An attempt by former Cabinet ministers Bernhardt Esau, Sacky Shanghala and four others implicated in the Fishrot scandal to get their warrants of arrest declared unlawful and subsequently be released from police custody was dismissed by the High Court last week.
“The applicants failed to make out a case for the review and setting aside, alternatively declaring unlawful and nullifying the issuing of the warrants for arrest and the decision to apply for the warrants,” said High Court Judge Herman Oosthuizen.

In December 2019, former fisheries minister Esau and ex-justice minister Sacky Shanghala and their co-accused James Hatuikulipi, Ricardo Gustavo, Tamson ‘Fitty’ Hatuikulipi and Pius Mwatelulo filed an application in Windhoek High Court on an urgent basis challenging the legality surrounding their arrest on 26 November 2019 and continued detention. 

The group sought court orders that would set aside the warrants of arrests, the decision to prosecute them. The group further sought an order that will have them released from police custody with immediate effect. However, Judge Kobus Miller ruled that the applicant’s application to be released on an urgent basis did not satisfy the elements of urgency.  
The group then appealed to the Supreme Court, but withdrew the appeal, opting for an expedited hearing on the merits of their application by the High Court.

The matter was then set down for a hearing in February before Oosthuizen. In his ruling, Oosthuizen said the Windhoek magistrate followed and applied the clear provisions of Section 43(1) of the Criminal Procedure Act in issuing the warrants of arrests.
 “The case which applicants intended to make out for the relief that the Magistrate should not have issued the warrants for their arrests and for the setting aside thereof, was mainly based on the alleged non-disclosures by the third respondent,” explained Oosthuizen.
Dismissing the application, judge Oosthuizen gave an order that the applicants should pay the respondents costs inclusive of one instructing and three instructed counsel.

Esau and his co-accused were arrested following reports that an Icelandic fishing company Samherji reportedly secured access to horse mackerel quotas in Namibia by paying bribes of around N$150 million to politicians and businessmen between 2012 and 2018, according to the Fishrot Files of WikiLeaks.

Consequently, the prosecution is charging Esau and his co-accused with counts ranging from corruptly using office, fraud, money laundering and tax evasion.
The group remain detained at Windhoek Correctional Facility. 
– mamakali@nepc.com.na