High Court judge David Munsu earlier last week dismissed an application by one of the alleged key figures in the Fishrot fishing quotas’ fraud and corruption case, Tamson ‘Fitty’ Hatuikulipi, to appeal his third bail failure in the Supreme Court.

Hatuikulipi lodged the application for leave to appeal after Judge Munsu shot down his application to be released on bail in December last year.

Judge Munsu stated that in an application for leave to appeal, the court must decide whether there exist reasonable prospects of success on appeal. This, he said, means the court must be satisfied that, on the facts or the conclusions of law involved, the court of appeal may take a different view and come to a different conclusion. 

“The mere fact that a case is arguable on appeal is insufficient, as there must be substance in the argument advanced on behalf of the applicant,” the judge stressed. 

He further said the court must clear its mind and avoid letting the earlier decision on the subject cloud its judgement. In this matter, the judge stated the purported new, facts the applicant presented are not new and are just rehashed emails that did not impact the reasons why bail was initially refused, and said the State’s prima facie case remained intact. 

The judge further said the applicant did not manage to explain away evidence that implicated him in the matter. In essence, Judge Munsu added, bail was originally refused by the magistrate in view of the seriousness of the charges, as he found it would not be in the interest of the public or the administration of justice to grant the applicant bail. Judge Munsu further stated that Hatuikulipi’s attempts to demonstrate that the State has no prima facie case against him failed miserably, as the court found that the State indeed has a strong case against him. 

He went on to say the period the applicant has spent in pre-trial incarceration does not automatically entitle him to be granted bail, as there are other considerations to make. One of these, he said, is the fact that the applicant and his co-accused have delayed the start of the trial. According to the judge, the applicant appears to approbate and reprobate on this issue. “He argued that he has been ready to start the trial, while at the same time stating that the issue of legal representation has caused the delay,” the judge said, and continued: “He conceded that he was still without funds to appoint counsel, and also that he was not ready for trial because his defence team had not been ready. 

Ironically, the judge stated, the applicant uses the very same situation he creates to apply for bail, which undermines the legitimacy of his case. While he would prefer the applicant to be able to ventilate all his concerns up to the highest court in the land, this court is, however, bound by the law in making its decision.

He said the court must be satisfied that an appeal enjoys prospects of success, but in this case, he was unable to find any, and finds himself constrained and without any legal basis to grant leave to appeal.

Hatuikulipi, together with his cousin James Hatuikulipi, the former Fishcor board chairperson; his father-in-law and former minister of fisheries Bernhard Esau; Ricardo Gustavo; former justice minister Sackey Shanghala; former Fishcor CEO Mike Nghipunya; Pius Mwatelulo; Otneel Shuudifonya; Phillipus Mwapopi and Nigel van Wyk, are facing more than 40 counts comprising racketeering, contravening the Anti-Corruption Act, conspiracy, corruptly using an office to receive gratification, fraud, theft and money-laundering, as well as defeating or obstructing the course of justice. 

The State alleges that they corruptly received payments of around N$103 million to give a competitive advantage to Icelandic fishing company Samherji to secure access to horse mackerel quotas in Namibia.

The State alleges that all the accused acted with a common purpose. Also, on the list of people added to the charges is lawyer Marén de Klerk.

The State is yet to extradite De Klerk from South Africa, as well as Icelandic nationals Ingvar Júlíusson, Egill Helgi Árnason and Aðalsteinn Helgason.

– rrouth@nepc.com.na