Fishrot accused asks for trial to proceed

The Fishrot fraud, corruption and racketeering trial should proceed while attempts to appeal against rulings given in the case continue, one of the lawyers involved in the matter argued in the High Court at Windhoek Correctional Facility yesterday.

“Criminal trials must proceed to finality,” defence lawyer Ileni Gebhardt, who is representing the first accused in the Fishrot case, Ricardo Gustavo, said while addressing acting judge Marilize du Plessis in support of a request by Gustavo for his delayed trial to get going.

Gebhardt argued that two applications for leave to appeal against rulings given by Du Plessis in the case should not automatically halt the trial of the 10 men arraigned on charges about the alleged fraudulent and corrupt acquisition and use of Namibian fish quotas valued at more than N$150 million.

“This court is not merely entitled to continue with the trial; it is obliged to do so,” Gebhardt said during her address to the court.

Defence lawyers Florian Beukes, representing former minister of fisheries and marine resources Bernhard Esau, and Mbanga Siyomunji, on behalf of Tamson Hatuikulipi, informed the judge that they support Gebhardt’s arguments and request for the trial to proceed.

Fellow defence lawyer Joas Neemwatya, who is representing Otneel Shuudifonya, indicated he is not aligning himself with Gebhardt’s request.

The trial has effectively continued to be halted since Du Plessis refused an application by four of the accused – former attorney general and minister of justice Sacky Shanghala, James Hatuikulipi, Pius Mwatelulo and Shuudifonya – to postpone the case in January.

Following that ruling, Shanghala and Hatuikulipi asked Du Plessis to step down from the case.

Du Plessis dismissed the application for her recusal three weeks ago.

After that, Shanghala and Hatuikulipi notified the court that they are applying for permission to appeal to the Supreme Court against the recusal ruling.

Shuudifonya has also filed an application for leave to appeal against Du Plessis’s ruling on the request to postpone the case.

Gebhardt argued yesterday that the trial pending before Du Plessis should continue while the attempts to appeal against the postponement and recusal rulings continue.

Serial applications brought by accused persons who seek to halt the trial constitute an abuse of the court process, Gebhardt said.

She said the Constitution guarantees the right to a fair trial for every accused person.

That includes the right to a trial within a reasonable period of time, she said.

The right to a fair trial and a trial within a reasonable period of time belongs not only to Shanghala and Hatuikulipi, but also to Gustavo and all of the other accused in the matter, Gebhardt said.

The other accused are being held hostage to the litigation choices of Shanghala and Hatuikulipi, however, Gebhardt argued.

She said the case has been on the roll of the High Court since 2021, and since then the evidence of not a single prosecution witness has been presented to the court yet.

Plea proceedings in the matter were concluded before acting judge Moses Chinhengo in December 2024.

Since then, the state has not started to present the testimony of its witnesses to the court.

The applications for a postponement and for her recusal on which Du Plessis has given rulings have had one practical effect, which is that the criminal trial pending before her has not proceeded, Gebhardt said.

She said this is part of a deliberate strategy to delay the pending trial.

It is a fundamental principle that criminal trials should proceed to finality so that the accused involved can get clarity about their fate, she said as well.

If the trial proceeds while an appeal on the application for Du Plessis to step down from the case proceeds to the Supreme Court and that court orders her recusal, the trial would have to start anew, which would be “a nightmare” for the prosecution, Gebhardt said.

However, an eventual order for Du Plessis’s recusal is “a speculative and remote possibility”, Gebhardt also argued.

Du Plessis is scheduled to hear further oral arguments on the issue on 24 April.

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