High Court Acting Judge Moses Chinhengo indicated on Friday that he will rule on the recusal application by Fishrot minnow Nigel van Wyk on 12 March.
This was after he heard oral arguments from State Advocate Ed Marondedze, who is opposing the application. Mbanga Siyomunji, who brought the application on behalf of Van Wyk, was not present in court, and Enos Mwakondange stood in for him. Mwakondange told the judge that his instructions from Siyomunji were that he stands by his written heads of argument. The judge, however, wanted to know if Mwakondange could give any insight into the heads, and the latter had to acknowledge that he was only given the instructions the day before, and did not study the matter. Judge Chinhengo was not impressed, neither was Marondedze, who cited an example of a similar case where Siyomunji was involved, and where the presiding judge proposed sanctions.
Van Wyk brought the application on the presumption that Judge Chinhengo is biased, and that he fears that he will not receive a fair trial. He based his presumptions on the fact that the judge pressed the unrepresented accused persons to plead, despite their remonstrations.
While he is not currently supporting the application, former attorney general and justice minister Sakeus Shanghala had an issue with the fact that he was not informed of the State’s intention to oppose the application. According to Shanghala, had he known beforehand of the State’s opposition, he could have, if he wanted to, supported the application.
He further questioned Judge Chinhengo’s continued presence as the presiding officer, because he claims the judge’s appointment lapsed in December 2023. Shanghala also informed the court that he wrote to new President Nangolo Mbumba about the irregularity of Chinhengo’s continued presence as the presiding officer, despite not being re-appointed after his term expired. Marondedze was not amused, and said as the former chairperson of the Law Reform Commission, attorney general and justice minister, Shanghala should know that once an acting judge is appointed, he is mandated to finish cases he is involved in. Shanghala retorted that it does not apply to foreign judges, who must be re-appointed once their terms expire.
Shanghala further said Marondedze should not bring his “Matabeleland” justice to Namibian courts, but should stick to Namibian laws.
None of the other accused are opposing or supporting the application.
Van Wyk, Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Ricardo Gustavo, Bernard Esau, Mike Nghipunya, Otneel Shuudifonya, Phillipus Mwapopi and Pius Mwatelulo are charged with corruptly receiving payments of at least N$300 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 comprising 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, as well as Icelandic nationals Egill Helgi Arnason, Ingvar Juliusson and Helgason Adelsteinn.