THE three people convicted of fraud over the role they played in getting the Social Security Commission to invest N$30 million with an unproven and inexperienced company more than 13 years ago have been spared imprisonment because evidence did not show they knew the SSC’s money was destined to be embezzled.
This was part of the remarks made by judge Christie Liebenberg when he sentenced the five people convicted over their involvement in the SSC’s botched investment in the Windhoek High Court yesterday.
Judge Liebenberg commented that despite the seriousness of the fraud committed by former Swapo Party Youth League leader, deputy minister and National Assembly member Paulus Kapia, fellow ex-member of parliament Ralph Blaauw, and the accountant Inez /Gâses, their blameworthiness was significantly reduced by the fact that they were not directly responsible for the loss the SSC suffered when its money was embezzled.
For Nico Josea (56), who was convicted of the theft of N$29,5 million that belonged to the SSC, the opposite held true, the judge also remarked.
“The evidence showed that he, from the onset, was in cahoots with the main perpetrator, the late Lazarus Kandara, with the sole intention to embezzle the SSC investment funds,” judge Liebenberg stated. “With the assistance of a third person in South Africa, by the name of Alan Rosenberg, they devised a scheme in order to create the impression that an alleged investment with Alan Rosenberg was ongoing, whilst it was not.”
Josea’s involvement as a co-perpetrator and his role in the deceitful planning of the crime were factors aggravating his blameworthiness and had to have an impact on the severity of his sentence, the judge added.
With regard to Kapia, Ralph Blaauw and /Gâses, though, he also noted, the court found that the crime they committed was not aimed at self-enrichment. They did not directly gain anything from their fraudulent conduct when they made misrepresentations to SSC managers to persuade them in January 2005 to invest money with Avid Investment Corporation, of which Kapia, /Gâses and Blaauw’s wife, lawyer Sharon Blaauw, were directors, the judge noted.
In its final analysis, the court found there was no evidence from which it could be inferred that Kapia, Ralph Blaauw and/Gâses, when they made misrepresentations to the SSC, knew that the money that was to be transferred to Avid would be embezzled, he also said.
Judge Liebenberg sentenced Josea to 17 years’ imprisonment on a charge of theft, and to a jail term of two years on a charge of conducting business with an intention to defraud. The two-year prison term must run concurrently with the 17 years’ imprisonment, the judge ordered.
Kapia, Ralph Blaauw and /Gâses, who was the chairperson of Avid’s board, were each sentenced to pay a fine of N$60 000 or serve a three-year prison term. Judge Liebenberg also sentenced each of them to a further two years’ imprisonment, suspended in full for a period of five years on condition that they are not convicted of fraud during that period.
Sharon Blaauw was sentenced to pay a fine of N$8 000 or serve a six-month jail term. She was found guilty of reckless conduct of business as a result of board resolutions of Avid that she signed without having ascertained that the documents, which were used to reassure the SSC of the safety of its investment with Avid, were correct.
The crimes of fraud and theft are deemed serious, and are usually punished with terms of imprisonment, judge Liebenberg noted. However, that would not allow a court to follow a blanket approach to send all offenders, irrespective of their personal circumstances or the facts of the case, to prison, he added.
On the public’s views about crime, the judge said: “Though it is not difficult to understand the feelings and emotions of society who are no longer prepared to put up with criminals in their midst, and who often voice their anger and frustration by way of public demonstrations or showing keen interest in the outcome of criminal cases, a court must always be mindful that public expectation is not synonymous with public interest.
“The courts have the duty to serve the interests of society and, though cognisant of their feelings and expectations, it should not blindly adhere thereto, but has to decide what sentence, in the circumstances of the particular case, will do justice to society as well as the accused.”
The trial before judge Liebenberg started in May 2014, when all of the accused denied guilt on all charges.
The court has been informed that the SSC ended up losing about N$20,1 million of the money it invested with Avid. An amount of about N$9,89 million was recovered through the liquidation of Avid.
Deputy prosecutor general Ed Marondedze led the prosecution in the trial. Kapia was represented by Sisa Namandje, Josea by Slysken Makando, /Gâses by Petrie Theron, and the Blaauws by Gilroy Kasper.
