An attempt by three of the alleged Fishrot kingpins to get High Court Acting Judge Jacobus Miller removed as presiding officer in the upcoming trial fell flat on Friday.

In a ruling, Judge Boas Usiku said the nature of James Hatuikulipi, Sacky Shanghala and Pius Mwatelulo’s application requires Miller and Judge President Petrus Damaseb to be summoned which is against the law. 

In his application, Hatuikulipi, Shanghala and Mwatelulo wanted to be allowed to bring forth an application challenging the appointment of Miller as acting judge of the High Court. 

According to the trio, Miller’s re-appointment as acting judge on 26 January is unconstitutional as the law precludes the judge president from appointing a person older than 70 years as acting judge. Miller is 75, and therefore, the appointment must be set aside, the group argued.

Usiku said the application for consent is by nature an ex parte application, which does not require any person to appear before the court, thus not violating section 21 of the High Court Act – which is not what the group filed.

“In my view, the present application violates the provisions of section 21(1) read with Section 1 of the Act, in that it requires the appearance before court of the two respondents, to resist, if they so wish, the grant of the relief sought, in the absence of the consent contemplated under section 21(1). The application is therefore improperly before this court and as a result, stands to be struck from the roll,” said Usiku.

Hatuikulipi and his co-accused first attempt to get Miller to recuse himself from hearing the matter was dismissed earlier this year. In that application, the group cited possible bias as a reason for not wanting Miller in their upcoming trial which is scheduled to start in October. This application was also dismissed.

Miller was appointed in 2022 to preside over the much-anticipated trial. 

Hatuikulipi, Shanghala, and Mwatelulo alongside co-accused; Ricardo Gustavo, Bernhardt Esau, Tamson Hatuikulipi, Mike Nghipunya, 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