While the prosecution is adamant that joining the two Fishrot matters will be both cost effective and save time, the parties opposing it totally disagree.
The State is applying for the two Fishrot matters, Namgomar and Fishcor, to be heard as one case before one judge.
Prosecutor Ed Marondedze in his submission yesterday before Windhoek High Court Judge Christie Liebenberg said, in his view, none or little prejudice will be suffered by the accused.
According to him, almost all of the evidence that will be presented will have a bearing on the charges all of the accused face, namely racketeering and money laundering. The other charges, he said, which do not overlap in the two indictments are few and far between.
“As alluded to in the prosecutor general’s founding affidavit, almost all of the accused in the Namgomar case are the same accused in the Fishcor case and it is alleged that these accused persons in both cases conspired with the Samherji group of companies and acted with a common purpose to enable Samherji to access Namibia’s fishing quotas through Namgomar and Fishcor, respectively. The beneficiaries from the proceeds of the fishing quotas received by Samherji group in both cases were inter alia the accused persons hence the same criminal enterprise was involved in both cases,” Marondedze argued.
“Wrong,” said Trevor Brockerhoff, on behalf of Ricardo Gustavo, a former senior manager at Investec Asset Management Namibia (now Ninety-One).
The indictments indicate that out of a total of 340 State witnesses to be called, fewer than 20 are common in both cases, which means his client will have to sit through the evidence of more than 140 witness testimonies that has no bearing on him.
James Diedericks, instructed by MKK Incorporated, on behalf of former justice minister Sacky Shanghala, former managing director of Investec Asset Management Namibia James Hatuikulipi and Pius Mwatelulo, echoed the sentiments of Brockerhoff, but added that the State is asking the High Court to sanction a procedure that is not lawful.
According to him, the sections used by the State for “marrying the two matters” does not support it as it refers to “charges being consolidated” and no mention is made in the specified sections of indictments which is essentially what the State wants.
Tinashe Chimbwana, instructed by Jermaine Muchali on behalf of Nigel van Wyk, argued that his client’s position is different from his co-accused as it is only mentioned once that he received money from Shanghala.
He further said that Van Wyk was only roped into the main charges of money laundering and racketeering after he complied with an order from his boss to remove certain items from his residence.
The fact of the matter, he said, is that Van Wyk should never have been indicted in the main trial and he asked the court to order that Van Wyk be tried separately.
Milton Engelbrecht, on behalf of former CEO of Fishcor Mike Nghipunya, Otneel Nandetonga Shuudifonya and Phillipus Mwapopi, argued that the application is wrong in law and that the State used the wrong section.
He further argued the State failed to attach certain documents to the founding affidavit of the PG, which makes the application null and void.
According to him, what the State wants to do is show a modus operandi, which cannot be allowed by the court.
In reply, Marondedze said that the documents refer to by the accused are already in their possession as it was made available to them during discovery.
He further said that a vast portion of the evidence would deal with racketeering and money laundering which are applicable to all of the accused. He further argued that the State does not seek the consolidation of the indictments, but the joinder of the charges as one to be heard simultaneously by one judge.
According to him, all of the accused, notwithstanding at which station they boarded, this train is on the journey together and should be treated as such.
Judge Liebenberg reserved his judgment and indicated the ruling will be delivered on 6 October at 9h00.