Says there is no evidence to prove that they “sold a dream” to Namcor
Staff Reporter
BUSINESSMAN and brothers Peter and Malakia Elindi, who are ensnared in the over N$400 million National Petroleum Corporation of Namibia (Namcor) fraud and corruption trial, are appealing their denial of bail by Magistrate Linus Samunzala.
The two brothers argued that the magistrate fundamentally erred when he simply embraced and adopted the Investigating Officer’s assertion or a mere say-so that Enercon sold “a dream” to Namcor — without a proper and fair analysis, adding that his finding in this respect is not supported by evidence on record. This comes after the Elindis stood accused of defrauding the state petroleum entity of N$53 million after selling home-base fuel stations situated on various National Defence Force (NDF) bases, whilst the said assets already belonged to the Ministry of Defence.
The brothers argued that the judgment delivered by Samunzala is replete with serious errors, misdirections, and reveals a complete failure of a bail inquiry. Some of the misdirections are:
“The learned Magistrate (Samunzala) disregarded and mischaracterised various issues, particularly those in favour of the Elindis, and ignored the true facts and legal issues as presented by the parties. In this respect, his disregard and mischaracterisation of relevant issues constitute a total failure of justice and breach the Appellants’ Article 12 rights,” they argued.
They added that the poor, selective, and unfair assessment of factual and legal issues by Samunzala vitiated his decision to the extent that his failure to properly and fairly consider issues raised breached the Elindis’ rights to have access to court and have their dispute adjudicated in a fair, unbiased, competent, and objective manner.
“The judgment delivered by Samunzala is woefully lacking in cogent reasons why he generally preferred the Investigating Officer’s evidence over that of the Elindis virtually on everything, and is also woefully lacking in reasons why the Investigating Officer’s various material concessions and contradictions were not given negative prominence by Samunzala as he did with the Appellants’ testimonies. Accordingly, the lack of proper justification why the investigating officer’s evidence was embraced and accepted entirely is symptomatic of a flawed assessment of facts and issues that led to a complete failure of justice,” the Elindis state.
They further said that the magistrate allegedly failed to properly determine whether or not they gave gratification (bribes) to any of Namcor’s employees. “Instead, he resorted to a general statement that appears to suggest the Appellants’ involvement in the payment of gratification without a proper finding,” they said.
The Elindis also argued that Samunzala failed to truly hear them when he omitted to adequately explain his failure to deal with arguments presented by them on all material issues on bail, ranging from the defective and poor nature of the charges, failure of the Public Prosecutor to properly cross-examine the Elindis on charges, and the fact that a secondary inquiry must be conducted in respect of the appropriateness of bail if there is fear of jeopardy to the administration of justice.
Photo: File
