Maria Amakali

Magistrate Duard Kesslau is scheduled to give a ruling in the bail application of former fisheries minister Bernhard Esau and his son-in-law Tamson ‘Fitty’ Hatuikulipi today in the Windhoek Magistrate’s Court. 
Esau (62) and Tamson (39) brought forth a formal bail application, hoping to convince the court to release them from custody, pending the finalisation of their case. 
During oral submissions yesterday, their lawyer Richard Metcalfe said Esau and Tamson have proven they are worthy of being released on bail. Metcalfe submitted that Esau had an opportunity to evade the hands of justice between the period of his first arrest on 23 November 2019 and second arrest on 27 November the same year. 
“During that time, he did not attempt to evade the hands of justice. He voluntarily handed himself over to the police; they did not have to hunt for him nor search for him,” said Metcalfe. 

The father of four allegedly cannot afford to flee the country, as he would not abandon his family and, particularly, his wheelchair-bound daughter. Metcalfe informed the court that Esau’s history shows he is fully dedicated and bonded to Namibia. 
He said the fear, alluded to by the State, of the applicants absconding contradicts their actions. “Despite all the fear that the State has that the applicant will escape and leave the country, if the State’s fear was real, they would not have left the passports of the accused in the hands of their families. They would have confiscated them if the fear was real,” explained Metcalfe. 
He submitted there is no evidence indicating Esau received money from the entities that are currently being investigated by the authorities. 
An Anti-Corruption Commission (ACC) financial expert could not link any of the money to Esau’s accounts, said Metcalfe. “All the money that has been deposited into the applicant’s account came from his employer and from selling his cattle. So, what do cattle have to do with fish?” questioned Metcalfe. 
It was Metcalfe’s submission that there is a desperate attempt by the State to link Esau and Tamson to the activities of James Hatuikulipi and Sacky Shanghala. James and Shanghala are also behind bars and are yet to formally apply for bail. 
Esau has put up his assets, valued at N$23 million, as collateral for his freedom – and should he abscond, the assets should be forfeited to the State. 
He has informed the court he is willing to pay N$50 000 for bail, with reporting conditions attached. 

Tamson not a ‘danger’
Meanwhile, Metcalfe argued that the father of two is not a danger to society and should be released on bail. Tamson, who has been a businessman for nearly 17 years, considers Namibia his home and has strong emotional ties to the country, the court heard. 
He allegedly has no bank accounts outside of Namibia and there is no evidence linking him to the alleged accounts being investigated by ACC. “He has no intention of fleeing the country, as he stands to lose everything. He has given his properties as collateral for bail and in the event he does not stand trial, they will be seized by the State,” said Metcalfe. 
Tamson has offered unbonded properties, valued at N$16 million, as security to be released on bail. Like his father-in-law, he has offered to pay N$50 000 for his release from police custody. Metcalfe further argued the State was having a weak case against his clients, saying they did not know when investigations would be completed. 
“The State has no strong prima facie case against the applicants. Their case is dependent on the testimonies of an alleged co-accused (Johannes Stefansson), who is not even in Namibia, and of a man (Marén de Klerk), who is currently in a psychiatric facility in South Africa,” said Metcalfe. 
It was his submission that the court has granted bail to all the accused in the fraud case of the Avid/Social Security Commission and the case of Chinese-born businessman Jack Huang, who is implicated in a N$3.5 billion tax evasion scandal.

State submissions
The State strongly opposes the release of Esau and Tamson, arguing there is a high probability they will abscond or interfere with ongoing investigations. Deputy prosecutor general Cliff Litubezi argued some of the co-accused have already attempted to tamper with ongoing investigations. Thus, the State cannot afford to have the accused released on bail, as an attempt by one will benefit all the accused in the case. 
“We cannot afford to have the accused abscond. We have to make sure that this matter is finalised. It is in the interest of justice that everyone involved is dealt with by court,” said Litubezi. 
Litubezi explained the State has proven, on the basis of probability, that it has a strong prima facie case against the accused. The State, according to Litubezi, at this stage of the bail hearing, is not required by law to prove its case against the accused beyond reasonable doubt. 
“There is no law that states that one should be released on bail because others have been released as they are quoting cases where people are accused of fraud,” argued Litubezi.
ACC is allegedly still busy with their investigations to determine where the rest of the money went. 
Litubezi informed the court that they needed to dig deeper, as the money was concealed. He said it was through investigations that they came to learn about erven at Otjiwarongo, registered in the name of Esau. The plot was allegedly bought with money meant for governmental objectives. 
“If the ACC could not have discovered this plot, it would not have been known. It makes one wonder how many plots are out there. This shows the reason why the investigations needed to go deeper, as the accused were hiding properties through close cooperation. The investigations needed to find out who owns this close cooperation. The accused did this to conceal their illegal acts,” explained Litubezi.
– mamakali@nepc.com.na