Lawyers representing prosecutor general Martha Imalwa say the law does not permit her to take the witness stand in civil proceedings.
Senior counsel Wim Trengove made the remarks yesterday in the High Court in the leave to appeal application by six Icelandic companies embroiled in the ongoing fisheries bribery case.
The companies, Esja Holding, Mermaria Seafood Namibia, Saga Seafood, Heinaste Investment, Saga Investment and Esja Investment are seeking leave to petition the Supreme Court over the High Court’s refusal to grant them the opportunity to cross-examine Imalwa in her application to have their assets declared forfeited to the State.
Trengove argued the right to call witnesses and cross-examine them is afforded only in criminal proceedings where a person is charged with an offence but is presumed innocent until proven guilty by a competent court.
(However), “…section 18 of the Prevention of Organised Crime Act (POCA) makes it clear, on the other hand, that proceedings for restraint and confiscation orders are civil proceedings and are not criminal proceedings,” said Trengove.
He said a restraint order does no more than preserving property with a view to possible confiscation proceedings following a criminal trial, and final confiscation orders are merely designed to strip convicted criminals of the benefits of their crimes and not to add to their punishment. Trengove said these processes are civil and not criminal from beginning to end.
“The applicants (Icelanders) contention, namely that they have a constitutional right to cross-examine the prosecutor general, which underpins both legs of their application, is thus wholly unfounded,” noted Trengove.
He further said the Icelandic companies do not have any legal standing to bring forth an application in Namibian courts, as they are “fugitives” from the law.
“The courts have held for nearly a century that fugitives from justice have no standing to litigate in our courts… because fugitives are not amenable to the processes of the court, they cannot invoke the court’s authority to assert their legal rights,” said Trengove.
Trengove said the Icelandic companies have made it clear their directors Ingvar Juliusson, Egill Helgi Arnason and Adelsteinn Helgason will not come to Namibia for prosecution and “will resist every effort to bring them here”; however, they want a court order for the prosecutor general to submit to their cross-examination to strengthen their case.
Trengove asked the court to dismiss the application with cost.
Senior counsel Raymond Heathcote, who is representing the Icelandic companies, said just because the Constitution guarantees a right for cross-examination only in criminal cases does not mean that such a right cannot manifest itself in civil proceedings.
He said there is no reason the principle of a fair trial, which embraces the concept of fairness, cannot be applicable in civil proceedings.
According to Heathcote, Article 12 of the Namibian Constitution creates a substantive right for the companies to be given an opportunity to cross-examine the prosecutor general and such a right cannot be withheld by discretion.
He said due to the absence of the Icelanders at the criminal trial, no confiscation order can be issued.
“Simply put, without their presence, they will not be part of any criminal trial, and they will not be convicted on any of the alleged criminal charges – and no confiscation order can be made against them pursuant to any conviction,” explained Heathcote.
He said the court wrongly interpreted Article 12 and erred when it concluded that the alleged factual disputes between the parties can be resolved on paper, and there was no need for cross-examination.
“The court cannot make an order on the basis that applicants (Icelanders) should find comfort in the assurance that if and when they will indeed one day be extradited and charged in the criminal matter – a fact which the PG could not support with any corroborative evidence beyond her mere say so – they may one day be entitled to cross-examine the prosecutor general on her mere “say so” in the founding affidavit,” said Heathcote.
He said such an argument is irrational, as Imalwa will never be a witness in the criminal trial.
Judge Orben Sibeya will deliver judgment on the matter on 22 September.