Prosecutor general Martha Imalwa has challenged an application by First National Bank to intervene in the application of forfeiture of various properties belonging to the Fishrot accused in relation to the Prevention of Organised Crime Act (POCA).
According to Imalwa, the bank failed to join the curator bonis who is a legal representative appointed by a court to manage the finances, property, or estate of another person unable to do so because of mental or physical incapacity. The corresponding office in common law is that of the conservator or guardian of the property. According to Imalwa, the functions of the curator bonis is to supervise the execution of the restraint order, including to generally administer and take the case of all the realizable properties of the defendants and those of the respondents. The PG's office has launched an application for a restraint of property order in respect of property belonging to the Fishrot accused, some of which were financed by FNB.
The defendants are Ricardo Gustavo, Tamson Hatuikulipi, James Hatuikulipi, Sacky Shanghala, Bernhardt Esau and Pius Mwatelulo. The legal entities under their control are Namgomar Pesca (Namibia), Erongo Clearing and Forwarding, JTH Trading, Greyguard Investments, Otuafika Logistics, Otuafika Investments, Fitty Entertainment, Trustees of Cambadara Trust, Olea Investments, Trustees of Omholo Trust, Esja Holdings, Mermaria Seafood Namibia, Saga Seafood, Heinaste Investment Namibia, Saga Investment, and Esja Investment.
Also cited as respondents are Ndapandula Hatuikulipi, Swamma Esau, Al Investments No Five, Oholo Trading and Gwaaniilonga Investments.
According to the PG, the bank claims relief that seeks to amend the powers and duties of the curators bonis which is a necessary and interested party to the intervening application which makes the application null and void. She further said that the failure of the bank to join the attorney general as an interested party since they also question the constitutionality of the provisions of the restraint order also proves to be fatal to their application.
Imalwa also says that the restraint order does not take away any interest the bank might have in the properties and another flaw in their application is that they failed to indicate whether there was a default on the payment of the mortgage bonds or instalments.
She also questioned why if not the bank engaged the curator bonis in order to determine how they intend to deal with the specific property to ensure its interest is protected.
Furthermore, the PG contends, FNB has failed to show that they had brought to the attention of the curator bonis that the market value of the properties in which it has an interest, is depleting, and that it will not contribute to the confiscation order, and that it should therefore be released from the restraint order.
"In light of the above, FNB should have first approached the curator bonis with regard to its interests in the said properties, before approaching this honourable court by means of this application to intervene for the purposes of requesting a variation of property order," she stated and continued: It is respectfully submitted that FNB failed to make out a case for the variation of the restraint of property order. She asked that the application be dismissed with costs for an instructing and instructed counsel.
The matter will be heard on 10 August. In a bizarre twist, the lawyers for the defendants in the forfeiture application have asked the presiding judge to recuse himself from the matter as he has previous knowledge and insight into the Fishrot cases.
Windhoek High Court Judge Orben Sibeya indicated that he will give his ruling on the recusal application on 9 June.