Xmas in cells for Fishrot 6

The High Court yesterday reserved its judgement in the landmark fishing bribery case, as the accused seek their release from custody on technicalities.

20 December 2019 | Justice

Six men challenging their arrest on allegations of receiving millions of dollars in kickbacks, in exchange for availing Namibian fishing quotas to an Iceland seafood company, will spend Christmas behind bars after the High Court yesterday reserved its judgment in their urgent application to be released.

Judge Kobus Miller indicated he would deliver his judgement on 27 December, dashing any hopes former ministers Bernhardt Esau and Sacky Shanghala had of spending Christmas with their families.

Four other men are also currently behind bars alongside the two disgraced former ministers. Yesterday Namibia law-enforcement and justice officials came under severe attack from the Fishrot Six's high-powered legal team, including two South African advocates who 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 re-arrested 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 2019. 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.

The six accused are Esau, Shanghala, former chairperson of the Fishcor board of directors James Hatuikulipi, Tamson Hatuikulipi, Ricardo Gustavo and Pius Mwatelulo. They were not at court yesterday.

Advocate Piet van Wyk, who argued on behalf of the state, insisted yesterday that the urgent application by the Fishrot Six to have their arrest warrants set aside was baseless.

Van Wyk argued that the application had no urgency and that the applicants would be afforded substantial redress in the normal course of the legal process.

“This we say that the redress here includes the avenue to enrol their abandoned bail application and that, should the criminal trial eventuate, they may raise all the concerns they have with regard to the warrants of arrest,” he said.

Judge Miller, who reserved judgment on the matter until 27 December, asked Van Wyk why there would be a need for a bail application if the warrants were unlawful in the first place.

Van Wyk said in his view the warrants were lawful and the applicants had recourse to other routes if they want to regain their liberty.

“Urgency is a condition imposed by reasons of circumstances beyond his or her control. It is thus our contention herein that this matter is in no way urgent, in that the applicants from their papers filed of record herein do not at all allege nor explain which conditions, if there is one, nor do they explain any facts or circumstances beyond their control. This apparent absence of what they ought to have explained has indeed a consequence that this matter stands to be dismissed,” said Van Wyk.

He also said the applicants must explain why their application was delayed until now.

Van Wyk also responded to Ngcukaitobi, who had said there was no indication why the warrants for the arrest of his clients had been necessary.

“The Windhoek magistrate, as is also set out in his affidavit, fully complied with these jurisdictional requirements to authorise the warrants of apprehension and the relief sought in this application should be dismissed with costs,” Van Wyk said.



Impermissible

Ngcukaitobi suggested that the second arrest warrant issued on 27 November was replicated from the initial warrant issued on 23 November, and that amounted to contempt of court.

“This is impermissible,” he said.

Ngcukaitobi argued that if a warrant was set aside, it would be acceptable to apply for a second time but that should be based on new facts.

“No new facts have been produced. Instead, the affidavit in support of the warrant of 26 November regurgitates the affidavit of 23 November 2019. This leaves the inescapable conclusion that the application of 26 November 2019 was simply a trick to circumvent the order of 23 November 2019,” he said.

He said the allegations in the affidavit 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.



Freedom is key

Another argument made by Ngcukaitobi was that there was a duty of disclosure where warrants of arrests were concerned. In this case, he argued, the duty was higher because it concerned the deprivation of liberty and a violation of rights contained in the Namibian Constitution.

“It is plain that the investigation was not yet completed at the time the matter was referred to the prosecutor-general - indeed it appears that reliance was placed solely on the 'whistleblower' report to take far-reaching decisions including the arrest of the applicants.

“The affidavit in support of the warrant should have reflected the incomplete stage of the investigation. That would have enabled the magistrate to apply his own discretion whether to authorise an arrest for an offence under the Act. The failure to disclose this fact vitiates the warrant as it breaches the duty of utmost good faith,” he said.

However, according to Van Wyk, there was no duty on the Windhoek magistrate to disclose why the first warrant was set aside.

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JEMIMA BEUKES

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