Esau wants delayed Fishrot trial to now proceed

The judge presiding over the Fishrot fraud, corruption and racketeering case should order that the trial of the 10 individuals charged in the matter must now proceed, a lawyer representing former minister of fisheries and marine resources Bernhard Esau argued on Friday.

Addressing acting judge Marilize du Plessis during proceedings in the High Court at Windhoek Correctional Facility, defence lawyer Florian Beukes argued that the trial of the accused arraigned before Du Plessis should proceed while two of the accused are trying to appeal against a ruling in which Du Plessis dismissed an application for her to step down from the case.

Former attorney general and minister of justice Sacky Shanghala and his business partner James Hatuikulipi are asking Du Plessis to allow them to appeal to the Supreme Court against her decision five weeks ago not to recuse herself from their criminal case about the alleged illegal acquisition and use of Namibian fishing quotas.

With oral arguments on the application for leave to appeal of Shanghala and Hatuikulipi set to be heard on 5 May, defence lawyer Ileni Gebhardt, representing the first accused in the case, Ricardo Gustavo, asked Du Plessis nearly two weeks ago to order that the trial pending before her should proceed while Shanghala and Hatuikulipi are pursuing their quest to appeal.

Gebhardt argued that it is a fundamental principle that criminal trials must proceed to finality, and added that the other accused in the matter are “all held hostage” by the litigation choices made by Shanghala and Hatuikulipi, who she said have “a deliberate strategy to delay the trial”.

Two other applications for the recusal of judges who previously dealt with the case and appeal attempts that followed on those applications took about two years to be concluded, Beukes noted on Friday.

He reminded Du Plessis that Esau has been held in custody for nearly six and a half years since his arrest near the end of November 2019, and he is still waiting for the state’s first witness to testify in his trial.

Esau’s health has deteriorated during the years following his arrest, and he still has no certainty about when his trial would be concluded, Beukes said.

His instructions from Esau are to assert his right to a trial within a reasonable period of time, Beukes also said.

He argued that an application for leave to appeal against a recusal ruling does not automatically halt proceedings in a trial.

It is only when it has been established that a court is biased that the court should not continue with a criminal trial, but in the case at hand it has not been established that the court is biased, Beukes argued.

The state did not take a stance in favour of or against the request of Gebhardt and Beukes for the trial to continue, with deputy prosecutor general Cliff Lutibezi informing Du Plessis that the state would abide by her ruling.

However, Lutibezi remarked that a recusal application “fundamentally challenges the impartiality of the court”, which he said is a constitutional issue, as accused persons have a constitutional right to be tried by an impartial court.

If the Supreme Court were to find that the judge should have recused herself, the trial that took place before her would be a nullity, would be set aside and the trial would have to start again from the beginning, Lutibezi noted.

Whether the trial should now proceed, while an application for leave to appeal against Du Plessis’s recusal ruling is pending, is for the court to decide, Lutibezi said.

Du Plessis postponed her ruling on the request to proceed with the trial to 22 May.

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