Fishrot 6 stay in jail
The so-called Fishrot Six will stay behind bars after an urgent application to have their warrants of arrest set aside was removed from the High Court roll.
30 December 2019 | Justice
They were also ordered to pay the legal costs of the respondents, including the Anti-Corruption Commission (ACC) and the Namibian police.
Former fisheries minister Bernhardt Esau and his co-accused former justice minister Sacky Shanghala former Fishcor board chairperson James Hatuikulipi, businessman Tamson 'Fitty' Hatuikulipi, former Investec Asset Management client manager Ricardo Gustavo and Pius Mwatelulo had challenged the legality of their arrests.
They are in custody after allegedly receiving about N$150 million in bribes in exchange for giving Iceland seafood company Samherji access to Namibian fishing quotas.
Miller pointed out on Friday that their rather leisurely approach to the court flies in the face of any sense of urgency to secure their release from detention.
He said they did very little to show the High Court what caused them not to immediately turn to it after their arrest on 27 November.
“The matter lingered in the magistrate's court for several days in pursuit of a bail hearing, which was ultimately abandoned, at least for the time being.
“The first of what was to be this application was made on 29 November, with an indication that it would be brought on 2 December with the bail hearing.
“That turned out not to be the case. The matter was allowed to linger on further until at least the 14th of December, when it was filed with this court,” Miller said.
According to him the defence counsel's explanation why they were delayed lacks important detail and remains vague and that the Fishrot lawyers' only response was that their clients have been deprived of liberty.
“It is correct that cases involving personal liberty should be treated with jealous regard to the constitution. However, the right to personal liberty, as guaranteed in Article 7 of the constitution, is not an absolute right,” Miller said.
On 19 December the Fishrot Six's high-powered legal team, including two South African advocates argued that the State had played a trick by regurgitating an unlawful warrant to arrest their clients.
The unlawful warrant stems from the arrest of former fisheries minister Esau, who was released from custody on a Sunday after the state and his lawyers agreed that the warrant was illegal.
South African advocate Thembeka Ngcukaitobi argued that when Esau was rearrested with his co-accused, “no new facts have been produced”.
“Instead, the affidavit in support of the warrant of 26 November regurgitates the affidavit of 23 November.
This leaves the inescapable conclusion that the application of 26 November was simply a trick to circumvent the order of 23 November 2019,” Ngcukaitobi said.
He said the allegations in the affidavit used for the arrest warrants did not set out a convincing basis for the need to arrest the applicants, and the officials had not disclosed that the investigations had been ongoing since 2014.
“In none of the affidavits filed in support of the application of the warrants of arrest is any allegation made for the case that it was necessary, particularly at this stage, to arrest the applicants,” Ngcukaitobi said.
In his view the respondents had not shown that arresting the accused was the only way to ensure their attendance at court, and therefore the arrest warrants were unlawful.