After a day of oral arguments in the High Court yesterday, Judge Thomas Masuku is set to deliver judgement on the urgent application of the incarcerated former Cabinet ministers and their co-accused on 27 February.
In his quest for legal justice, former fisheries minister Bernhard Esau, supported by former justice minister Sacky Shanghala and co-accused James Hatuikulipi, Ricardo Gustavo and Tamson ‘Fitty’ Hatuikulipi approached the High Court on an urgent basis on 10 January, challenging the process adopted in applying for the search warrants, the actual search, the search warrants themselves and the conduct of officers of the Anti-Corruption Commission (ACC) and the Namibian police.
The group is arguing that there was no application for the search warrants as there was no affidavit in compliance with the law relied upon for purposes of applying for the search warrants.
The search warrants were executed between 9-15 December 2019.
During oral submissions, the group’s lawyer Gerson Narib argued the matter is one of urgency as the applicant’s rights to privacy, dignity and the right to be subjected to fair administrative action have been violated.
“The applicants are limited in their interaction with the outside world. They are limited in their capacity to martial finances. The standard that must be applied to them must also take into cognizance the freezing of the applicants’ bank accounts and the unlawful seizures of ATM cards and the stock records as well as assets, which effectively cripple the capacity of the applicants to enforce and fight for their rights,” explained Narib.
Narib continued to argue that the search warrants that were issued by the magistrate of Gobabis and Windhoek were one-sided and this can be seen by how the two magistrates are now being represented by the same lawyers that are representing the other respondents.
The items that were seized as a result of the search warrants range from cellular phones, desktop computers, iPads, memory sticks and other external electronic information device that the ACC suspect to have been utilised in the alleged corrupt practices.
Using the same search warrants ACC seized N$60 000 that allegedly belongs to Esau’s son.
Esau also alleged N$18 000 belonging to his farm, a draft will, farm livestock records and receipts and other documents, were seized.
In addition, ACC officers further seized Shanghala’s vehicles – a Range Rover Vogue and Mercedes-Benz E400.
Furthermore, Shanghala’s will and that of other people not related to the investigations, were also seized as a result of the search warrants.
Responding to the allegations, the respondent’s lawyer Piet van Wyk who was assisted by Slysken Makando argued that the applicants failed to justify why they deemed their matter urgent.
“The applicants are heard of saying that they came to know about the search and seizure around 23 November 2019 or December 2019. Meaning, by the time they lodged the other application to attack their warrants for their arrest and detention on the 16 December 2019, the applicants were fully aware of those searches and seizures, hence their referral to them in those pleadings,” argued Van Wyk. He questioned why the applicants failed to include their attack in respect of the searches and seizures in the said proceedings, or let alone why they did not simultaneously lodge proceedings with that application.
Esau and his co-applicants are currently in police custody, detained at the Windhoek Correctional Services after they were arrested in November 2019 following reports that an Icelandic fishing company Samherji reportedly secured access to horse mackerel quotas in Namibia by paying bribes of around N$150 million to politicians and businessmen between 2012 and 2018, according to the Fishrot Files of Wikileaks.
Apart from this legal challenge, some of the accused have approached the High Court in an attempt to have their accounts in various financial institutions unfrozen.
The hearing is scheduled for tomorrow.
The group is due to make a routine appearance in the Windhoek Magistrate’s Court on 20 February.
–mamakali@nepc.com.na