“The argument that suspects in white-collar crimes should be granted bail is the reason the public has lost trust in the justice system.” These were the words of magistrate Duard Kesslau yesterday while handing down judgement in the Windhoek Magistrate’s Court when he denied bail to former fisheries minister Bernhardt Esau and his son-in-law Tamson ‘Fitty’ Hatuikulipi, who have been in police custody for nearly eight months.
Kesslau ruled that despite the State’s failure to prove they pose a flight risk and will interfere with ongoing investigations, they managed to prove beyond reasonable doubt that there is a strong case against Esau and Tamson.
The State also managed to prove there is public interest and the court could not ignore the obvious family link between the accused.
“It is evident that there was squandering of public resources, which the court cannot ignore. This is part of the public’s interest,” explained Kesslau.
Esau and Tamson brought their bail application by way of affidavit, a way that was frowned upon by the court with judicial contempt. Kesslau said the two robbed the court of the chance to observe their demeanour and court was left in the dark, as many questions went unanswered. “The use of an affidavit should not have been used in this case. It has left court hanging in the balance, as there are so many unanswered questions,” said Kesslau.
The court wanted answers to questions such as why there was a flow of money from entities to entities, why entities kept on being renamed and why the address of Nengomar was the same as that of Esau.
The court is also not ascertained as to who introduced Tamson to Fishrot whistleblower Jóhannes Stefánsson, questioning where over N$60 000 paid to the City of Windhoek in June came from since Esau had said his family had no money due to his incarceration.
Esau’s farm account was also scrutinised, with the court questioning why there were no transactions relating to production or maintenance. “The court, in this regard, is left to assume that all payments were made in cash,” said Kesslau. Tamson’s wealth of more than N$40 million was questioned as well. “It appears that all properties owned by applicant two (Tamson) were only acquired after he married applicant one’s (Esau) daughter,” noted Kesslau.
The court questioned the transfer of N$25 million from Tamson to his cousin James Hatuikulipi for alleged repayment of loans. This amount, according to the court, exceeds the amount loaned to Tamson. James admitted to having loaned N$3 million to Tamson.
Another payment that the court felt it was left in the dark about is the N$76 million that Samherji paid to Tamson, as well as N$5 million in repayment of loans from the De Klerk, Horn & Coetzee law firm’s account to Kambandara Trust account.
“It is highly unlikely that Jóhannes Stefánsson, in his drunken state of mind, would orchestrate to frame the applicants (Esau and Tamson). Applicant one (Esau) was the one who initiated the changes to the law and allocated the quotas. The court is convinced in all probabilities, money paid was for the part they played,” explained Kesslau.