James Hatuikulipi, the broke multimillionaire

Former investment boss James Hatuikulipi is not dealing well with the downward spiral his life has taken - from being an international investment manager with over N$100 billion in assets under his control as well as a personal net worth exceeding N$100 million to scrapping for legal fees as a trial-awaiting prisoner.

He faces charges ranging from racketeering, money laundering, corruption and fraud.

But before getting to that, he wants the court to declare certain sections of the Prevention of Organised Crime Act (POCA) as unconstitutional. This comes after the prosecutor-general in November 2020 was granted a provisional restraint order

against six of the Fishrot accused and 10 of their companies, including trusts.

At present, Hatuiklulipi has no access to his assets as they have all been frozen.

These include a farm east of Windhoek, apartments, houses and a luxury fleet of cars as well as an undisclosed amount of cash in various bank accounts. The assets are currently in the hands of curators David Bruni and Ian McLaren.

In court papers, Hatuikulipi claimed he will plead not guilty to the ‘animated’ allegations staring him in the face.

He narrated his professional journey in an affidavit signed on 1 July, adding that the assets and wealth amassed through that journey are now subject to the current legal proceedings, despite “not being linked to the financial crimes” he is accused of.

Big fish

Over the years, Hatuikulipi said, he worked for financial powerhouses such as Hong Kong Shanghai Banking Corporation (HSBC), Metropolitan Life, Alliance Capital and Investec Asset Management.

“My last assignment with Investec, which I had been executing from 2011, involved assets under management with a value of some US$7 billion (N$100 billion) across the continent.

"I was, however, forced to resign from Investec when my continued employment as managing director for Africa (excluding South Africa) became untenable in the wake of the animated allegations of corruption publicised by international and local media houses.”

Hatuikulipi said he built a network of businesses, contacts and relationships during his interactions with public and private sector players across the continent.

“It is in the course of these activities that I accumulated my assets,” he explained.

In his challenge, Hatuikulipi said: “The court must be satisfied that there is a link between the benefits that were derived by the defendant" and that they are "indeed the proceeds of and are connected to the criminal activities in issue”.

The restraint order has incapacitated him and subsequently prevents him from exercise his constitutional right to a fair trial since he cannot afford to pay his legal fees, he said.

Poking holes

He also feels that POCA grants the prosecutor-general and the courts too much power.

Hatuikulipi said: “Despite the far-reaching effect of the grant of restraint orders, no basis is set out in POCA for the need for such invasive and intrusive procedures.

“Moreover, no criteria are set out as to when to resort to provisions of POCA to secure the orders that have been identified in this affidavit.

“It is submitted that that omission invests the Prosecutor-General with an untrammelled discretion to determine against which restraint orders [it] should be applied for.”

He wants the court to declare unconstitutional the words “it appears to the court that there are reasonable grounds for believing that a confiscation order must be granted against the defendant” in 24(1)(a)(ii) of POCA.

Hatuikulipi further stated in his affidavit: “Accordingly, the restraint order issued by the High Court against the applicant and thereafter extended from time to time” should be declared unconstitutional and set aside.

He also raised red flags over the prosecutor-general’s decision to only seek a restraint order against some of the accused persons, while omitting others facing the same charges.