Prosecutor General Martha Imalwa (PG)’s quest hit a snag yesterday to have the assets of the foreign directors in the Fishrot case and the companies they represent attached and restrained.

Windhoek High Court Judge Orben Sibeya dismissed an application by Imalwa in her fight to attach the assets of all the Fishrot accused.

She has already succeeded in getting a restraint order against the assets of the Namibian accused including cars, flats, erven, farms and cash forfeited to the State. Sibeya granted an interim property preservation order, covering an array of assets linked to the six accused, as well as to companies and close corporations connected to them.

A property preservation order is normally the first order given in legal proceedings, in which the prosecutor general later asks the court to order the forfeiture of assets linked to a crime.

Accused in the matter

The parties in the restraint application by the PG are former fisheries minister Bernard Esau, former justice minister Sacky Shanghala, former managing director of Investec Asset Management James Hatuikulipi, Ricardo Gustavo, Tamson Hatuikulipi and his wife Ndapandula Hatuikulipi, as well as her mother Suama Esau. 

The six Icelandic companies, whose directors are Ingvar Juliusson, Adalsteinn Helgason and Egil Arnason, are also listed in the application and are Esja Holdings; Mermaria Seafood; Saga Seafood Namibia; Heinaste Investment; Saga Investment and Esja Investment.

Judgement

In the latest development, Judge Sibeya said restraint orders are intended to preserve assets for future possible confiscation proceedings. In this instance, the mere fact that close to five years have lapsed without the PG instituting extradition proceedings against the foreign directors, does not paint a positive portrait that the foreign defendants will be charged.

 “Further, the fact that Interpol still has to locate the whereabouts of the foreign directors who should be extradited in order to charge the foreign defendants reveals that it is uncertain when the foreign defendants will be located and extradited, and when the foreign defendants will be charged. It cannot, therefore, be said that the foreign directors are to be charged,” the judge remarked. 

He said the PG failed to satisfy the court that the foreign directors are to be charged. Therefore, it becomes unnecessary to determine the question of whether there are reasonable grounds that a confiscation order may be made against the foreign defendants. 

Sibeya said it thus follows that the application must be dismissed.     

The judge ordered the PG to pay the costs of the respondents on the scale of one instructing and two instructed counsel.

Extradition

Judge Sibeya stressed that the founding papers and supplementary papers of the PG reveal that she intends to first extradite the foreign defendants on charges including corruption and tax offences, and then arraign them on those charges. 

Furthermore, it appears that in order to apply for the extradition, she first intends to ensure the investigations are completed. “It would be unfair, in my view, to allow the PG to change tack only in her replying papers and bring the reliance on sections of the POCA Act, when it is miles apart from her pleaded case to which the defendants already answered,” the judge stated.

 He continued that cases must be decided on pleaded papers, and in this case, he declined to consider the issues raised in her replying papers in “her determined quest to prove entitlement to a restraint order” in this matter. In the end, the judge said, the foreign defendants are not charged yet, but the PG seeks a restraint order against them on the premise that they are to be charged, and that there is reason to believe that a confiscation may be made against them.

Background

In an affidavit, Imalwa alleges that Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Esau and Gustavo corruptly solicited and accepted or agreed to accept payments of not less than N$115 million from Samherji in Namibia as a reward for securing fishing quotas for the Icelandic fishing group – and in addition, received known payments of N$54.6 million outside Namibia.

The N$54.6 million, which Imalwa said was paid into a bank account of a company of James Hatuikulipi, Tundavala Invest in Dubai, is regarded as payments that are meant to be shared among the participants in the scheme, she states in her affidavit.

Evidence

The Anti-Corruption Commission (ACC) has gathered evidence which will prove that the accused and corporate entities used by them committed corruption, fraud, tax evasion, money-laundering and racketeering offences in terms of the Prevention of Organised Crime Act, Imalwa also stated. 

Advocate Raymond Heathcote represented the Icelanders, instructed by Yvette Campbell and by Joos Agenbach Attorneys; and the PG by senior counsel Wim Trengove, assisted by Advocate Karla Saller and Dr Sackey Akweenda, instructed by the Government Attorney.

-rrouth@nepc.com.na