An application by four Fishrot corruption and fraud accused in which they seek to restrain and stop the government from continuing to prosecute them, has been said to be unprecedented.
According to the Anti-Corruption Commission (ACC) and other government respondents brought to court, what the applicants are asking for has never really been done before.
The said application was lodged by former justice minister Sacky Shanghala and his three co-accused, James Hatuikulipi, Pius Mwatelulo, and Otneel Shuudifonya.
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The four, charged for various offences in the Fishrot criminal matter, first and foremost asked the civil court to interdict and restrain the prosecutor general from continuing to prosecute them in the criminal case.
The interdict was pending the determination of Part B of that application, in which they are asking the court to make a wide range of declarations and to review and set aside numerous actions taken during the investigations of the Fishrot case.
In addition, they are requesting the court to issue an interdict that would prohibit the use of a range of evidence gathered during the investigations by the ACC.
The ACC, the prosecutor general, the justice minister, the prime minister, the inspector general of police, the attorney general, the finance minister and the commissioner of the Namibia Revenue Agency are opposing the application.
In the respondent's heads of arguments, they raise concerns that if the application succeeds, every accused person could file for such an application before trial, claiming that some evidence was obtained unlawfully and ask the court to stop the prosecution.
"If the application is granted, it will open up the prospect of countless accused persons seeking to prevent even the commencement of their trials, by raising pre-trial contentions that some of the evidence which may be used against them will be inadmissible," they contend.
The government respondents also contend that the application is fundamentally flawed. They also argue that courts have repeatedly emphasized that it is for the trial court handling the criminal matter that should decide whether evidence is admissible.
Additionally, they argue that "the order that the applicants seek cannot be granted by a civil court in an opposed review application."
They also argue that the applicants have failed to satisfy the well-established requirements for the granting of an interim interdict, as they have not shown a prima facie right requiring protection, irreparable harm and the absence of another remedy.
"The applicants have delayed unreasonably, inexcusably ad without any adequate explanation in bringing the review application which forms the foundation for the application for an interim interdict."
They argue that this is an abuse of process as the applicants have repeatedly filed pre-trial applications over several years instead of allowing for the criminal matter to proceed.
In addition, they say that while the applicants have a right to a fair trial, they do not have a right not to be prosecuted. The respondents also deny the validity of the multiple claims by the applicants that the prosecution will rely on information and evidence which has been unlawfully obtained.
They also deny that they have acted unlawfully, or that they will do so.
However, they also say that even if the allegations were true, it still would not justify the relief sought by the applicants.
"When the State alleges an offence, the way to determine guilt is through criminal proceedings," they argued.
"If such proceedings have begun, even at the indictment stage, courts should exercise great caution before granting a declaratory order finding the accused's innocence and prejudging issues that should be decided at trial, as, in most cases, such an order is inappropriate," they contend.
They argue also that the criminal trial court is the court which is responsible for ensuring that the trial is fair and for deciding the validity of the challenges which are raised to the admissibility of evidence.
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"A court hearing a civil application, on the basis of the affidavits which are placed before it, is not in any position to make those judgments," they added.
The applicants want the court to decide, before the criminal trial starts, whether evidence is lawful, whether searches were lawful, whether the prosecution is fair, and whether the prosecution should continue.
However, the respondents contend that it is not for the civil court to decide, as those issues belong before the trial judge.
The respondents argue that the right to a fair trial is certainly fundamental, and what it guarantees is fair adjudication, not avoidance of adjudication.
"We submit that this Court will decline to intervene where adequate remedies are available through ordinary legal processes in the criminal court," they argued.
The matter was before court yesterday.
Photo: Heather Erdmann
