Namcor fraud accused attack magistrate’s ‘hostile’ and ‘selective’ bail refusal in High Court appeal

Lawyers representing six of the individuals charged in connection with alleged fraud and corruption at the National Petroleum Corporation of Namibia (Namcor) yesterday attacked the ruling of a magistrate who refused the bail applications of the six accused in September last year.

The lawyers attacked the bail ruling during the hearing of appeals against the ruling in the Windhoek High Court.

The six accused appealing against magistrate Linus Samunzala’s decision to turn down their applications to be granted bail are former Namcor managing director Imms Mulunga, businessmen Peter and Malakia Elindi, former Namcor managers Jennifer Hamukwaya and Olivia Dunaiski, and Leo Nandago.

The state is claiming that the accused were involved in fraud, corruption and other offences allegedly committed when the fuel company Enercon Namibia, of which Peter and Malakia were shareholders, sold filling station assets at Namibian Defence Force bases to a Namcor subsidiary, Namcor Petroleum Trading and Distribution, for N$53.2 million in July 2022.

The state is also alleging that Namcor was defrauded when Enercon and another fuel firm, the close corporation Erongo Petroleum, bought fuel products from Namcor, exceeded their credit limits with the company and failed to pay for the products they had bought.

Samunzala concluded in his judgement, delivered in the Windhoek Magistrate’s Court, that although it was not shown that the six accused were likely to flee or interfere with state witnesses or the investigation of their case if released on bail, in his view it was not in the public interest or interest of the administration of justice for them to be granted bail.

He also remarked that the accused, with the exception of Dunaiski, “contradicted themselves in material respects” in evidence given during their bail heaing, and that their evidence “was riddled with material contradictions and falsehood.”

Defence lawyer Sisa Namandje, representing Peter and Malakia, argued during the appeal hearing before judges Eileen Rakow and Philanda Christiaan that the magistrate adopted a “hostile approach” when he considered the evidence given by the six accused, and at the same time “was not prepared to point a finger to the investigating officer”.

The magistrate “did not undertake a fair and objective assessment of the evidence”, Namandje argued.

He proposed that the Elindi brothers should be granted bail in an amount of N$50 000 each.

Boris Isaacks and Ngakumbirue Katjivena, representing Mulunga and Nandago, respectively, both argued that Samunzala had “a blanket approach” to the six accused, despite differences in their circumstances.

Katjivena argued also argued that the case against Nandago, which centres around a payment of N$500 0000 that was made by Erongo Petroleum while he was allegedly its sole member, was weak.

Katjivena suggested that bail in an amount of N$5 000 should be granted to Nandago.

On behalf of Dunaiski, defence lawyer Gilroy Kasper argued that the investigating officer in the case had a hostile attitude when he testified during the bail hearing, but the magistrate poured cold water on objections about his demeanour.

The magistrate’s reliance on the public interest and the interest of the administration of justice was “plucked out of thin air”, without any enquiry conducted on those aspects, Kasper argued.

He proposed that Dunaiski be granted bail in an amount of N$15 000.

The appeal hearing is continuing on Friday.

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