Iuze Mukube
Proceedings in the Fishrot corruption and fraud trial have come to a standstill after the High Court was confronted with a legal disagreement over which application brought forth by the accused in the matter should take precedence.
The stalemate centres on the contention of whether the leave to appeal the recusal application or the leave to appeal the postponement application should be heard first.
Former justice minister Sacky Shanghala and his co-accused James Hatuikulipi are seeking leave to appeal to the Supreme Court the application that sought the recusal of the presiding judge, Marilize du Plessis.
Meanwhile, Otneel Shuudifonya, represented by Joas Neemwatya, is seeking a stay of proceedings for his lawyer to properly prepare for the main trial.
During proceedings yesterday, Neemwatya submitted that the court should not hear the application for leave to appeal against the postponement application ruling until judgement is delivered for the leave to appeal the recusal ruling.
He argued that the recusal application strikes at the core of the court’s competence, while the other application relates to a specific ruling of the court.
He added that the court failed to observe its own rules in permitting Ricardo Gustavo to intervene when he was not a party to the adjournment proceedings.
Gustavo’s lawyer, Ileni Gebhardt, countered that her client has a direct interest in the matter, which justifies his intervention in the proceedings.
The State, represented by Cliff Litubezi and assisted by Ed Marondedze, raised an objection, arguing that the applications are distinct and can be dealt with separately.
This is because waiting for finalisation in the leave to appeal the recusal ruling will result in further delays.
It argued further that the defence’s contention on Gustavo’s intervention should have been raised at the time of the hearing of the application for the court to bar him from participating.
Litubezi submitted that it is irregular to raise the issue on appeal, as the opportunity to have raised the issue has passed.
Additionally, he said that their contention should have been raised as grounds in the appeal instead of as a point in limine.
He also submitted that the application for leave to appeal the postponement ruling is defective and a nullity, as it does not clearly and specifically set out grounds of appeal as required by section 316(2) of the Criminal Procedure Act.
Litubezi added that the appeal against the postponement ruling is interlocutory in nature and that it is not appealable in terms of section 316(1) of the Criminal Procedure Act (CPA), which prohibits piecemeal appeals.
In addition, he submitted that the defence can only appeal against an order that is final.
However, the order for the trial to commence on 9 March 2026 was not final and could be altered by the court.
The court altered its order when it postponed the matter on 9 March 2026 to accommodate these applications.
Therefore, progress in this matter has been temporarily halted until 5 May, pending determination on the applications.
Shanghala, Hatuikulipi, Pius Mwatelulo, Bernardt Esau, Gustavo, Tamson Hatuikulipi, Mike Nghipunya, Shuudifonya, Phillipus Mwapopi and Nigel van Wyk are charged with corruptly receiving payments of at least N$300 million to give the Icelandic fishing company Samherji a competitive advantage in securing access to horse mackerel quotas in Namibia.
The accused face 42 counts, including racketeering, contravening the Anti-Corruption Act, conspiracy, corruptly using an office to receive gratification, fraud, theft, money laundering and defeating or obstructing the course of justice.