Justicia Shipena
Defence lawyer Sisa Namandje has accused the state of abusing its power in the multi-million dollar Namcor corruption and bribery case.
He argued that the arrests were unnecessary and done to satisfy public pressure, not based on legal grounds.
“The state, with respect, came to Court with dirty hands. It used the legal processes for an ulterior purpose. Accordingly, it will be against public policy to assist the state in such circumstances,” Namandje told the Windhoek Magistrates Court on Monday.
He is representing businessman Peter Elindi, his brother Malakia Elindi, and Malakia’s wife, Lydia Elindi. The three are among the nine accused and five entities in the ongoing N$480 million fuel supply and money laundering case.
He said the arrests of his clients were done without legal justification and to satisfy public pressure.
“It is shocking that people in Namibia are arrested based on public interest without being informed of the charges against them,” he said.
Namandje told the court that some of the charges do not exist in law.
“We were supposed to be informed last week when my client was arrested. Now the state is running around and adding charges overnight. There are charges in here that do not exist. We want justice. We are prepared to proceed with the application,” he said.
He argued that the arrests were not urgent or necessary and that the accused had cooperated with investigators.
“It is clear that the arrest of the accused was not necessary in this case. It was simply effected because those who arrested them have power to do so,” he said.
Namandje cited legal precedent that arrests, especially in non-violent, white-collar cases, must be handled with care and discretion.
He questioned the State’s opposition to bail and said the N$480 million figure being used in the media is exaggerated.
“The grounds for objection to granting of bail are not based on real fear that the administration of justice will be prejudiced if the accused are released on bail. These grounds are thumb-sucked without any underlying facts and good reason.”
He argued that the alleged transactions were done in the accused’s capacity as directors of Enercon Namibia (Pty) Ltd, and not in their personal roles.
He said the state should have charged them using section 332(5) of the Criminal Procedure Act, which deals with company offences. Failing to do so, he argued, made the charges “incompetent”.
Namandje accused the state of using media coverage to stir public outrage and exaggerate the seriousness of the charges.
“The state’s attempt to make its case stronger and more serious by… informing all and sundry that the accused are charged with offences of corruption, fraud and money laundering in the amount of about N$480 million is a deliberate misstatement,” he said.
He described the matter as a commercial dispute between Enercon and Namcor, noting that Namcor has already filed civil claims related to the same transactions.
Namandje said the defence would prove that granting bail would not harm the administration of justice and that the accused are entitled to the presumption of innocence.
“Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example… If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself,” he said, quoting international case law.
The state is opposing bail for all nine individual accused, arguing that it is not in the public interest and that there is a risk they might flee.
The bail hearing continues today, with Peter continuing his testimony.
