Namibia: Fishrot Accused Claims Unlawful Detention

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1 December 2021

Nigel van Wyk, the former employee of Fishrot accused Sacky Shanghala, has approached the ombudsman to help him in his quest to regain his freedom.

In a letter addressed to ombudsman Basilius Diakghuwa, Van Wyk claims his rights were never explained to him or that he was asked to give a warning statement during or after his arrest.

The ombudsman conducted an investigation, which revealed the office of the prosecutor general declined to furnish such warning statement, citing confidentiality and that the matter is currently pending in the High Court.

Van Wyk, who is currently embroiled in a bail appeal in the High Court, also informed the ombudsman his legal fees for his bail appeal currently adds up to N$140 000, which are beyond his means, as he is currently unemployed and in custody.

"These costs are unnecessary in the light of the circumstances, but since I am compelled to incur them in light of the prosecution's opposition to bail, I will claim back all costs from the PG's office should the High Court agree with me that my detention and continued deprival of liberty is unlawful," he stated.

Van Wyk has been in custody since 14 December 2014 when he was arrested at Shanghala's house while allegedly removing items from there.

He was refused bail in the magistrate's court, and his subsequent appeal in the High Court was dismissed.

He further said he was kept in custody by the Anti-Corruption Commission (ACC) from around 18h00 on 14 December 2019 until 17h00 the next day when he was finally taken to the Otjomuise police station, from where he was taken Monday to the Windhoek Magistrate's Court for his maiden appearance.

Not once during this whole period was he informed of his memoranda rights or was a warning statement obtained from him, Van Wyk claimed.

"It is my understanding that if my rights were not read to me, I was not warned of my rights and the judge's rules were not read to me, then my arrest was unlawful, and whatever occurs pursuant to an unlawful arrest is invalid and unlawful," he stated.

"Subsequent detention by order of a judicial officer in terms of the Criminal Procedure Act cannot render my detention lawful."

His bail application on new facts in the High Court that was set to start on Tuesday last week has been delayed several times ostensibly over 'issues' to be sorted out, but rumour has it that Van Wyk will plead guilty to the minor charges, and the State will withdraw the other charges against him.

That hearing is scheduled for 6 December.

Van Wyk is currently facing two counts of racketeering; three counts of money laundering, with its alternatives; one count of unlawful possession of ammunition; one count of defeating or obstructing the course of justice; one count of assault; resisting or obstructing an authorised officer, with its alternatives, and one count of theft.

He previously worked at the office of the Government Attorney, where he was a subordinate of Shanghala.

He resigned from his position as a senior legal clerk on 31 October 2017, and started working for Shanghala at Olea Investments.

It is stated that he benefitted in the amount of N$1.9 million.

He is represented by James Diedericks on instructions of Jermaine Muchali.

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