Associates shun broke Fishrot crew

Legal bills exceed half-a-million mark

29 July 2021 | Justice



The accused persons in the Fishrot matter say they have racked up a massive legal bill they cannot afford, and those who are in a position to help them financially are reluctant to do so, fearing victimisation.

They now claim that the court order to freeze their assets has incapacitated them financially, leaving them with a N$580 000 legal bill.

This bill only relates to the Prevention of Organised Crime Act (POCA) provisional restraint order granted against the six Fishrot accused persons - Bernhardt Esau, Tamson and James Hatuikulipi, Sacky Shanghala, Pius Mwatelulo and Ricardo Gustavo - and at least 18 of their respective companies in November 2020, which they are challenging.

Esau and Tamson’s wives, Ndapandula and Swamma, were listed as respondents in the matter.

In court papers filed on Monday, Esau said to fight the POCA case against them, they have been forced to appoint senior counsel to consider the appeal due to the “extensive and complex nature of the papers filed by the applicant”.

“We have been attempting since January 2021 to secure the necessary funds to secure senior counsel. We had some former business associates who advised that they will be able to pay our legal fees and that the funds will be available during April 2021.”

“Our former business associates during April advised that they are reluctant to assist us for fear of being targeted for assisting the so-called Fishrot accused persons,” Esau said.

The former fisheries minister said he and his son-in-law Tamson Hatuikulipi “simply do not have the necessary funds to pay our legal team and in particular to appoint senior counsel”.

He further stated that they have not paid their legal team so far this year, adding that they are preparing a court application in terms of Section 26 of POCA for the payment of legal fees.

The section makes provision for courts to allow affected persons to make use of their restrained property to pay for reasonable living expenses for that person and any person whom he or she is legally liable to support or maintain as well as reasonable legal expenses for that person in connection with any proceedings instituted against him or her.

Covid hindrance

Meanwhile, Esau said the Covid-19 pandemic has also hindered their ability to prepare their answering affidavits.

Apart from their legal teams being forced to close their offices due to employees who tested positive, Esau himself contracted Covid-19 in prison.

He said he underwent a Covid-19 test on 21 June and his results came back positive the next day. His lawyer Florian Beukes also tested positive days later.

Esau added that consulting with their lawyers is difficult “due to the Covid-19 restrictions imposed” at the Windhoek Correctional Facility.

According to him, they have a strong defence to the restraint application, adding that the Prosecutor-General Martha Imalwa failed to make material non-disclosures when her office lodged the restraint application, especially that which relates to the existence of a freeze on their bank accounts by the Bank of Namibia and treasury.

He also claimed that properties purchased prior to 2013 - when the alleged criminal offences took place - should not form part of the frozen assets.

Cause of delay

This week, Esau sought to explain why they failed to file their replying papers before 31 May as directed by the court on 2 April.

He said their legal team received the disclosure relating to the Namgomar case on 6 May, which consisted of about 49 arch lever files containing over 6 900 pages.

“Due to the voluminous nature of the disclosure, it is very difficult to provide instructions to our legal practitioners due to our incarceration as well as strict Covid-19 regulations imposed,” he said.

He added that their unsuccessful recusal application - in which they wanted Judge Orben Sibeya to recuse himself - also contributed to the delay, because they were eager to obtain a ruling on the recusal application swiftly because it had a direct bearing on the restraint application.

The recusal application lasted for almost four months. Esau said they had initially instructed their legal team to appeal the recusal application ruling issued last month, adding that this was not possible “due to lack of funds”.

The Fishrot legal team, according to Esau, has undertaken to file the papers by end of August “despite not having funds available and pending our application for legal fees”.