WINDHOEK – The release of former cabinet ministers Sacky Shanghala and Bernhard Esau as well as their co-accused from police custody, should not be considered urgent, as they had abandoned their formal bail application in the Windhoek Magistrate’s Court early this month.
South African senior counsel Piet van Wyk assisted by Advocate Slyksen Makando argued yesterday before High Court Judge Kobus Miller that the applicants’ application to be released on an urgent basis does not satisfy the elements of urgency.
“The applicants herein to abandon their bail application on the 2 December 2019, which is the remedy one takes in criminal proceedings in your quest for liberty, is but one of the indicative ways in which the applicants are guilty of putting on and off the ‘hat’ of urgency in the matter,” Van Wyk argued. Van Wyk and Makando are representing the respondents, including Anti-Corruption Commission director-general Paulus Noa, prosecutor-general Martha Imalwa, and Namibian police chief Sebastian Ndeitunga.
Esau and Shanghala and their co-accused – James Hatuikulipi, Ricardo Gustavo, Tamson ‘Fitty’ Hatuikulipi and Pius ‘Taxa’ Mwatelulo – filed an application in the Windhoek High Court on an urgent basis challenging the legality surrounding their arrest and continued detention.
The group seeks a court order that will set aside the warrants of arrest, the decision to prosecute them and the decision to postpone their case to 20 February 2020. The group further seeks an order that will have them released from police custody with immediate effect. The group too roped in the services of South African senior counsels in the form of William King and Tembeka Ngcukaitobi who were instructed by Gilroy Kasper. Ngcukaitobi argued the matter is urgent as Esau and his co-applicants’ freedom has been taken away through a completely invalid process and they have been detained as a consequence of an invalid warrant of arrest.
“There was absolutely no reason for the applicants to be arrested in the face of incomplete investigations as required by Section 31 of the ACC Act,” argued Ngcukaitobi.
Ngcukaitobi maintained the law requires less drastic measures to be used in ensuring that the applicants appeared in court before issuing a warrant of arrest against them.
Esau and his co-accused are charged with counts ranging from corruptly using office, to fraud and money laundering – charges which Ngcukaitobi claimed do not pose an imminent danger to society.
Esau and his co-accused were arrested following reports that an Icelandic fishing company Samherji secured access to horse mackerel quotas in Namibia by allegedly paying bribes of around N$150 million to politicians and businessmen between 2012 and 2018, according to the Fishrot Files of WikiLeaks. Judge Miller is expected to hand down judgement on 27 December.