Trevor Brockerhoff, the lawyer of Fishrot accused Ricardo Gustavo, last week informed Windhoek High Court Acting Judge Kobus Miller that they to date have not received feedback on their petition to appeal his decision not to recuse himself from the trial for perceived bias.
Judge Miller refused to grant them leave to appeal his decision, and Brockerhoff then indicated he will petition Chief Justice Peter Shivute.
According to Brockerhoff, he indeed lodged the petition with the Chief Justice and is still awaiting a reply.
The judge then remanded the matter to 19 October for a decision.
During his ruling on the application, Judge Miller said after careful consideration of the arguments presented for and against the application, he came to the conclusion that another court will not come to a different conclusion.
Brockerhoff lodged the application on behalf of his client on the basis of perceived bias against his client following damaging remarks the judge made in a bail appeal ruling in 2021.
According to Brockerhoff, the judge in his own words said "the learned magistrate did not make a finding in so many words that a prima facie case is made out. A reading of the evidence of Mr Cloete, however, establishes a prima facie case against the appellant".
He said this surely proves that Judge Miller already read into the evidence on a factual basis, where a learned magistrate did not make such a factual finding as a court of first instance.
According to Brockerhoff, it is established law that a court of appeal is bound by the factual findings of the court of first instance and cannot merely interfere or make alternate findings without any basis.
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This, he said, was exactly what Judge Miller did in the bail appeal, which he resided over and clearly shows a predetermination or at least a potential for bias against his client.
He went on to say that Judge Miller continued in the same vein by pronouncing: "More pointedly, the evidence establishes that the appellant purported to be a director of an entity called Namgomar Pesca (Pty) Ltd, and made misrepresentations as to the fact such entity in fact existed, which entitled it to receive fishing quotas. The prima facie case is that these misrepresentations were an important part in the greater scheme allegedly hatched by the appellant and his co-accused".
Gustavo and Esau, together with former minister of justice Sacky Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Pius Mwatelulo, Nigel Van Wyk, Otneel Shuudifonya and Phillipus Mwapopi, are charged with corruptly receiving payments of at least N$103.6 million to give a competitive advantage to Icelandic fishing company Samherji in securing access to horse mackerel quotas in Namibia.
They are facing more than 40 counts, including racketeering, contravening the Anti-Corruption Act, conspiracy, corruptly using an office to receive gratification, fraud, theft and money-laundering, as well as defeating or obstructing the course of justice.
Also, on the list of people to be added to the charges is lawyer Marén de Klerk, who is charged as a representative of Celax Investments, which was allegedly used as the conduit to funnel millions of dollars from Fishcor to the bank accounts of the accused.
The State is yet to extradite De Klerk from South Africa and Icelandic nationals Egill Helgi Arnason, Ingvar Juliusson and Helgason Adelsteinn.
