Late drama as Esau is released

25 November 2019 | Justice

The Windhoek High Court was a hive of drama late yesterday after former fisheries minister Bernhardt Esau, who was initially denied release from custody in the morning, brought a second application on whose ground he was then released.

He was arrested on Saturday over allegations that he formed part of a bribery ring that received millions of dollars as kickbacks in return for preferential fishing quota allocation to Icelandic company Samherji.

The disgraced ex-minister's urgent application was to declare his arrest invalid on several technical grounds.

His lawyer Appolos Shimakeleni argued that the arrest was unlawful because the ACC investigators have no power or authority in law to investigate money laundering and that only a police officer may investigate money laundering in terms of Section 83 of the Prevention of Organised Crime Act (POCA) 29 of 2004.

“There was absolutely no reason for [him] to be arrested. There is no evidence or reason to fear that he would have jeopardised a police investigation in any way if he was not arrested. In fact, the arrest was not necessary,” Shimakeleni told the court.

“Given the importance of the right to liberty and the presumption of innocence, the applicant will suffer grave and irreparable harm if he continues being detained in the police cells. Because of his age and the position that he had, he apprehend that he will suffer irreparable harm in that his freedom and liberty are being taken away on the basis of an invalid process,” the lawyer submitted.

His urgent application argued he would suffer grave and irreparable harm if he remained in custody in the Wanaheda police cells where he overnighted Saturday.

Yesterday morning High Court judge Hannelie Prinsloo dismissed Esau's application to have his arrest declared invalid and gave the state time to prepare its answering affidavits and submit them today.

The court was scheduled to reconvene tomorrow to hear further arguments.

“Time is of essence when it comes to urgent applications. It's unfair to expect respondents to file their answering papers in one and a half hour,” Prinsloo initially said in the morning.

But in a separate ruling later in the day, the judge declared the arrest invalid and ordered the release of Esau.

Esau was arrested together with suspended Investec manager Ricardo Gustavo, who did not apply for bail, while the Anti-Corruption Commission (ACC) are still looking for former justice minister Sacky Shanghala and James Hatuikulipi over the same allegations.

It is now likely that Gustavo would seek release on the same grounds as his cohort Esau.

Shanghala and Hatuikulipi are believed to be out of the country and are expended to return to Windhoek today and hand themselves to police.

Shimakeleni is representing Esau in the matter, while the respondents in the matter include ACC, Namibian police, Magistrate of Windhoek, Prosecutor-General Martha Imalwa, Sebastian Ndeitunga the Inspector General of the Namibian Police as well as the Otjomuise police station, who are collectively represented by Advocate Slysken Makando.

Makando told the court yesterday morning that they were served with papers only at 07:56 yesterday morning and therefore needed time until this week to prepare proper answering affidavits.

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