Namibia: Fishrot Probe - a Race Against Time

9 December 2020

The pending appeal against the refusal of bail lodged by former fisheries minister Bernhard Esau and his son-in-law Tamson 'Fitty' Hatuikulipi could be unnecessary if the decision of the magistrate next week goes in their favour.

Magistrate Vanessa Stanley had given the State until Monday 14 December to finalise its investigations or face the withdrawal of charges against the Fishrot accused.

Should the State fail to finalise its investigations into the Fishrot matter as the charges Esau and Tamson are facing are known, before the due date, it could be the straw that breaks the proverbial camel's back and pave the way for their freedom.

However, should the State complete its investigation and manage to present a completed docket to the prosecutor general, the stage will then be set for the appeal of Esau and Tamson against the bail refusal.

Esau and Tamson approached the High Court shortly after magistrate Erich Kesslau refused to free them on bail.

The appeal is now on the roll for almost six months.

It will, however, not be smooth sailing as the High Court ordered their legal team consisting of Richard Metcalfe and Florian Beukes to submit additional heads of argument on why the decision of the magistrate to refuse bail should be set aside by the upper court.

Metcalfe has in the meantime applied for condonation to supplement his arguments and that of the judges after no objection by prosecutor Ezekiel Ipinge allowed them.

Judges Harold Geier and Marlene Tommasi ordered Metcalfe must file his additional heads on or before 23 December and the State its reply by no later than 31 December.

If he wishes Metcalfe can then reply to the State on 8 January next year and the State by 15 January.

The application will then be heard on 15 January.

It was also announced that Judge Geier will not constitute part of the panel to decide the appeal as he is going on his yearly sabbatical.

A new judge will have to be instructed to form the panel with Judge Tommasi.

Esau and Tamson claim Kesslau erred in his judgement when he denied them bail on grounds that it would not be in the interest of the public nor administration of justice to release them on bail pending the finalisation of their case

The pair argued Kesslau ignored the fact that the ongoing investigations commenced in 2014 and to date the State has no idea when it will conclude its investigations.

Esau and Tamson were arrested on 27 November 2019, alongside former justice minister Sacky Shanghala, James Hatuikulipi, Ricardo Gustavo and Pius Mwatelulo.

They are all facing counts of fraud, bribery, corruptly using the office for gratification, money laundering and conspiring to commit corruption.

These charges emanate from them allegedly receiving more than N$103 million in bribes from an Icelandic fishing company Samherji for the continuous supply of horse mackerel quotas in Namibia.

The prosecution has charged 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 alongside former Fishcor CEO Mike Nghipunya face fraud charges relating to N$75.6 million allegedly channelled from Fishcor to several law firms and entities to the benefit of the accused.

- rrouth@nepc.com.na

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