In the jaws of justice

ELLANIE SMIT, JANA-MARI SMITH, MATHIAS HAUFIKU AND OGONE TLHAGE · Esau spent N$900k from undeclared account while in jail · NTB given Kora lifeline; Adjovi must pay N$46m · Judges say constitution must accommodate homosexuality · Govt ‘expected’ Botswana inquest outcome WINDHOEKA number of court cases have had Namibians on tenterhooks lately, and the Windhoek High Court was a hive of activity yesterday when several matters came to a head.From the prosecutor-general laying bare former fisheries minister Bernhardt Esau’s treasure chest of secret bank accounts to several High Court judges speaking out in favour of queer marriage – despite upholding a judgment that refuses to acknowledge them, it’s been a busy week for the courts.PG reveals Esau’s secret accountsOne of the country’s biggest corruption cases has been giving judges sleepless nights, especially considering the troves of documents they have to peruse.This week, the Office of the Prosecutor General (PG) filed a tranche of documents detailing how some of the Fishrot accused persons allegedly failed to declare their bank accounts to the authorities.Chief amongst those being former fisheries minister Bernhardt Esau.PG Martha Imalwa claims Esau failed to declare a Standard Bank account as well as other assets and liabilities, even after her office was granted a restraint order in the case.In the court papers, Imalwa said over N$920 000 was withdrawn from Esau’s account between 25 November 2020 and 1 December 2021.According to bank statements, the money was used to pay municipal and telephone bills and insurance policies. Payments were also made to purchase animal feed and farming equipment, while transactions at clothing and grocery stores were also recorded.The account also received monthly deposits of about N$75 000.“The account received one deposit of N$162 602.60, the source which is still unknown,” Imalwa revealed.She also claimed that Esau failed to disclose another Standard Bank account which had a positive balance of N$462 259.97. The account received four payments from unknown sources since the restraint order was granted.Yet another undisclosed account, according to Imalwa, is Esau’s Capricorn unit trust, which had a market value of just over N$1 million.NTB begins Adjovi chaseThe Namibia Tourism Board (NTB) says it will go all out, including going the Interpol route, to recover N$47 million owed to it by Mundial Telecom Sarl for not hosting the Kora Awards event, as per yesterday’s High Court ruling.This after Judge Herman Oosthuizen ruled in favour of NTB in the case which has been dragging on since 2016.He ordered that Mundial must repay NTB the amount of slightly more than N$23.5 million, with 20% interest per annum from 1 July 2016 to the date of final payment. It was also ordered to pay NTB’s legal costs.According to Namibian Sun’s calculations, this equals N$47 million from 1 July 2016 to 1 July 2021 only.CEO of NTB Digu //Naobeb said the company will decide how to recover funds, whether it is through Interpol or any other international instrument.The matter dates back to September 2016 when NTB first sued Mundial Telecom Sarl, Kora Awards founder Erenst Adjovi and Tonata Shiimi for N$23 million (plus 20% interest), which it paid for a platinum tourism package to market Namibia, but never received.Mundial Telecom owns the rights to host the Kora Awards, while Andjovi acted as the president of the company and Shiimi was the national director of the awards.//Naobeb said the ruling is a relief after so many years, Pierre Erasmus - who appeared on behalf of the defendants - said he must first present the judgment to his client before a decision can be made on whether they will appeal. Same-sex marriages dealt blowThree High Court judges on Thursday spoke out strongly in favour of Namibia legally recognising same-sex marriages, but nevertheless dismissed applications brought by two Namibians and their same-sex non-Namibian spouses who have fought for more than five years to have their marriages recognised by immigration authorities.The full bench, including High Court judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase, explained they are legally bound to a 2001 Supreme Court judgment, widely referred to as the ‘Frank’ case, which declared that same-sex relationships in Namibia are not legally recognised or protected, and discrimination against gays and lesbians is justified.Yet despite the cloud of disappointment felt by many in the immediate wake of the judgment, the ruling highlighted the support of the judges in favour of over-tuning the Frank findings, and the urgent need for Namibia to constitutionally afford equal recognition of all marriages, including same-sex marriages.“We believe it is time for Namibia’s constitution to reflect that homosexuality is part and parcel of our society, and that persons, human beings who are in homosexual relationships, are worthy of being afforded the same rights as all Namibians,” the judgment, read in full by Prinsloo, stated.The judgment was preceded with a quote by the late Bishop Desmond Tutu, a widely revered human rights defender.“I would not worship a God who is homophobic … I would refuse to go to a homophobic heaven … I am as passionate about this campaign [against homophobia] as I ever was about apartheid.”Following the judgment, the applicants’ lawyer, Carli Schickerling, said: “I feel it was a win in the sense that the court made it evident that we should have succeeded, although they could not give us that win today. I think we would rather lose the battle and win the war at the end of the day”.She added that the court felt bound to the High Court’s 20-year-old judgment, but made it clear they “wanted to help us”.Nevertheless, she said the judgment contained findings that would help boost the appeal.“The court has basically advised us to appeal, and I think that is what we will do. The court basically wrote the notice of appeal.”Daniel Digashu, husband of Namibian Johann Potgieter, said he feels “very positive”.“The general feel is that of an appeal going forward. So, it's not a total loss.”Namibian Anette Seiler and her wife Anita Seiler-Lilles have been together for more than 23 years, while Potgieter and Digashu have been in a relationship for more than a decade.Both couples have fought immigration authorities for more than five years for the right to be afforded the same residential rights as heterosexual Namibians married to foreign spouses.Govt reacts to BDF inquestDefence minister Frans Kapofi said he is not surprise that the Kasane Magistrate’s Court in Botswana exonerated members of the Botswana Defence Force (BDF) who fatally shot brothers Tommy, Martin and Wamunyima Nchindo and their cousin Sinvula Muyeme, who was a Zambian national.The quartet were gunned down by the BDF in November 2020, who claimed they had entered a restricted area of the Chobe River. Magistrate Taboka Mopipi ruled that the BDF cannot be held liable for the deaths of the slain brothers and their cousin.Weighing in on the matter, Kapofi said he did not expect the court to rule against the BDF members.“I don’t think I expected anything different, that is their court… It’s their court, they have decided. I don’t think anyone would have expected anything to the contrary.”Namibian Lives Matter representative Charles Siyauya said the ruling was unfortunate, but that it was now time for those affected to move forward.He highlighted that a small victory had been secured.“It’s a small victory. For the first time, an inquest has been conducted into the loss of lives involving Namibians at the hands of the BDF,” Siyauya said.Former commander in chief of the BDF’s ground forces Pius Mokgware said the ruling in no way meant that country’s army would unnecessarily threaten the lives of those living along the borders with Botswana.“The BDF respect the law. They will never operate against or outside the international laws. I can assure you and every Namibian. They know how important Namibia is to Botswana, especially that we have relatives on both sides of the border,” he said.He further defended the conduct of the BDF, saying the slain men had unlawfully entered a restricted area.“There's clear evidence that the guys were in the wrong, looking at the time of the incident and the location. More so that they are locals, they are expected to know the rules.”

In the jaws of justice

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Namibian Sun 2022-05-29

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In the jaws of justice

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Namibian Sun 2022-05-29

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