Windhoek High Court acting Judge Kobus Miller yesterday dismissed an application brought by Fishrot accused Ricardo Gustavo to recuse himself from the trial for perceived bias.

Former minister of fisheries Bernhard Esau also brought an application but abandoned it later.

Trevor Brockerhoff, the lawyer  of Gustavo, lodged the application based on perceived bias against his client, following damaging remarks he made in the bail appeal ruling in 2021.

According to Brockerhoff, the learned judge, in his own words stated: “The learned magistrate did not make a finding in so many words that a prima facie case is made out. A reading of the evidence of Mr Cloete, however, establishes a prima facie case against the appellant”. 

He said this surely proves that judge Miller already read into the evidence on a factual basis, whereas a learned magistrate did not make such a factual finding as a court of the first instance.

According to Brockerhoff, it is established law that a court of appeal is bound by the factual findings of the court of the first instance, and cannot merely interfere or make alternate findings without any basis. 

This, he said, was exactly what Judge Miller did in the bail appeal, which he resided over and clearly shows a predetermination or at least a potential for bias against his client. 

He went on to say judge Miller continued in the same vein by pronouncing: More pointedly, the evidence establishes the appellant purported to be a director of an entity called Namgomar Pesca (Pty) Ltd, and made misrepresentations as to the fact that such entity existed, which entitled it to receive fishing quotas. 

The prima facie case is that these misrepresentations were an important part of the greater scheme allegedly hatched by the appellant and his co-accused.

“This clearly shows various adverse factual findings; however, this was done where, firstly, the court was not the court of the first instance – and secondly, where a large portion of evidence have not been heard before this court,” Brockerhoff stated, and added that this surely is indicative of a pre-determination on the part of Judge Miller.  

He further said that when the judge already made out the State has a prima facie case, where the trial has yet to commence, it clearly shows a pre-determination as well as bias in favour of the State.

The judge said he made the remarks on evidence produced in the magistrate’s court and that the applicants failed to prove on a preponderance of reason that he will not be impartial. 

He said he is satisfied the applicant did not discharge the onus of proof.

Brockerhoff indicated to the court he will be seeking leave to appeal the ruling in the Supreme Court.

Gustavo and Esau, together with former minister of justice Sackey Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Pius Mwatelulo, 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, including 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 and Icelandic nationals Egill Helgi Arnason, Ingvar Juliusson and Helgason Adelsteinn.

- rrouth@nepc.com.na