Fishrot 6 seek judge recusal
JEMIMA BEUKES
WINDHOEK
The Fishrot accused want Judge Orben Sibeya to recuse himself, claiming he had prior knowledge when he heard their bail hearing, which has disadvantaged their case in the Prevention of Organised Crime Act (POCA) matter.
Sibeya recently granted Prosecutor-General (PG) Martha Imalwa an interim restraint order allowing her to seize the assets of the accused.
Assets belonging to Tamson Hatuikulipi and Bernhardt Esau’s wives as well as 15 companies and close corporations belonging to them are also targeted.
In his founding affidavit, Tamson said he learnt from his lawyers that Sibeya obtained additional information on the matter not contained in the POCA application.
According to him, Sibeya was ready to go ahead hearing their bail appeal despite this, provided he and Gwaaniilonga Investments had no objections.
Gwaaniilonga and Tamson, however, insisted that the judge recuse himself from the matter.
Tamson’s cousin and co-accused James Hatuikulipi has interests in Gwaaniilonga, while its directors include Tamson’s wife Ndapandula Hatuikulipi and her brother Phillipus Esau.
‘Impossible’
“The prior knowledge of facts is a direct result of the POCA matter and the appeal hearing overlapping in that documents and evidence, including the affidavits of Gwaaniilonga and I, produced in support of the bail application and the part of the appeal hearing record also forms part of the POCA application,” Tamson said.
He added that it is “impossible” for Sibeya to have read the POCA application - which is 6 925 pages long - within an hour before the hearing commenced.
According to him, a document of this length would require at least five days for intensive reading.
“In light of the above, it is respectfully submitted that it is apparently impossible for the honourable Justice Sibeya to have perused and considered the papers, heard the matter and to have applied his mind fairly to the matter on 13 November 2020 and to grant the provisional restraint order on the same day. This very fact creates an apprehension of bias in my mind,” he said.
Tamson, Esau and Gwaaniilonga are represented by Metcalfe and Beukes.
Conflict of interest
Another accused in the matter Ricardo Gustavo, who insists his assets are not proceeds of crime, said Sibeya - who worked in the PG’s office - enjoys a longstanding friendship with her which dates back to 2001.
Represented by Brockerhoff and Associates Legal Practitioners, he also pointed out that Sibeya was the mastermind behind the POCA unit in the PG’s office, which has brought this very application to court.
According to Gustavo, so cosy is the relationship between Sibeya and the PG that he even represented her son in a criminal matter.
Gustavo added that the son of the lead prosecutor in the matter, Advocate Ed Marondedze, has worked for Sibeya in his law firm since 2019.
“The above set of facts illustrates a close continued relationship between the presiding officer and the Office of the PG, who are applicants in this application,” he said.
Biased vs impartial
In her response filed on Friday, 26 February, the PG dismissed these allegations by Gustavo and said they are inconsistent with the facts presented in the POCA application.
She added that the application for recusal must be brought and argued in the chambers, which his lawyer failed to comply with as well as to raise all alleged grounds for recusal.
She further said an apprehension that the judge may be biased is not enough, instead the apprehension should be that the judge will not be impartial.
According to Imalwa, what is required of a judge is judicial impartiality and not neutrality, because they are human and they bring life to the bench.
“There is a presumption that since judges are bound by a solemn oath of office to administer justice without fear or favour, they will be impartial in adjudicating disputes. It is for this reason that an applicant for recusal bears the onus of rebutting the weighty presumption of judicial impartiality.”
Metcalfe and Beukes indicated that they will respond to the PG on Friday, 5 March, in line with the court order.
The court also ordered that heads of arguments for Tamson, Erongo Clearing and Forwarding, Fitty Entertainment CC and Gwaaniilonga must be submitted by 19 March.
The other defendants in the matter must file their heads of argument on 26 March.
The matter was postponed to 30 March for status hearing.
[email protected]
WINDHOEK
The Fishrot accused want Judge Orben Sibeya to recuse himself, claiming he had prior knowledge when he heard their bail hearing, which has disadvantaged their case in the Prevention of Organised Crime Act (POCA) matter.
Sibeya recently granted Prosecutor-General (PG) Martha Imalwa an interim restraint order allowing her to seize the assets of the accused.
Assets belonging to Tamson Hatuikulipi and Bernhardt Esau’s wives as well as 15 companies and close corporations belonging to them are also targeted.
In his founding affidavit, Tamson said he learnt from his lawyers that Sibeya obtained additional information on the matter not contained in the POCA application.
According to him, Sibeya was ready to go ahead hearing their bail appeal despite this, provided he and Gwaaniilonga Investments had no objections.
Gwaaniilonga and Tamson, however, insisted that the judge recuse himself from the matter.
Tamson’s cousin and co-accused James Hatuikulipi has interests in Gwaaniilonga, while its directors include Tamson’s wife Ndapandula Hatuikulipi and her brother Phillipus Esau.
‘Impossible’
“The prior knowledge of facts is a direct result of the POCA matter and the appeal hearing overlapping in that documents and evidence, including the affidavits of Gwaaniilonga and I, produced in support of the bail application and the part of the appeal hearing record also forms part of the POCA application,” Tamson said.
He added that it is “impossible” for Sibeya to have read the POCA application - which is 6 925 pages long - within an hour before the hearing commenced.
According to him, a document of this length would require at least five days for intensive reading.
“In light of the above, it is respectfully submitted that it is apparently impossible for the honourable Justice Sibeya to have perused and considered the papers, heard the matter and to have applied his mind fairly to the matter on 13 November 2020 and to grant the provisional restraint order on the same day. This very fact creates an apprehension of bias in my mind,” he said.
Tamson, Esau and Gwaaniilonga are represented by Metcalfe and Beukes.
Conflict of interest
Another accused in the matter Ricardo Gustavo, who insists his assets are not proceeds of crime, said Sibeya - who worked in the PG’s office - enjoys a longstanding friendship with her which dates back to 2001.
Represented by Brockerhoff and Associates Legal Practitioners, he also pointed out that Sibeya was the mastermind behind the POCA unit in the PG’s office, which has brought this very application to court.
According to Gustavo, so cosy is the relationship between Sibeya and the PG that he even represented her son in a criminal matter.
Gustavo added that the son of the lead prosecutor in the matter, Advocate Ed Marondedze, has worked for Sibeya in his law firm since 2019.
“The above set of facts illustrates a close continued relationship between the presiding officer and the Office of the PG, who are applicants in this application,” he said.
Biased vs impartial
In her response filed on Friday, 26 February, the PG dismissed these allegations by Gustavo and said they are inconsistent with the facts presented in the POCA application.
She added that the application for recusal must be brought and argued in the chambers, which his lawyer failed to comply with as well as to raise all alleged grounds for recusal.
She further said an apprehension that the judge may be biased is not enough, instead the apprehension should be that the judge will not be impartial.
According to Imalwa, what is required of a judge is judicial impartiality and not neutrality, because they are human and they bring life to the bench.
“There is a presumption that since judges are bound by a solemn oath of office to administer justice without fear or favour, they will be impartial in adjudicating disputes. It is for this reason that an applicant for recusal bears the onus of rebutting the weighty presumption of judicial impartiality.”
Metcalfe and Beukes indicated that they will respond to the PG on Friday, 5 March, in line with the court order.
The court also ordered that heads of arguments for Tamson, Erongo Clearing and Forwarding, Fitty Entertainment CC and Gwaaniilonga must be submitted by 19 March.
The other defendants in the matter must file their heads of argument on 26 March.
The matter was postponed to 30 March for status hearing.
[email protected]
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