//Gams Engineering, which would be a contravention of the Anti-Corruption Act.
The state is also alleging that Nghixulifwa and Nghinamwaami defrauded the RCC and the construction company Murray & Roberts in December 2004 by concealing Nghixulifwa’s shareholding in Cradle Investment and inducing the RCC and Murray & Roberts to pay a “facilitation fee” of N$150 000 to the company and Nghinamwaami for the role they had supposedly played in the construction of a new head office for the RCC.
It is alleged that in fact Nghinamwaami and Cradle Investment had not been appointed as project facilitators and were not entitled to receive such a fee.
Nghixulifwa and Nghinamwaami did not apply for a discharge on the fraud charge they are facing in respect of that payment that Murray & Roberts made to Cradle Investment.
The three accused are due to return to court tomorrow to get dates set for the continuation of their trial.
They are remaining free on bail, granted to them with their first court appearance in February 2014.