High Court judge Orben Sibeya will in about two weeks' time give a ruling on the appointment of new curators to administer the assets of accused in the Fishrot fishing quotas fraud and corruption case that have been placed under a restraint order.
Sibeya heard oral arguments on the appointment of new curators in the Windhoek High Court yesterday, and at the end of the hearing postponed the delivery of his ruling on the issue to 19 February.
Prosecutor general Martha Imalwa and three of the accused in the Fishrot case - former attorney general and justice minister Sacky Shanghala, his business partner James Hatuikulipi and Pius Mwatelulo - are in a dispute about the appointment of new curators to take over the administration of assets first placed under a Prevention of Organised Crime Act restraint order in November 2020.
This is after the curators appointed to administer the assets affected by the restraint order, David Bruni and Ian McLaren, asked the court to terminate their appointment, as they do not have the capacity to carry out the work expected of them as curators. Bruni also informed the court in an affidavit that his and McLaren's administration of the assets has been "marred with frustration", which made effective management of the assets involved very difficult.
Sibeya ordered in August that the appointment of Bruni and McLaren would end with effect from the appointment of new curators to take their place.
In an affidavit filed at the High Court two weeks ago, Imalwa is now proposing that two South African curators, Johan Engelbrecht and Coenraad Stander, be appointed to take over from Bruni and McLaren.
Shanghala, Hatuikulipi and Mwatelulo are opposed to the appointment of the two South Africans, and are asking the court to appoint two directors of the Namibian accounting firm PKF Financial Consulting Services, Harald Hecht and Pierre Knoetze, as curators instead.
Imalwa has informed the court that Engelbrecht and Stander, who are based in Pretoria, are directors of the company Icon Curator Services and have experience as curators in several cases relating to South Africa's Prevention of Organised Crime Act.
She also said while her office was unable to secure a nomination for a Namibian curator, Engelbrecht and Stander have indicated that they intend to appoint Windhoek-based lawyer Sylvia Kahengombe as their agent in Namibia.
In an affidavit filed at the court last week, Hatuikulipi said the appointment of curators based in South Africa would increase the costs of the administration of the restrained assets. He also said this would be "a serious and unjustified departure" from the practice that Namibian curators are appointed in Prevention of Organised Crime Act cases in Namibia.
The curators' tasks would be performed more effectively, quicker and more painlessly by persons associated with a Namibian firm like PKF Financial Consulting Services, Hatuikulipi said as well.
During the hearing yesterday, state advocate Mariëtte Boonzaier argued that preconditions set by Hecht and Knoetze, who have said they should be paid for their services on a bi-monthly or quarterly basis, are contrary to what is stated in the Prevention of Organised Crime Act and regulations under it.
She argued that according to the act and its regulations, curators' fees should be paid from the proceeds of confiscated assets or by the state, if no confiscation order is made - that is, after the confiscation phase of a case.
The curators' expenses can be paid from the restrained assets, though, Boonzaier argued.
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On behalf of Shanghala, Hatuikulipi and Mwatelulo, senior counsel Vas Soni argued that the act and the property restraint order granted by the court provide for the payment of the curators' fees in the manner that Hecht and Knoetze have said they would prefer.
There is no provision in the act that precludes the payment of the curators' fees and expenses from the income derived from the restrained assets, prior to the conclusion of a criminal trial, Soni argued as well.
He added that there is no legitimate basis on which the appointment of Hecht and Knoetze as curators can be opposed.
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