FORMER Cabinet ministers Bernhard Esau and Sacky Shanghala and their four co-accused in the Fishrot corruption case will no longer be appealing to the Supreme Court in an attempt to have the warrants that authorised their arrest in November last year reviewed and set aside.
The appeal that Esau, Shanghala and their co-accused planned to pursue against a High Court judgement in which their attempt to have their arrest warrants declared unlawful and void was removed from the court roll in December, should be withdrawn and abandoned, judge Herman Oosthuizen ordered in the Windhoek High Court on Thursday.
He made the order after Gilroy Kasper, representing the two former ministers and their co-accused, confirmed an agreement that the appeal would be abandoned and that judge Oosthuizen would instead expedite the hearing of their legal challenge against the arrest warrants.
The judge scheduled the hearing for 26 February, and told Kasper and Slysken Makando, the lawyer representing the respondents in the matter, that he would set himself a deadline of three months after the hearing to deliver his judgement, and would also try his level best to have the judgement ready within two months.
Esau, Shanghala, former Investec Asset Management Namibia managing director James Hatuikulipi, senior Investec employee Ricardo Gustavo, Esau’s son-in-law Tamson ‘Fitty’ Hatuikulipi, and Pius ‘Taxa’ Mwatelulo are asking the court to review and set aside the decision to issue the arrest warrants that led to them being taken into custody on 27 November.
They also want the court to review and set aside both Anti-Corruption Commission director general Paulus Noa’s decision to refer their case to the prosecutor general for prosecution, prosecutor general Martha Imalwa’s decision to institute charges against them, and Windhoek magistrate Linus Samunzala’s decision on 2 December last year to postpone their case to 20 February and to order that they should be kept in police custody in the meantime.
The six are further asking the court to order their immediate release from custody.
They initially launched their challenge against the arrest warrants in December as an urgent application, but suffered a setback when acting judge Kobus Miller ruled on 27 December that the matter did not meet the requirements to be heard on an urgent basis.
In his ruling, acting judge Miller remarked that Esau, Shanghala and their co-applicants did not explicitly set out the facts why their case had to be regarded as urgent. He also said: “The lingering impression is that the applicants themselves did not act promptly and with a sense of urgency, despite ample opportunity to do so.”
He stated further: “An applicant complaining about deprivation of his or her liberty should act with a sense of urgency according to the circumstances of the case. The rather leisurely steps followed by the applicants in approaching this court fly in the face of any sense of urgency on the part of the applicants to secure their release.”
In an affidavit filed at the court, Esau is claiming that the legality of the entire process of the issuing of warrants for his arrest and that of his co-accused, their actual arrests, them being charged and the postponement of their case, was destroyed because a section of the Anti-Corruption Act was not complied with, since the investigation of their case has not been completed.
He says that section of the law states that the director general of the Anti-Corruption Commission must refer a matter to the prosecutor general if an investigation has been completed and it appears to the ACC head that a corrupt practice had been committed.
Because the investigation of their case has not been completed, Noa could not have referred the matter to the prosecutor general and Imalwa could not have made a decision to institute charges against him and his co-accused, Esau claims. In the face of an incomplete investigation, there was no valid reason for the arrest of himself and his co-accused, he also says.
Esau, Shanghala and their co-accused have been arrested and charged on the basis of allegations that they had been involved in a scheme in which Icelandic companies corruptly paid them at least N$103 million to get access to Namibian fishing quotas.
They are currently fighting legal battles on several fronts. Except for challenging the lawfulness of the arrest warrants, the prosecutor general’s decision to charge them, and magistrate Samunzala’s decision to remand them in custody, they are also questioning the lawfulness of search warrants used by ACC investigators to collect evidence in their case. The case in which the search warrants are being attacked is scheduled to be heard in the High Court tomorrow.
In a third pending High Court case, James and Tamson Hatuikulipi and seven close corporations and two companies in which they, Shanghala and Mwatelulo have stakes are asking the court to declare that the Financial Intelligence Centre’s freezing of their personal bank accounts and accounts of the 11 corporate entities breached the Financial Intelligence Act and was unlawful and of no force and effect.
They are also asking the court to order the immediate unfreezing of their bank accounts.
That case is due to be heard on Thursday.