‘Fishrot’ judge to rule on recusal application

Namibian High Court Acting Judge Moses Chinhengo on Friday indicated that he will rule on the recusal application by Fishrot minnow Nigel van Wyk on 12 March. This was after he heard oral arguments from state advocate Ed Marondedze, who is opposing the application. Legalbrief reports that the nation is preparing for the biggest graft trial in its short history. The scandal – named after a 2019 Wikileaks release called the ‘Fishrot Files’ – has embroiled Iceland which is monitoring proceedings closely. Several suspects, including former government Ministers have been charged with fraud, corruption and money laundering in connection with the fishing quotas scandal. They are accused of having been involved in a scheme in which Icelandic companies paid them at least N$103m to get access to Namibian fishing quotas between 2014 and 2019. BBC News reports that the scandal has also damaged the wider Namibian fishing industry. Jobs have gone and government revenue has been lost. Some of the money earned by Fishcor was supposed to have gone to social programmes such as drought and unemployment relief. The scandal first broke in November 2019, when WikiLeaks shared over 30 000 documents – including company emails, contracts, presentations and photos – leaked by a former Samherji manager in Namibia, Johannes Stefansson. He alleged that the company had colluded with a group of influential figures to get access to the fishing quotas at below the market price.

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Mbanga Siyomunji, who brought the recusal application on behalf of Van Wyk, was not present in court, and Enos Mwakondange stood in for him. New Era reports that Mwakondange told the judge that his instructions from Siyomunji were that he stands by his written heads of argument. The judge, however, wanted to know if Mwakondange could give any insight into the heads, and the latter had to acknowledge that he was only given the instructions the day before, and did not study the matter. Chinhengo was not impressed, neither was Marondedze, who cited an example of a similar case where Siyomunji was involved, and where the presiding judge proposed sanctions. Van Wyk brought the application on the presumption that Chinhengo is biased, and that he fears that he will not receive a fair trial. He based his presumptions on the fact that the judge pressed the unrepresented accused persons to plead, despite their remonstrations. While he is not currently supporting the application, former Justice Minister Sakeus Shanghala had an issue with the fact that he was not informed of the state’s intention to oppose the application. None of the other accused are opposing or supporting the application. Van Wyk, Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Ricardo Gustavo, Bernard Esau, Mike Nghipunya, Otneel Shuudifonya, Phillipus Mwapopi and Pius Mwatelulo are charged with corruptly receiving payments of at least N$300m to give a competitive advantage to Icelandic fishing company Samherji in securing access to horse mackerel quotas in Namibia.

New Era reports that 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 SA, as well as Icelandic nationals Egill Helgi Arnason, Ingvar Juliusson and Helgason Adelsteinn.

In a separate matter, senior counsel Mike Hellens has slammed a Namibian Supreme Court ruling that dismissed his and his colleague Dawie Joubert's claims they were unlawfully coerced into pleading guilty to immigration fraud as ‘a shocking failure of justice’. Both South African lawyers were involved in the  Fishrot matter. Three Supreme Court judges ruled in favour of Namibia's Home Affairs Minister Albert Kawana, who had appealed a Namibian High Court's findings that Hellens and Joubert's arrests were characterised by ‘gross irregularity’ and should therefore be set aside as unlawful. ‘I feel no doubt in my mind in concluding that applicants (Hellens and Joubert) have established that a good ground exists to review and set aside the conduct or act complained of,’ Acting Judge C Parker stated in that now invalidated High Court decision. News24 reports that Supreme Deputy Chief Justice Petrus Damaseb and Judges Hosea Angula and Shafimana Ueitele disagreed with Parker's decision – and, in a ruling written by Angula, held Hellens and Joubert ‘had failed to prove that they were coerced to plead guilty and that such coercion constituted an irregularity in the proceedings’. ‘There is nothing on record that suggests that their pleas had not been made voluntarily. In this regard, their plea explanations demonstrate that the pleas had been made freely and voluntarily with full appreciation of their consequences,’ the Supreme Court found. Hellens and Joubert also represent the Gupta family and their associates and they previously acted for former President Jacob Zuma and his son, Duduzane.

At the time of their arrests in November 2019, Hellens and Joubert were set to represent six accused in a bail application for the corruption case. When Hellens and Joubert applied for entry to Namibia to argue the fish rot bail application, they said they were in the country for a visit and a meeting and were granted visitors' permits. However, News24 reports that they were arrested by an immigration officer and charged with contravening the provisions of Namibia's Immigration Control Act. They faced charges of rendering services as legal practitioners without an employment permit and furnishing false or misleading information to the immigration officers who gave them visitors' permits.