Some of the key figures in what is now commonly known as the Fishrot bribery case have taken their fight to the Supreme Court as they contest the prosecutor general’s seizure of their multi-million-dollar assets.

On Friday, James Hatuikulipi, Sacky Shanghala and Pius Mwatelulo filed their notice of appeal in the Supreme Court against High Court judge Orben Sibeya’s 19 May judgement.

In the judgement, Sibeya said the law does not restrict the prosecutor general’s powers to institute proceedings based on the Prevention of Organised Crime Act (POCA) investigation conducted by the police. He said Section 83 of POCA authorises the police to investigate offences under POCA.

“In my view, the PG does not require the permission or consent of the inspector general in order to bring an application under chapters five or six of POCA,” said Sibeya.

In this application, the group contended the PG’s restraint application was based on evidence obtained by the Anti-Corruption Commission of Namibia’s investigators - who are not authorised members of the police as required by law. Thus, her application is null and void.

In their appeal, the trio is claiming Sibeya erred in his ruling when he allowed the PG to rely on an investigation by the ACC to enable her to institute a restraint application against them.

This they said is because the law stipulates only investigations carried out by authorised police officers can be used by the PG for the purpose of instituting a restraint application.

“However wide its powers in respect of investigating corruption, the ACC is not authorised to conduct an investigation for the purpose of enabling the PG to institute a restraint application, which on the facts is what the ACC did in this case,” said the group in their notice.

The group alongside fellow accused persons; Ricardo Gustavo, Bernhardt Esau, Tamson Hatuikulipi, and various companies they own are subject to a restrained order. 

The restraint order has been made final after the High Court concluded that there is pending prosecution against the group and there is a reasonable belief that “a confiscation order may be made against them”. 

The group alongside Nigel van Wyk, Otneel Shuudifonya, Phillipus Mwapopi, Mareen de Klerk and Icelandic executives; Ingvar Júlíusson, Egill Helgi Árnason, and Adalsteinn Helgason, are awaiting trial.

The group is expected to stand trial on charges ranging from theft to racketeering, fraud, bribery, corruptly using the office for gratification, accepting gratification, money laundering, tax evasion, and conspiring to commit corruption.

The prosecution is alleging that the Samherji directors corruptly paid at least N$103.6 million in bribes to Esau and his co-accused so they can get a competitive advantage in securing horse mackerel quotas in Namibia.

This allegedly took place between 2014 and 2019.

-mamakali@nepc.com.na