In recent years, Namibia has been faced with reports and investigations into large-scale scandals that many believe have tested the country’s legal and ethical boundaries. The matters that have become widely known as Fishrot and OilRot appear to illustrate a concerning overlap between commercial dealings and what some have described as possible criminal conduct. While public resources and trust remain central to these cases, questions continue to surface about how the law is being applied, and whether justice is being delayed or deflected. 

This article explores the difference between criminal and commercial cases under Namibian law. It also considers the possibility that in matters like Fishrot and OilRot, legal definitions may be used, intentionally or otherwise, in ways that blur lines and shift focus from core accountability. The aim is to reflect on how not just the acts themselves, but the legal interpretations around them, can influence justice in Namibia. 

Offences Against the State 

Criminal cases in Namibia fall under the Criminal Procedure Act 51 of 1977. These cases are brought by the State against individuals or groups suspected of committing actions that are seen to harm society or public order. They go beyond personal or private disputes and often involve allegations such as fraud, bribery, and money laundering, offences that affect the country as a whole. 

In the matter of Prosecutor-General v Esau and Another [2025] NASC 23, Namibia’s Supreme Court appeared to treat the Fishrot-related allegations as serious criminal issues. Those implicated were high-level officials and businesspeople, reportedly involved in questionable fishing quota allocations and offshore financial flows. Whether or not the evidence is ultimately found sufficient for conviction, the charges, under the Anti- Corruption Act 8 of 2003 and the Prevention of Organised Crime Act 29 of 2004, seem to suggest the gravity of the situation. 

Criminal cases require the State to prove guilt beyond reasonable doubt, the strictest burden in the legal system, due to the heavy consequences that may follow, including imprisonment and asset forfeiture. This reflects the idea that when misconduct involves public office or resources, it is not simply a business issue, but a matter of public trust. 

Commercial Cases: Contracts and Obligations 

On the other hand, commercial cases deal with business-related disagreements. These are typically disputes between private individuals or companies, often about contracts, finances, or property. Such matters are usually heard in the Commercial Division of the High Court, under Section 2 (A) of the High Court Act 16 of 1990. 

A case such as Bank Windhoek Ltd v Trustees of Harmse Business Trust [2025] NAHCMD 351 offers a clearer example of a standard commercial dispute, concerning a loan agreement and the enforcement of a mortgage. In commercial matters, courts determine responsibility based on the “balance of probabilities”, a lighter burden of proof than in criminal law. The remedies usually involve compensation or court orders to enforce agreements, not prison sentences. 

In such cases, it is generally assumed that both parties acted in good faith and simply disagree about terms. As such, calling a matter commercial instead of criminal can significantly affect how seriously it is treated and what outcomes follow. 

A Criminal Enterprise Disguised as Business? 

One could argue that the Fishrot matter demonstrates how complex financial and business structures might be used to obscure improper conduct. Reports and court documents suggest that companies and contracts may have been employed to present payments as legitimate, even if they were not. Phrases like “consultancy fees” and “fishing rights deals” appear to have masked what prosecutors argue were bribes and unlawful benefits. 

This type of setup, if proven true, might amount to what some legal scholars call corporate disguise, the use of formal business transactions to cloak illegality. In S v Shikongo 2013 (1) NR 1 (SC), Namibia’s Supreme Court observed that white-collar crime, while less visible than street crime, can be more damaging in the long term because of its impact on governance and rule of law. 

Had the courts accepted the defence argument that these were failed commercial dealings, it is possible the cases might have been heard as civil matters. But from the court’s approach so far, there seems to be recognition that the legal appearance of a deal cannot erase criminal intention if one exists. 

OilRot: Another Grey Zone? 

The OilRot matter, connected to the National Petroleum Corporation of Namibia (NAMCOR), is another ongoing case that has sparked debate. Defence lawyers have reportedly argued that the matter is a commercial dispute, possibly involving misunderstandings over contracts, asset transfers, and payment timelines. However, leaked information and internal reports circulating in the media have hinted at more serious issues—such as possible fake invoices and complex arrangements involving front companies. 

In Public Prosecutor v Phiri and Others [2019] NAHCMD 124, the High Court found that even civil-looking matters may become criminal where the facts reveal deliberate fraud. Whether that principle applies in OilRot remains to be seen, but it raises the question: at what point does a business mistake cross over into criminal deception? Some observers suggest that attempts to frame such matters as “commercial” may be tactical, possibly to lower public scrutiny, avoid harsher legal consequences, or buy time. If true, it would indicate a concerning use of legal language to shift public perception. 

Why These Distinctions Matter 

Whether a case is treated as criminal or commercial has major consequences. In a criminal matter, the public is the victim, and the aim is punishment. In a commercial case, both sides are treated as equal parties with a broken agreement. 

When serious matters, particularly those involving public funds, are labelled as commercial, it may delay justice, protect powerful interests, and limit the possibility of real accountability. It may also frustrate ordinary citizens, who feel that the law works differently for the rich or well-connected. 

Namibia stands at an important legal moment. The Fishrot and OilRot sagas have shown not only the alleged wrongdoing of individuals but also how legal arguments can shape outcomes in powerful ways. As citizens, lawyers, students, and leaders, we must remain alert to how the law is being used, not just in the courtroom, but in public debate. 

More than convictions, what Namibia may need is a justice system that treats similar conduct similarly, no matter who is involved. The distinction between a business dispute and a criminal offence is not just legal theory. It is the difference between accountability and impunity. 

As Chief Justice Peter Shivute once noted: 

“Justice must not only be done, but must be seen to be done, especially when it comes to crimes committed in high places.” 

*Brian Ngutjinazo is a final-year law student passionate about justice, transparency, and constitutional accountability. He writes in his personal capacity.