Prosecutor general Martha Imalwa yesterday applied to Windhoek High Court Judge Orben Sibeya for a postponement in her forfeiture application against the Fishrot accused and their business entities to obtain authorisation from Cabinet for the upkeep of the properties.
State advocate Mariette Boonzaaier, on behalf of the PG, informed the judge that they need time to consult the minister of justice who, in turn, must consult Cabinet to find funds to care for the provisionally seized properties of the Fishrot accused.
In case the minister succeeds in finding funds, the PG must then approach the judge to amend the restraint order.
The amendment will allow the PG to care for the properties and, as the accused persons currently do not have any means to care for the properties themselves, the Prevention of Organised Crime Act (Poca) 29 of 2004 makes provision for the State to forward such funds, pending the finalisation of the trial.
In the event that the State succeeds in getting a conviction and confiscation order at the end of a trial, the assets will be disposed of and the funds paid back.
However, should the State fail to convict, the funds will be lost. As there is currently a dispute between the PG’s office and the curators, Bruni and McLaren, the PG is responsible for the preservation of the properties in question.
The assets include bank and investment accounts, interests in companies and close corporations, immovable properties, nearly 60 motor vehicles, firearms, jewellery and several luxury watches.
Assets of Esau’s wife Swamma Esau and his daughter Ndapandula Hatuikulipi, who is married to Tamson Hatuikulipi, are also affected by the restraint order.
The order prohibits the accused and any other person with knowledge of the order from dealing in any manner with the realisable property.
In his judgment granting the restraint order, the judge said the PG’s application, based on the evidence contained in the affidavits and annexures filed in support thereto, proved that a prosecution was instituted and is pending against the defendants – that there are reasonable grounds for believing a confiscation order may be granted against the defendants.
Former Minister of Justice Sacky Shanghala, James Hatuikulipi and Pius Mwatelulo have in the meantime instituted an appeal in the Supreme Court against the decision of Sibeya.
In their criminal trial, Shanghala, Hatuikulipi and Mwatelulo alongside Ricardo Gustavo, former fisheries minister Bernardt Esau, Tamson Hatuikulipi, Nigel 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, 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.
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, as well as Icelandic nationals Egill Helgi Arnason, Ingvar Juliusson and Helgason Adelsteinn.
Present yesterday was senior advocate Vas Soni SC from South Africa, instructed by Murorua Kurtz Kasper Inc.
– rrouth@nepc.com.na