High Court Judge Christie Liebenberg concluded yesterday the State has managed to prove former Cabinet ministers and businessmen in the fisheries bribery case, all acted with the same purpose for the benefit of their “criminal enterprise”.
Liebenberg said the illegal enterprise articulated in the Fishcor case is inseparable from the enterprise articulated within the Namgomar matter, as it was important for the planning and execution of the latter.
He further explained despite the different parts the accused played, the evidence would remain the same to prove the conspiracy between them or the individual accounts on which accused Ricardo Gustavo has been charged.
“The spoils generated from the unlawful enterprise are the proceeds of crime and must be proved in both cases. To this end, a duplication of evidence would not be in the interest of the accused person neither the interest of justice,” explained Liebenberg.
Liebenberg made these remarks yesterday before granting the State’s request to have the two criminal cases, Namgomar and Fishcor, consolidated as one.
The court ordered the State to compile one indictment and file it no later than 18 October.
During the application, deputy prosecutor general Ed Marondedze argued the prosecution would have to present testimony from the same witnesses in both matters should the cases not proceed as one.
He said it is essential for the two matters to be joined for one trial for the court to understand the gravity of the case and to get the full picture of how the alleged criminal scheme was set up.
The application was opposed by former justice minister Sacky Shanghala, James Hatuikulipi – former Fishcor board chairperson, former Fishcor CEO Mike Nghipunya, Namgomar Pesca Namibia director Gustavo, Pius Mwatelulo, Otneel Shuudifonya, Phillipus Mwapopi and Nigel van Wyk.
The group represented by Trevor Brockerhoff, Tinashe Chibwana and James Diedericks argued that the two cases are distinct and are not linked for them to be combined and tried as one. They said the joinder of the cases would infringe on their constitutional rights. They further argued should the cases be tried as one, it would result in a prolonged trial, making it impossible for them to afford continued representation since they are incarcerated.
The two matters at hand are the Namgomar case in which former fisheries minister Bernard Esau, Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Gustavo, Mwatelulo, Van Wyk, Shuudifonya and Mwapopi are charged with corruptly receiving payments of at least N$103.6 million to allow Icelandic fishing company Samherji secure access to horse mackerel quotas in Namibia.
The group, alongside 11 corporate entities and trusts connected to them, are charged with counts of racketeering, fraud, money laundering and other alleged crimes in connection to alleged fishing quota allocations and bribery.
The second case is of Fishcor in which Esau, Shanghala, Tamson, James, Mwatelulo and Nghipunya are facing charges ranging from racketeering to fraud and money laundering. 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 accused are charged with seven counts of racketeering, 12 counts of contravening the Anti-Corruption Act, four counts of fraud, alternatively theft, and four counts of money laundering.
The State is yet to extradite De Klerk from South Africa and Icelandic nationals Egill Helgi Arnason, Ingvar Juliusson and Helgason Adelsteinn.