Namibia: Conflict of Interest Hits Fishrot Probe Lawyers

SIX council members of the Law Society of Namibia investigating the possible role of lawyers in the Fishrot scandal face conflict of interest allegations, raising fears it will compromise the integrity of the process.

The Namibian understands that some of the lawyers are either friends of or represent some of the accused. Others are close associates of legal practitioners whose clients are implicated in the scandal.

The law society - which regulates the conduct of legal professionals - announced in December last year that it was investigating lawyers linked to Namibia's biggest fishing scandal.

Sources say the law firms include De Klerk, Horn and Coetzee Inc; Ellis Shilengudwa Incorporated (ESI); Malherbe Associates Inc; and Sisa Namandje and Co Inc.

Bank records show that they were involved in the dubious transfer of more than N$150 million from the state-owned National Fishing Corporation of Namibia (Fishcor).

Those familiar with the matter say the law firms were flagged during investigations by the Anti-Corruption Commission (ACC) and the Namibian police.

The Namibian understands that the law society's main task is to establish whether the firms allegedly used trust accounts as conduits for money laundering or any other malfeasance related to the Fishrot saga.

The probe will reportedly also look at whether they complied with the society's requirements on trust accounts, which are used to keep money a client entrusts to a lawyer.

However, around 80% of the legal practitioners involved in the investigation are directly or indirectly linked to people or entities implicated in the Fishrot saga.

The law society's council consists of eight members elected for a two-year term. Its quorum requirements are that five council members should be present for a meeting to be legally constituted.

The Namibian understands that only vice president Vanessa Boesak and Eldorette Harmse are able to freely participate in Fishrot discussions because they have no links with the case.

The other six council members: Appolos Shimakeleni, Gilroy Kasper, Jo-Marie Koekemoer, Eliaser Nekwaya, Etuna Josua, and council president Meyer van den Berg, allegedly have links with suspects in the scandal.

THE CONNECTIONS

- Appolos Shimakeleni is representing former justice minister Sacky Shanghala and Pius (Taxa) Mwatelulo.

He initially represented all six Fishrot accused - former fisheries minister Bernhard Esau, Shanghala, James Hatuikulipi, Ricardo Gustavo, Tamson Hatuikulipi and Mwatelulo.

"The understanding that you shared regarding my declaration of conflict of interest is correct. Regarding your further questions, kindly address those with the Law Society of Namibia," Shimakeleni told The Namibian last week.

- Eliaser Nekwaya, who previously worked with Shanghala at the attorney general's office, represented former minister Esau when he was arrested in connection with the Fishrot saga.

- Gilroy Kasper is representing Esau, James Hatuikulipi and Tamson 'Fitty' Hatuikulipi.

- Etuna Josua, company secretary at the state-owned Epangelo Mining, is said to have told fellow council members he is a close friend of Shanghala.

- Jo-Marie Koekemoer worked with Danie Malherbe whose firm is under investigation. Malherbe confirmed the investigation, saying it is related to the Financial Intelligence Act. "But there is nothing untoward about it," he said.

- Meyer van den Berg worked with Joos Agenbach at Koep and Partners. Agenbach represented Samherji, the Icelandic fishing company accused of allegedly bribing Namibian officials. Agenbach told The Namibian he has since left Koep and Partners but continues to represent Samherji.

VESTED INTERESTS

Lawyers who spoke to The Namibian on condition of anonymity, described the situation as worrying and said it cast doubt on the integrity of the law society.

Another lawyer said a number of council members have not completely recused themselves. They allegedly request information on what is going to be discussed to allow them to gauge whether they are in conflict with a particular component of the investigation.

Law society chairperson Meyer van den Berg told The Namibian last week that some council members declared conflicts of interest and have not participated in discussions or voting.

"The reasons for declaring conflicts vary. For reasons of confidentiality, we cannot disclose particular information on the conflicts disclosed," he said in a written response to questions.

"The legal fraternity is a small fraternity and, in the light of the fact that many of our councillors are practising legal practitioners (attorneys and advocates), conflicts of interest sometimes arise when council has to make a decision about a particular firm or legal practitioner," Van den Berg said.

"This may be because the relevant counsellor was or currently is employed by that firm or legal practitioner, received instructions from them or is otherwise linked to that firm or practitioner in some or other professional capacity."

Van den Berg responded on behalf of the law society and his council colleagues after The Namibian sent questions to individual members. They opted to respond jointly.

SUITS

Since last year, The Namibian has reported that from 2015 to 2017, lawyers allegedly colluded with politicians to transfer millions of dollars from Fishcor to benefit political operatives and Swapo political campaigns.

These include De Klerk, Horn & Coetzee (DHC) Inc (N$90 million), Ellis Shilengudwa Inc (N$50 million) and Sisa Namandje & Co Inc (N$17,5 million).

De Klerk, Horn & Coetzee (DHC)

DHC is linked to N$90 million paid out in questionable transactions from Fishcor. The money was allegedly disbursed to individuals implicated in the Fishrot scandal.

One of the people being sought by the ACC is lawyer Marén de Klerk, a close associate and the lawyer of former justice minister Sacky Shanghala.

ACC wants to question De Klerk about his alleged or possible involvement in Fishrot. De Klerk travelled to South Africa on 17 January and has not returned.

"We are giving our full cooperation to all government institutions and will continue to do so. We are cooperating with the law society and have invited them to engage us if they wish to do so. This process is not yet finalised. I have no further comment," DHC director Stoan Horn said on behalf of the firm.

Ellis Shilengundwa Incorporated (ESI)

The ACC confirmed that it is investigating Ellis Shilengundwa Incorporated on N$50 million deposited in the firm's trust account by Fishcor in 2017.

ESI's board of directors responded that they were not aware of the law society's investigation. They said they had not been informed about, nor furnished with any particulars about the "alleged" investigation.

"We state for the record once again that we uphold the highest standards and ethics, and strongly refute any wrongdoing insofar as it is alleged. We reiterate that our work with Fishcor is legitimate and is in no way related to any Fishrot allegations. If we were ever contacted by the authorities, we would naturally cooperate fully," the board said.

They confirmed receiving the N$50 million but said the transaction was legitimate and meant for a client - José Luis Bastos - who sold a horse mackerel factory to Fishcor. The price of N$160 million was allegedly inflated by N$50 million.

Sisa Namandje and Co

Bank records show that Fishcor made two payments amounting to N$17,5 million into the firm's trust account.

Namandje denied any wrongdoing and refused to reveal the beneficiaries.

It later emerged that around N$7 million went to businessman Vaino Nghipondoka while N$6 million was paid to Swapo's Oshikoto regional coordinator, Armas Amukwiyu.

"Unfortunately, we do not discuss any of our relationship/engagement with the LSN with the media or public. We, however, repeat, as we have in the past exhaustively stated, that we committed no offence, disciplinary or otherwise," lawyer Sisa Namandje said this week.

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