Fishrot a daylight robbery, says court
In the most damning ruling yet in the Fishrot scandal, a magistrate yesterday gave the clearest picture of the legal troubles the accused in the matter would face.
23 July 2020 | Justice
Windhoek magistrate Duard Kesslau yesterday described evidence presented before him during the bail hearing of Fishrot accused Bernhardt Esau and his son-in-law Tamson Hatukuilipi, who are implicated in the so-called Fishrot scandal, as 'daylight robbery'.
He denied the pair bail on account that the two men face a range of serious charges involving public funds, the magnitude of which has never been experienced in Namibian courts before.
Kesslau added that the accused both played a role in the bribery scheme starting with Esau, without whom this would not have been possible.
According to Kesslau, Esau was the one who used his position as minister to corruptly allocate quotas to Namgomar and National Fishing Corporation of Namibia (Fishcor).
Fishcor is at the heart of the bribery scandal, which has landed Esau, Tamson, ex-justice minister Sacky Shanghala, ex-Fishcor board chairperson James Hatuikulipi, suspended Fishcor CEO Mike Nghipunya and former Investec business manager Ricardo Gustavo behind bars.
Kesslau added that it was Esau who initiated legislative amendments when needed with Shanghala.
At that time, Shanghala was the head of the Law Reform and Development Commission (LRDC) and later became justice minister.
He added that at face value, the documents appear to be above board, but when one looks at the bigger picture, the question that comes to mind is “was this robbery in broad daylight?”
“Evidence suggests that both the Namgomar and the Fishcor matters appear to be initiated and orchestrated by Esau and Sackeus Shanghala. Laws were amended if needed, agreements made, companies registered, frequent name changes of entities and movement of monies between them. The obvious family link between Tamson and Esau cannot be ignored, linked in turn to a cousin James Hatukuilipi, and linked in turn to Ricardo Gustavo at the same company, Investec. Logic dictates that that cannot be all a coincidence,” he said.
According to Kesslau, money laundering is usually money obtained illegally and introduced back into the system through another type of business.
“These include uncontrolled gambling, a car wash, farming, lawyers' trust accounts – businesses ran by Tamson Hatukuilipi.”
He added that a tell-tale indication of money laundering is usually when money is constantly moved without reason from one entity to another.
“There were regular loans between Tamson and James. Why was that? It appears that none of you needed the monies,” he said.
Kesslau also asked Tamson why he had sent N$760 500 to his cousin, Ndapandula Hatukuilipi, in London, yet he claims not be in contact with her.
The duo is represented by Richard Metcalfe, assisted by Florian Beukes.
Kesslau dismissed Metcalfe's argument that white-collar crime should always get bail as exactly the reason why the public has lost their confidence in the justice system
“That is absolutely not a message that this court wants to portray, therefore, I find a valid ground for bail to be refused.”
Kesslau, however, pointed out that the Windhoek Magistrate Court will not keep an innocent person in custody if there is not a strong case against them.
Questions without answers
According to Kesslau, Esau and his son-in-law's refusal to be cross-examined has left the court with many unanswered questions.
Kesslau emphasised that sworn statements are used to save time during urgent applications, but the duo had enough time to answer under cross-examination in order to give the court an opportunity to observe their demeanour.
According to Kesslau, the duo has a strong case to answer to pertaining to a number of unexplained money transfers and the court is not convinced that they will not abscond or interfere with the investigation of the Fishrot cases.
He added that interference is always a possibility in every case, however, it can be successfully prevented with bail conditions.
“Both applications are well connected in various levels of society, so much so that Tamson knew of his pending arrest based on connections, according to his statement,” he said.
Kesslau also said the defence's assertion that whistle-blower Johannes Stefanson is a drug addict with an axe to grind against his former employer is highly unlikely.
“His credibility will be negatively influenced by his role, however, much of his evidence appears to be corroborated by documents, other witness statements and the flow of money. It is highly unlikely that in his drugged state of mind he decided to frame the applicants by taking pictures, mentioning them in minutes, etc,” Kesslau said.
According to Kesslau, Tamson suddenly found himself in 'property heaven' after his wedding to Esau's daughter.
Kesslau said it is unlikely that Tamson bumped into Icelandic Fishing giant Samherji directors by accident.
“It is unlikely that vast amounts of money will be paid for consultation or ensuring joint ventures to be signed up. In all probability, it was payment for their parts played. Highly unlikely that Esau was unaware of the direct benefit Tamson was enjoying from the allocation of quotas to Namgomar or Fishcor,” he said.
He added that Esau was also aware that Tamson and Samherji are in business as he saw these officials at his son-in-law's house.
“Tamson, by his own admission, was paid per tonne of quota, which was ensured by Esau. If all was above board, why the need for all the different entities and monies being moved between them?” Kesslau asked.
Kesslau also wanted to know who had introduced Tamson to Stefanson at the Hilton Hotel in Windhoek.
“How did you know to be there? Evidence shows that you had a photo (wedding picture) ready to prove your relationship with Esau.”
Plot 51, Otjiwarongo
Kesslau also said Esau's explanation regarding the plot in Otjiwarongo can safely be rejected as false.
This is taking into account how his instructions changed from utter surprise to admitting signing a memorandum of understanding.