Esau and Fitty: ACC has nothing on us
22 July 2020 | Justice
It is not in the interest of justice to keep former fisheries minister Bernhardt Esau or his son-in-law Tamson 'Fitty' Hatuikulipi in custody when the Anti-Corruption Commission (ACC) does not know when investigations into Fishrot bribery claims will be completed, the pair's lawyer argued yesterday.
The two men are being kept in jail only on the basis of hearsay allegations made by 'drug addict' whistle-blower Johannes Stefansson, lawyer Richard Metcalfe told the court during final bail submissions yesterday. “What the honourable court is left with is the hearsay evidence of co-accused who are not even present in Namibia.
Stefansson is reported to be a drug addict with an axe to grind against his former employer, and [Marén] De Klerk is to all intents and purposes a disgraced lawyer, a liar according to the ACC, and a person who has been placed in a psychiatric institution from time to time,” he said.
According to him, it is clear that the State's case is entirely based on a conspiracy alleged by Stefansson, and not at all not based on credible evidence.
Metcalfe yesterday told the court that the ACC is not only underfunded, but simply does not know when its investigations will be completed.
He added that the ACC has no finance or investigation skills as it has assigned only three investigators to these “intricate” cases.
According to the lawyer, the State has failed to corroborate their “conspiracy” with documentary proof that monies were paid to any offshore account in Dubai, such as bank statements from the appropriate banking institution in Dubai, despite such request being made already at the end of 2019.
“Neither did the ACC have evidence linking the applicants to such amounts and or such offshore account. Such evidence was again mere speculation by the investigating officer to substantiate his false narrative to engender a false public interest,” he said.
Metcalfe yesterday asked why the ACC failed to inform the court of exorbitant amounts of monies paid to local asset management companies IJG, Pointbreak and Investec by De Klerk, Horn & Coetzee, the law firm co-owned by Maren de Klerk.
According to court documents, Pointbreak received N$22 million, IJG Securities received a N$49 million and N$12.5million and Investec received N$10 million from the trust account of De Klerk, Horn & Coetzee.
It also shows that Celax Investments, solely owned by fugitive lawyer De Klerk, paid N$1.27 million to Pointbreak Manco and N$2.8 million to De Klerk, Horn & Coetzee.
The ACC last week told Namibian Sun that it would pin its investigations on individual accounts held at cited asset management companies, and not necessarily on the companies themselves.
“If an investigation is conducted or to be conducted, it should be or it will be pinned on individuals' accounts until such a time this has changed otherwise,” ACC spokesperson Josefina Nghituwamata said.
Metcalfe reminded the court that the ACC testified that Celax Investments CC was used as a vehicle to distribute funds, under the pretext of government objectives, to those implicated in the scandal.
De Klerk is linked to N$90 million paid out in dubious transactions from the National Fishing Corporation of Namibia (Fishcor), which is at the heart of the Fishrot bribery scandal.
This has landed Esau, Tamson, ex-justice minister Sacky Shanghala, ex-Fishcor board chairperson James Hatuikulipi, and suspended Fishcor chief executive Mike Nghipunya in jail.
Esau and Tamson are represented by Richard Metcalfe, assisted by Florian Beukes.
Delivering the final oral submission in his clients' bail application yesterday, Metcalfe said this information, presented as Exhibit C, which is the State's own evidence, provides a shocking picture which the ACC choses to conceal from the public.
“The question is begged as to why these entities enjoy special status like the special status lawyers in this matter, who are apparently immune from prosecution.”