The four unrepresented Fishrot accused currently facing corruption charges on Friday informed acting Windhoek High Court Judge Moses Chinhengo that they are unable to plead to the charges.

Former attorney general and justice minister and now Fishrot accused Sakeus Shanghala, his business partner James Hatuikulipi, his nephew Pius Mwatelulo and former fisheries minister Bernardt Esau all indicated that they are unable to plead because of a lack of legal representation. 

They also told the judge that they reserve their rights under Article 12 of the Namibian Constitution, being the right to legal representation and a fair trial.

Esau, who is represented by Florian Beukes, said in the absence of his legal eagle, he is unable to plead.  Beukes is currently unwell and on sick leave, but Judge Chinhengo refused to budge when Esau applied for a postponement until his lawyer was well and able to resume his duties.  Similarly, the judge refused to entertain an application by Shanghala on his, Hatuikulipi and Mwatelulo’s behalf to remand the matter to allow them to gather funds to pay their erstwhile legal counsel, Murorua Kurz Kasper Inc, or to find alternative counsel. 

Their co-accused, Tamson Hatuikulipi, Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi, all pleaded not guilty to the charges so far read out to them. 

Their lawyers, Milton Engelbrecht and Mbanga Siyomunji, told the judge the pleas are in accordance with their instructions, and that their clients will remain silent and put the onus on the state to prove every allegation against them. With regards to Nigel van Wyk, however, Siyomunji submitted that his client has a pending review application on the corruption charges he faces, and he is thus unable to plead on those charges. 

Judge Chinhengo, however, declined to entertain any of the “unable” pleas of the accused, and entered not guilty pleas on their behalf. The accused all indicated that those are not their pleas, but that of the judge, and they do not accept it. Shanghala also wanted to have his application for a special review heard, but Chinhengo again put a spanner in the works by refusing to hear the motion. 

The judge was adamant that the taking of the pleas must first be completed before interlocutory applications will be heard. Esau then informed the court that he will bring a recusal application against the judge in due course.  Siyomunji, on the other hand, did not waste any time and drafted his recusal application on behalf of Van Wyk during the lunch break. He informed the judge that it would be filed by today. 

This could mean that the trial will have to be put on hold until the recusal application is heard. But, with Judge Chinhengo, it is not certain this will happen, given his insistence that the pleas must be completed before any applications will be heard.

The matter will continue tomorrow, and the accused remain in custody.     

The accused, who also include Ricardo Gustavo, are charged with corruptly receiving payments of at least N$300 million to give a competitive advantage to Icelandic fishing company Samherji in securing access to horse mackerel quotas in Namibia. 

SA Fishrot lawyers

Meanwhile, three Judges of Appeal last week dismissed an appeal by two South African advocates convicted and sentenced for working in Namibia without permits.

The advocates, Mike Hellens and Dawie Joubert, were in Namibia to appear on behalf of the Fishrot accused in the original bail application. They were apprehended by customs officials while busy preparing for that bail application. They were charged with working in Namibia without a work permit, and convicted and sentenced to pay a fine of N$10 000, or 18 months in jail. 

They paid the fine, and afterwards instituted an appeal against both the conviction and sentence in the High Court. Windhoek High Court judges Kobus Miller and Dinnah Usiku, however, dismissed their appeal. They then approached the Supreme Court.  In their appeal, the advocates claim they were granted permission by the Chief Justice to appear in a Namibian Court in terms of a section 85(2) certificate which permits them.  They, however, did not disclose this fact to the magistrate, who convicted and sentenced them. They now claim that if they had disclosed that fact and pleaded not guilty to the charge of working in Namibia without a permit, they faced the risk of spending the weekend in custody awaiting trial.

The High Court in its ruling found that the magistrate did not err when he convicted the duo on their admission, and without the pre-knowledge they had a section 85 permission from the Chief Justice.

The Supreme Court agreed with these sentiments. Deputy Chief Justice Petrus Damaseb, who wrote the judgement with agreement  from Acting Judges of Appeal Hosea Angula and Shafimana Ueitele, found that the High Court was correct in dismissing the appeal and finding that the magistrate did not err in any way.  They found that since an appeal is confined to the record of what occurred in the first instance court (the magistrate’s court), it must be demonstrated that the magistrate, with knowledge of the true facts, improperly entered guilty pleas. 

Judge Damaseb stated: “As the High Court correctly recorded and is common cause, the two appellant’s 85(2) certificates were not disclosed to the magistrate, and it therefore forms no part of the record in the appeal, both in the High Court and Supreme Court”.

He further said that it was not open to the magistrate to take judicial notice that a non-resident legal practitioner (such as the appellant) who wishes to practice in a particular case in Namibia has been issued with a s 85(2) certificate. That fact, he said, must either be apparent to the magistrate from the common facts, or the person who relies on the certificate as a defence must prove it. In the end, the Supreme Court said, it was not proven by any stretch that the magistrate was wrong in its decision to convict and sentence the appellants, and dismissed the appeal. 

Hellens and Joubert were represented by Advocate Raymond Heathcote, assisted by Yvette Campbell and instructed by Koep and Partners. The state was represented by Advocate Norman Arendse SC, assisted by Advocates Slysken Makando and Cliff Lutibezi, on instructions of the Government Attorney.   - rrouth@nepc.com.na