Nigel van Wyk, a minnow in the Fishrot scandal, yesterday informed Windhoek High Court Acting Judge Kobus Miller, through his legal aid instructed lawyer Jermaine Muchali, that he intends to bring an application that a foreign judge should adjudicate the Fishrot trial.
This was said during a scheduled pre-trial conference on the status of the trial.
Muchali said he has instructions from Van Wyk to bring the application, as he perceives that a Namibian judge would not be able to bring an unbiased mind to the proceedings.
Judge Miller is yet to express himself on an application for leave to appeal to the Supreme Court, his decision not to recuse himself from the trial, for perceived bias, brought by Ricardo Gustavo and former minister of fisheries Bernard Esau. The judge dismissed the application, saying that he made the contentious remarks on evidence produced in the magistrate’s court and that the applicants failed to prove on a preponderance of reason that he will not be impartial. He said he is satisfied that the applicant did not discharge the onus of proof.
He indicated that he will give his ruling on the leave to appeal application on 29 July.
In the meantime, since the ruling is pending, the matter was postponed to 21 September for another status hearing.
The lawyers for the 10 accused and their entities argued that no definite decisions on the way forward can be made until the judge pronounces himself on the application, and a possible petition to the Supreme Court, should the application be dismissed.
During submissions on the appeal application, Gustavo’s lawyer Trevor Brockerhoff argued that a different court, if placed with the same facts, would arrive at a different conclusion.
He said Miller’s remarks in a bail appeal ruling of 2021 are damaging and give a perception of bias against Gustavo.
In the said ruling, Miller noted, “more pointedly, the evidence establish 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.”
Brockerhoff argued these remarks indicate the judge already made out that the prosecution has a prima facie case, where the trial has yet to commence and it shows a pre-determination as well as bias in favour of the State.
Thus, they believe that the Supreme Court may give a different outcome.
Gustavo and Esau together with former minister of justice Sacky Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Pius Mwatelulo, 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, and defeating or obstructing the course of justice. According to the State, more than N$317 million was misappropriated and divided between the accused. 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.
-rrouth@nepc.com.na