B1 City fraud suspects Kelly Nghixulifa, Anna Ndoroma and Hafeni Nghinamwaami suffered mixed fortunes yesterday morning when they were discharged on some of the charges and put on their defence on others they face in the Windhoek High Court.
Judge Christi Liebenberg acquitted Nghixulifa on three counts and put him on his defence on eight counts and Ndoroma on one count while Nghinamwaami was discharged on two counts and put on his defence on two counts.
They are facing charges of fraud and contravening the Anti-Corruption Act. At the centre of the matter is a loan of N$4.8 million that Nghixulifa allegedly secured for Ae//Gams Engineering to purchase Erf 10485 along Independence Avenue without declaring his interest in the company.
Nghixulifa, who resigned after the ambitious supposed construction of B1 City, opposite the Katutura state hospital, went belly-up, is facing 11 charges of fraud and contravening the Anti-Corruption Act, while Ndoroma faces four counts and Nghinamwaami four counts.
Nghixulifa already lost a battle in which he wanted the court to quash eight of the charges as unconstitutional.
The judge stated that where the State proved a prima facie case against the accused, discharge will not be granted. While Nghixulifa conceded that several of the charges against him deserve an answer, he questioned the veracity of the charges in his section 174 application. According to the judge, evidence presented shows prima facie that fraud was committed in relation to the purchase of Erf 10485 and register it in the name of /Ae//Gams Engineering. In achieving this goal, the judge said, Nghixulifa was instrumental in that he not only oversaw the process, but also authorised the payments.
He further said that evidence was presented that the three accused acted in concert when they made false representations to RCC, its board and other managers regarding the purchase of the Erf and that they were acting in good faith when entering into a contractual agreement with /Ae//Gams to the actual or potential loss of RCC in the amount of N$4 494 419.92.
However, the judge stated, when regarding the manner in which the process was handled and the fact that Ndoroma and Nghinamwaami were only implicated due to their close proximity to Nghixulifa does not prove they were involved.
In fact, the judge said, in the case of Ndoroma, it was because of an assumption that she was a nominee shareholder for Nghixulifa in /Ae//Gams and Nghinamwaami only became a director after the B1 City transaction has been concluded. With regards to the count of obtaining gratification, the judge reasoned that Nghinamwaami, as a director of Cradle Investments at the time, was in control of the property, which amounts to gratification and as such, he must be put on his defence. With regards to the payment of N$29 000 to Nghinamwaami by PWC, the judge found that there is enough evidence to put them on the defence. On the contravention of the RCC Act, the judge said there is not enough evidence to put Nghixulifa on his defence and he is entitled to a discharge. On the charge related to the payment of N$92 729.26 towards the home loan of Brian Nalisa, the judge said it would seem that Nghixulifa acted outside his powers as CEO and is put on his defence.
He further found that the facilitation fee paid to Nghinamwaami by RCC was also an issue that needs answers.
The matter will resume tomorrow to determine the date for the defence case.