Fishrot accused says recusal bid aims to delay trial

The first accused in the Fishrot fraud, corruption and racketeering case, Ricardo Gustavo, is alleging that an application for acting judge Marilize du Plessis to step down from the case is intended to delay the start of his long-pending trial.

Gustavo makes the claim in an affidavit filed at the Windhoek High Court in response to an application in which two of his co-accused, former attorney general and minister of justice Sacky Shanghala and James Hatuikulipi, are asking Du Plessis to recuse herself from their case.

“I submit that this application is merely intended to delay the start of the trial and to further frustrate the proceedings,” Gustavo says in his affidavit.

In the sworn statement, Gustavo sets out the grounds for his opposition to the recusal application filed by Shanghala and Hatuikulipi.

The attempt to get Du Plessis to step down from the case is being supported by one of the other accused in the matter, former National Fishing Corporation of Namibia chief executive Mike Nghipunya.

Shanghala alleges in a sworn statement filed at the court that a remark made by Du Plessis during a court appearance of the accused in August last year indicated that in her view previous applications brought by the accused have delayed their trial.
Remarks made by Du Plessis in January this year in a judgement on applications for a postponement of the case also showed she was biased, Shanghala is claiming.

He is making that allegation in connection with a remark by Du Plessis that “application after application have been brought before the court”, that none of the applications had been found to have any merit, and that it was difficult to find “that there is not, at least to a degree, a tactical delaying strategy at play from the side of specifically accused two [Hatuikulipi], three [Shanghala] and six [Pius Mwatelulo]”.

Gustavo says in his affidavit: “The fact remains that the trial has still not commenced, its commencement has been delayed because each time the trial must start, an interlocutory application is filed. Those applications, when launched, must be determined and, therefore, delay the commencement of the trial.”

Addressing Du Plessis on the recusal application in the High Court at Windhoek Correctional Facility yesterday, Gustavo’s defence lawyer, Ileni Gebhardt, said the remarks made by Du Plessis in her judgement on applications for a postponement of the matter were not out of place, considering the history of the matter.

The recusal application is, in Gustavo’s view, an abuse of process and simply meant to delay the leading of evidence in the pending trial, Gebhardt said.

She also argued that Shanghala and Hatuikulipi have a fixed intention for their trial to start only when they decide it should start.
With the case having been assigned to her to decide, Du Plessis has a duty not to recuse herself from hearing the matter, Gebhardt argued as well.

Shanghala argued that Du Plessis has made a finding that previous applications filed in the matter had been without merit and that he and Hatuikulipi have been engaged in tactical delay strategies.

With such a finding, Du Plessis has demonstrated that she is predisposed to a particular conclusion, not open to persuasion and biased, Shanghala argued.

He further argued that there is a narrative on social media that the Fishrot case is being delayed by him, and claimed that Du Plessis could be influenced by such views.

On behalf of the state, deputy prosecutor general Cliff Lutibezi argued that Shanghala and Hatuikulipi did not have reasonable grounds for an apprehension that Du Plessis is biased.

Noting that the trial was supposed to start in October 2023, but has not commenced, Lutibezi said Du Plessis was entitled to make a finding that there was a delay strategy on the part of Shanghala and Hatuikulipi.

Du Plessis postponed the delivery of her ruling on the recusal application to 23 March.

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