Namibia: Esau, Tamson Bail Appeal Hearing Postponed

23 November 2020

The Windhoek High Court on Friday postponed the bail hearing appeal of former fisheries minister Bernhard Esau and his son-in-law Tamson Hatuikulipi.

The matter was postponed after acting judge Orben Sibeya recused himself from the matter, citing that he previously presided over another that had details pertaining to the fisheries-bribery case before court.

Sibeya was scheduled to preside over the bail appeal hearing alongside Judge Marlene Tommasi.

The matter was postponed to 7 December for a new presiding officer and for allocation of new hearing dates.

Esau and his son-in law approached the High Court after magistrate Erich Kesslau refused their application to be released on bail in the Windhoek Magistrate's Court on 22 July.

In his judgement, Kesslau noted Esau and Hatuikulipi played a role in the lingering Fishrot scandal.

According to Kesslau, Esau used his position as minister to endlessly allocate quotas to Nengomar, Fishcor, and further initiated changes in law with the assistance of his co-accused and former justice minister Sacky Shanghala.

He noted in the argument that the suspects in the white-collar crimes should be granted bail is the reason why the public has lost trust in the justice system.

He further ruled that despite the State's failure to prove the accused are a flight risk and will interfere with ongoing investigations, they managed to prove beyond reasonable doubt that there is a strong prima facie case against Esau and Hatuikulipi.

The State also managed to prove there is public interest and the court could not ignore the obvious family link between the accused, according to Kesslau.

In their appeal, Esau and Hatuikulipi are claiming that Kesslau erred in judgement when he denied them bail on grounds it would not be in the interest of the public or the administration of justice.

They are further claiming Kesslau ignored the fact that investigations commenced in 2014 and to date, the prosecution has no idea when they will conclude their investigations.

They also noted Kesslau made a finding on their alleged guilt when a bail application does not deal with the question of guilt. The State, that is the respondent, has filed a notice of their intent to oppose the application.

Esau and Hatuikulipi were arrested on 27 November 2019 alongside Shanghala, James Hatuikulipi, Ricardo Gustavo and Pius 'Taxa' Mwatelulo. They are all facing counts of fraud, bribery, corruptly using office for gratification, money laundering and conspiring to commit corruption.

They are accused of acting in common purpose with the intent to defraud the Namibian government by signing a bilateral agreement purporting to be in the interest of Namibia but instead entered into the said agreement for their own benefit.

The prosecution is further alleging they received more than N$103 million in bribes from an Icelandic fishing company Samherji for continuous supply of horse mackerel quotas in Namibia.

In addition, the prosecution is charging the group for defrauding the Ministry of Finance when they made misrepresentations to the Directorate of Inland Revenue that Namgomar Pesca Namibia generated revenue of N$14.1 million from 2014 to 2019, whereas the company actually generated revenue of N$40.1 million.

The group, along with former Fishcor CEO Mike Nghipunya, is also facing fraud charges relating to N$75.6 million allegedly channeled from Fishcor to several law firms and entities for their benefit.

All accused are currently in police custody as all attempts they have made to be released on bail have thus far failed.

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