Fishrot accused Ricardo Gustavo is fighting tooth and nail to have High Court Acting Judge Kobus Miller recuse himself from his trial, fearing he won’t be impartial.
Gustavo is seeking leave from the High Court so he may approach the Supreme Court after Miller refused to step away from the case in May. At the time, Miller said the remarks he made in his appeal judgement were entirely based on evidence presented when Gustavo applied for bail in the Windhoek Magistrate’s Court.
During submissions yesterday, Gustavo’s lawyer Trevor Brokerhoff argued that a different court, if placed with the same facts, would arrive at a different conclusion.
He said Miller’s remarks in a bail appeal ruling of 2021 are damaging and give a perception of bias against Gustavo.
In the said ruling, Miller noted, “more pointedly, the evidence establish that the appellant purported to be a director of an entity called Namgomar Pesca (Pty) Ltd, and made misrepresentations as to the fact such entity in fact existed, which entitled it to receive fishing quotas. The prima facie case is that these misrepresentations were an important part in the greater scheme allegedly hatched by the appellant and his co-accused.”
Brokerhoff argued these remarks indicate the judge already made out that the prosecution has a prima facie case, where the trial has yet to commence and it shows a pre-determination as well as bias in favour of the State.
Thus, they believe that the Supreme Court may give a different outcome.
The State, represented by Ed Marondedze, has asked the court to dismiss the application, citing that Gustavo has failed to demonstrate how the court misdirected itself when it dismissed the recusal application.
Miller is expected to preside over the trial in the case in which Gustavo is to be tried alongside former minister of justice Sacky Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Pius Mwatelulo, Nigel van Wyk, Otneel Shuudifonya and Phillipus Mwapopi.
The group is 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.
For this case, the group will be in court today for appearance.
Miller is expected to give a ruling on the leave to appeal application on 29 July.
Gustavo’s bail was extended.