Windhoek High Court Judge Orben Sibeya on Wednesday confirmed the restraint order against the assets of the Fishrot accused and their business entities.
The order prohibits the accused and any other person with knowledge of the order from dealing in any manner with the realisable property.
This includes several bank accounts; property, including erven and flats, and luxury motor vehicles. The judge granted the prosecutor general an ex parte provisional order on 13 November 2020 and issued a rule nisi, calling on the defendants to show cause why the order should not be made final.
They answered that the PG’s decision to apply for a restraint order was flawed, as she made use of incorrect procedures to obtain the order.
They argued the investigation she relied on was not carried out by an authorised member of the police.
According to them, the PG failed to comply with section 83 of POCA, making her application null and void.
They argued that section 83 makes specific reference that the inspector general (IG) must authorise someone to carry out an investigation into POCA-related crimes and that the ACC is not eligible to carry out such investigations without the authorisation of the IG.
This was not done in this instance, the lawyers for the Fishrot accused argued.
However, the PG countered that she is not restricted to only approaching the court for purposes of an application for a restraint order based on the authority carried out under the authority of Section 83 of POCA.
The judge found that Section 83 does not restrict the powers of the PG, which are set out in Article 88 of the Constitution.
On the contrary, she said, it empowers the police to carry out investigations of offences under POCA.
“It will defeat the purpose of POCA to interpret Section 83 as limiting the powers of the PG to the extent that she can only institute and conduct proceedings only after the IG has issued a written authority,” Judge Sibeya stated.
The judge said the PG’s application, based on the evidence contained in the affidavits and annexures filed in support thereto, proved that a prosecution was instituted and is pending against the defendants – that there are reasonable grounds for believing a confiscation order may be granted against the defendants.
Ricardo Gustavo, former fisheries minister Bernardt 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.
The State was represented by Wim Trengrove.
Gustavo was represented by Trevor Brockerhoff; Esau and Tamson by Florian Beukes, and Hatuikulipi, Shanghala and Mwatelulo by advocate Vas Soni SC from South Africa, instructed by Murorua Kurtz Kasper Inc.