Judgement reserved on bid to block Fishrot charges

FOUR of the individuals charged in the Fishrot fraud, corruption and racketeering case are due to hear by early February next year if they have had success with an attempt to stop the prosecutor general from continuing to prosecute them.

Judge Gabriel Komboni postponed the delivery of his judgement in an application by former attorney general and justice minister Sacky Shanghala and three of his co-accused in the Fishrot case, James Hatuikulipi, Otneel Shuudifonya and Pius Mwatelulo, after hearing oral arguments in the matter in the Windhoek High Court yesterday.

Komboni said he would deliver his judgement on 3 February, or would let the parties involved in the case know if the judgement is ready earlier.

Shanghala, Hatuikulipi, Shuudifonya, Mwatelulo and seven close corporations, one company and three trusts in which they have interests are asking the court to issue an interdict that would stop the prosecutor general (PG) from continuing to prosecute them in the Fishrot case, which has been pending in the Windhoek High Court since April 2021.

The interdict they have applied for should be in force until the court had made a decision on a wide-ranging application in which they are attacking the investigation of their case, the admissibility of evidence gathered by the Anti-Corruption Commission and the police, and the PG’s decision to prosecute them.

The applicants are alleging that the ACC’s investigation of their case was done contrary to the provisions of Namibia’s Constitution, the Anti-Corruption Act, the Prevention of Organised Crime Act and the International Cooperation in Criminal Matters Act.

They are requesting the court to issue an interdict that would prohibit the use of a range of evidence gathered during the investigation, including evidence obtained through the use of search warrants issued by magistrates in Windhoek and at Gobabis and evidence obtained by the auditing firm Deloitte during its involvement in the investigation.

They also want the court to declare that the PG’s involvement in prosecutor-guided investigation carried out by the ACC undermined the independence and impartiality of the investigation and that the ACC’s investigation was not conducted in compliance with the provisions of the Anti-Corruption Act.

Shanghala and the other applicants are further asking the court to review and set aside the appointment of Deloitte as an investigator by the ACC, to prohibit the use of information obtained from outside Namibia in the absence of agreements on bilateral cooperation in criminal matters, and to prohibit the use of information obtained from Fishrot whistleblower Jóhannes Stefánsson and other witnesses who allegedly received indemnity from prosecution from the ACC.

South African senior counsel Kate Hofmeyr, representing the ACC and PG, argued yesterday that the applicants have laid no basis for an interdict stopping the PG from prosecuting them.

All of the issues raised by the applicants, such as the admissibility of evidence, can be dealt with in their criminal trial, Hofmeyr argued.

She also argued that the application before Komboni is the latest in a series of legal moves by some of the Fishrot accused that are aimed at delaying their trial.

With their review application, the applicants are trying to avoid a criminal trial, but there is no good basis for that, Hofmeyr argued.

“The law is dead against the applicants in this matter,” she said.

Shanghala argued the application on behalf of the applicants.

Hofmeyr represented the ACC and PG with legal counsel Dennis Khama and Danie Small.

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