Gustavo appears to grow weary of prison, fights for trial to start

When Angolan-Namibian businessman Ricardo Gustavo was arrested in November 2019 for his alleged role in the Fishrot corruption case, he was 38.

Now, after six long years behind bars, Gustavo is 44 years old, and the tone of his latest court filing suggests that prison life may be beginning to wear thin.

Of all six main accused in the scandal, Gustavo is the only one who has ever tasted freedom.

He faces several charges in the Fishrot corruption case, including corruption, fraud, money laundering, racketeering and tax evasion.

Prosecutors say the charges stem from an alleged scheme involving about N$150 million linked to fishing quotas allocated to companies tied to Icelandic seafood giant Samherji.

Gustavo became the first and only accused to secure bail when the Windhoek High Court granted his application on 15 December 2021, setting bail at N$800 000 and imposing strict conditions.

These included reporting to the police twice daily, observing travel restrictions, accepting possible GPS monitoring and refraining from contacting witnesses or co-accused.

He had earlier failed in a bail bid lodged in May 2020. After nearly two years in custody, the High Court ruling allowed him to spend about a year outside prison before the Supreme Court of Namibia overturned the decision in December 2022, sending him back to jail.

Gustavo’s brief period of freedom appears to have sharpened his desire to see the long-delayed trial begin.

Another delay

In a recent affidavit, he opposed an application by former justice minister Sacky Shanghala, arguing that the latest legal move threatens to prolong proceedings that have already dragged on for nearly six years.

Shanghala’s application calls for the recusal of presiding judge Marelize du Plessis, alleging she is no longer impartial.

Shanghala argued that remarks made by the judge describing several defence filings as “delay tactics” created a perception that the court had already formed a view about the conduct of the defence.

He also argued that the judge lacked sufficient experience to preside over such a complex matter, telling the court she had “not spent a single day as a judge before her appointment".

“The purpose of this application is not to delay the trial,” Shanghala stated in court papers, maintaining that the defence has reasonable grounds to question whether the court’s impartiality might reasonably be perceived to be compromised.

Gustavo, however, said Shanghala's application was merely intended to delay the start of the trial.

“Every time the matter is set down for progress, another interlocutory application is brought which prevents the trial from starting,” Gustavo argued in court papers.

Shanghala has brought more than five pre-trial applications before the High Court since the case moved toward trial.

Among them are an application under Section 319 of the Criminal Procedure Act seeking to reserve questions of law for the Supreme Court, an application for the separation of trials, jurisdictional challenges questioning whether the High Court can try some of the charges, and several disclosure-related applications demanding additional documents from the prosecution.

This highlights the growing tension surrounding a case that has yet to reach trial despite years of litigation.

Six long years

The Fishrot case first entered the courts on 27 November 2019 in the Windhoek Magistrate’s Court before magistrate Linus Samunzala.

It moved to the High Court in February 2020, when judge Shafimana Ueitele heard bail applications and refused bail to most of the accused.

After the indictment moved the matter toward trial, justice Christie Liebenberg became the first High Court judge assigned to manage proceedings.

Liebenberg recused himself in June 2021 due to a potential conflict of interest.

He was succeeded by Herman Oosthuizen, who later granted bail to Gustavo, a decision overturned by the Supreme Court in December 2022.

The case was subsequently assigned to acting judge Moses Chinhengo, who stepped aside after objections from the defence.

The case is now in the hands of Du Plessis, who continues to manage pre-trial proceedings.

When the six accused were arrested in November 2019, Shanghala was 42, former fisheries minister Bernhard Esau was 62, businessmen James Hatuikulipi and Tamson Hatuikulipi were 39 and 41, respectively; Gustavo was 38, and lawyer Pius Mwatelulo was 41.

Six years later, time has moved on, while the trial itself remains stalled in pre-trial litigation.