PROSECUTOR general Martha Imalwa says disgraced former fisheries minister Bernhard Esau and his co-accused in the Fishrot scandal were opportunistic and their urgent bid to be released from police custody was not legitimate and should be dismissed.
In an answering affidavit submitted to the High Court this week, Imalwa said the case filed by Esau and his co-accused should be dismissed because it lacked urgency.
“In this instance, there is no trigger event for urgency and further to that, if it was urgent, then the applicants are the urgency smiths thereof, in that they created such perceived urgency. Owing to that fact, they cannot be accorded any relief claimed,” Imalwa’s affidavit reads.
She said the applicants had failed to set out the facts and reasons why they believe they cannot obtain substantial redress in due course if the matter was to be heard ordinarily.
She added that Esau and his co-accused were also opportunistic, “have become oppugn of the truth” and that their case was not brought for legitimate purposes.
Esau and the other five people who were arrested for their involvement in the Fishrot corruption scandal filed an urgent application in the Windhoek High Court last week, asking the court to order their immediate release from custody due to the alleged unlawfulness of their arrest.
After hearing oral arguments from the lawyers representing both parties, acting judge Kobus Miller reserved his judgement to review the arguments from the lawyers.
He said he will deliver his judgement in the matter on Friday 27 December.
This means the two former ministers – Esau and former justice minister Sacky Shanghala and their co-accused – James Hatuikulipi, Ricardo Gustavo, Tamson ‘Fitty’ Hatuikulipi and Pius ‘Taxa’ Mwatelulo, will spend Christmas behind bars.
In his affidavit, Esau claims he and his co-accused are being “detained under horrible conditions” at Seeis Police Station. Esau, Shanghala and the other four accused are also asking the court to review and set aside the decision to issue the arrest warrants that led to them being taken into custody on 27 November.
They further want the court to review and set aside Anti-Corruption Commission (ACC) director general Paulus Noa’s decision to refer their case to the prosecutor general for prosecution as well as Imalwa’s decision to institute charges against them.
“Our liberties have been taken away through a completely invalid process,” Esau is claiming in his sworn statement. He also says he is approaching the court to relieve him from “continuous invasive and intrusive detention on the basis of an invalid [arrest] warrant and consequently an invalid arrest and detention”.
The prosecutor general in her answering affidavit thus argued that her decision to prosecute the Fishrot accused cannot be reviewed as being requested by the accused persons. Reviewing the decision to prosecute, Imalwa said, would require the court to consider and “determine the evidence against them”.
“I, in my capacity, cannot be restricted in my decision to carry out my constitutional functions. This court, with all due respect to it, has no authority to scrutinise and/or review the rational decision to try the applicants, as such review would amount to considering and determining the evidence against them at this stage, which is a function of the trial court,” she said.
She added: “It is very clear to me, as shall be demonstrated herein below, that the basis upon which the applicants have lodged the current proceedings is premised on an erroneous understanding of the law”.
Esau and his co-accused were represented by South African lawyers, advocate Tembeka Ngcukaitobi and senior counsel William King.
Senior counsel Piet van Wyk represented ACC director Paulus Noa, the ACC, Imalwa, and Namibian Police inspector general Sebastian Ndeitunga.
Ngcukaitobi argued that the arrest warrants issued against his clients were unlawful and should be nullified by the court.
He said if the relief they seek to nullify the warrants is granted, all subsequent actions taken against his clients should also be declared unlawful, including their continued detention.
According to him, the arrest of his clients was unlawful because they [Fishrot 6] had offered to cooperate with the law enforcement agencies and that they were not a flight risk.
Ngcukaitobi further argued that it was also important to consider that his clients have been subjected to inhuman treatment at the hands of law enforcement agents at the Seeis Police Station, where they are being detained.
