ACC summons Fishrot defence lawyer

27 February 2020 | Justice

The Anti-Corruption Commission (ACC) yesterday summoned South African lawyer, Advocate Tembeka Ngcukaitobi, to submit a statement explaining a N$50 000 payment he received in 2018 from State-owned company Fishcor.

ACC spokesperson Josefina Nghituwamata confirmed the summons.

“Yes, is true ACC served the lawyer with a summons this morning because [we] want a statement from him explaining why he was paid N$50 000 from Fishcor in 2018,” she told Namibian Sun. Fishcor is at the centre of the so-called Fishrot bribery scandal, and its CEO Mike Nghipunya and former board chairperson James Hatukulipi are currently behind bars regarding the matter. Ngcukaitobi's summons came as the accused persons in the Fishrot scandal brought a new application yesterday challenging the lawfulness of their arrest last November.

He is in the country to argue his clients' case in which they want the High Court to order their arrest on 27 November as unlawful and thus invalid.

The Fishrot accused face charges related to allegations that they received N$150 million or more in bribes in exchange for dishing out fishing quotas to international companies.

The State argues that Fishcor was used as a vehicle to advance these bribes. Those arrested in relation to this scandal are former fisheries minister Bernhardt Esau, former justice minister Sacky Shanghala, Hatuikulipi, Nghipunya, suspended Investec manager Ricardo Gustavo, Hanganeni employee Pius Mwatelulo and Esau's son-in-law Tamson Hatuikulipi.

Yesterday, Esau and his co-accused, with the exception of Nghipunya, lodged an application with the High Court to fight the warrants of arrests against them.

The six argue in court papers that the warrants “were not necessary”.

They hold that the warrants were issued in circumstances that constitute contempt of court, and without disclosure of the court order previously issued.

Esau was first arrested on 23 November 2019 and successfully challenged that warrant of his arrest.

The charges against Esau, which led to his first arrest, are in relation to allegations of corrupt practices, money laundering and fraud in relation to fish quotas to Namgomar Pesca (Namibia) and other persons and entities in Namibia, Cyprus, Iceland, Angola, Norway, Mauritius and the United Arab Emirates.

The six were then arrested on 26 November after the magistrate's court issued fresh warrants for their arrests.

Their first court appearance was on 28 November. They reappeared on 2 December and again on 20 February, and remained incarcerated pending further investigation into the bribes-for-quotas scandal.

They first brought this application on an urgent basis to the High Court in 13 December, but it was struck from the roll on 19 December. They again enrolled the matter to be heard in the normal course of things.

Their arguments

The accused said they have never interfered with the investigation started by the ACC into the alleged corruption at the fisheries ministry already started in 2014.

They said they neither caused anyone to fear that unless they are arrested, the administration of justice would be prejudiced.

They said they had agreed to cooperate with the ACC investigation and that they are not a flight risk.

“[We] could simply be summoned to appear before court,” they plead.

They argued that at the time of their arrests, the ACC's investigation was not yet completed, and that reliance was placed solely on a whistle-blower Johannes Stefannus, former employee of Icelandic company, Samherji.

The State argues that the charges against the six are “very serious”, given the gravity that two of the accused were former ministers who had used their positions for self-gratification and had allegedly perpetrated a series of other offences.

“[At] this critical juncture in the history of Namibia, when a constitutional democracy based on the rule of law must take root, the rampant crime is one of the greatest public concern,” the State argues.

It further argues that the arrests were not arbitrarily done.

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