Trevor Brockerhoff, the lawyer of Fishrot accused Ricardo Gustavo, on Wednesday informed Windhoek High Court Acting Judge Kobus Miller that they are still waiting on the outcome of their petition to appeal his decision not to recuse himself from the trial for perceived bias.
Judge Miller refused to grant them leave to appeal his decision, and Brockerhoff then indicated that he will petition Chief Justice Peter Shivute. Brockerhoff said he indeed lodged the petition with the Chief Justice, and is still awaiting a reply.
The judge then remanded the matter to 1 December for a decision.
During his ruling on the application, Judge Miller said that after careful consideration of the arguments presented for and against the application, he came to the conclusion that another court will not come to a different conclusion.
Brockerhoff lodged the application on the basis of perceived bias against his client following damaging remarks the judge made in a bail appeal ruling in 2021.
According to Brockerhoff, the learned judge in his own words stated that 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 acting judge Miller already read into the evidence on a factual basis, where a learned magistrate did not make such a factual finding as a court of first instance.
Brockerhoff further argued that it is established law that a court of appeal is bound by the factual findings of the court of first instance, and cannot merely interfere or make alternate findings without any basis.
This, he said, was exactly what acting Judge Miller did in the bail appeal which he presided over, and clearly shows a predetermination or at least a potential for bias against his client.
He went on to say that acting Judge Miller continued in the same vein by pronouncing “more pointedly, the evidence establishes 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”.
Gustavo, former minister of fisheries Bernhard Esau, 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 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. Gustavo is the only one who is on bail, but is facing an appeal by the State to the Supreme Court on his release on bail. The appeal will be heard on 14 November.