Three Supreme Court judges yesterday heard an appeal against the decision of the Windhoek High Court to refuse to grant six of the Fishrot accused bail.

Former justice minister Sackey Shanghala, former chair of the National Fishing Corporation of Namibia (Fishcor) James Hatuikulipi, his cousin Pius Mwatelulo, former Fishcor CEO Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi lodged the application in November 2021.

After the judgement, the six men applied for leave to appeal the judgement in the Supreme Court which Judge Uietele granted.

Senior advocate Vas Soni who represented Shanghala, Hatuikulipi and Mwatulelo on instructions of Murorua, Kurtz, Kasper Inc, argued that the judgement of Uietele constitutes an irregularity as the judgement he delivered in person and the one he uploaded to the e-justice system differ largely.

 According to him, the differences are so vast that it essentially renders the second judgement a nullity. Furthermore, he said, the possibility remains, that during the criminal trial, some of the charges may be squashed as they were not procedurally investigated. This he maintained, would decrease the number of charges his clients face and would, therefore, decrease the seriousness of the charges. 

In any event, he said, the judge said that the accused satisfied the court that they will not abscond or interfere with witnesses and found that it is only the interest of the public and the administration of justice that stopped him from granting bail. This approach, Soni argued, was wrong and constituted an irregularity. 

According to him, there was no analysis and no weighing up the evidence, yet the judge decided to deprive the applicants of liberty. He submitted that the decision of Ueitele must be set aside and the accused released on bail. Thabang Phatela, who represented Nghipunya, Shuudifonya and Mwapopi, on instruction of Milton Engelbrecht, argued that the judge based his decision, not to grant bail, on the conclusion that the accused still had money – US$4 million – in a bank account in Dubai, which is enticement to abscond. 

He further argued that nowhere in the judgement did Ueitele mention that any of his clients had anything to do with that money. The judge erred fundamentally by associating his clients with the money in Dubai and this is enough reason for the Supreme Court to set aside the decision of Ueitele, he stated.  Furthermore, Phatela argued, the judge’s reasoning that public interest trump the rights of the accused as enshrined in the constitution – the right to a fair and speedy trial and the right to liberty is prejudicing his clients who have shown on a balance of probabilities that they will stand their trial and have not and will not interfere with witnesses. 

Furthermore, he said, the judge relied on the unsubstantiated opinion of the investigating officer which is not a proper basis to deny his clients justice. Is it not in the interests of the public to treat all alleged offenders equally and fairly? he asked. 

Judge Theo Frank, who heard the application together with Justices Jeremiah Shongwe and Kanalelo Mosito, reserved their judgement.

The six men together with former fisheries minister Bernard Esau, Ricardo Gustavo (on bail), Tamson Hatuikulipi and Nigel van Wyk 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.

It is alleged by the State that they corruptly  received payments to give a competitive advantage to Icelandic fishing company Samherji in securing access to horse mackerel quotas in Namibia. 

The State was represented by Cliff Lutibezi, assisted by Ed Marondedze.  -rrouth@nepc.com.na