An Attempt to appeal against a ruling on an application for a postponement of the Fishrot fraud, corruption and racketeering case has ended in failure.
The attempted appeal, filed by one of the accused in the matter, Otneel Shuudifonya, was struck off the court roll in the High Court at Windhoek Correctional Facility yesterday.
Shuudifonya’s application to be allowed to appeal against a ruling that acting judge Marilize du Plessis delivered in January was struck off the roll after Du Plessis found that a notice for leave to appeal filed by Shuudifonya’s defence lawyer, Joas Neemwatya, did not comply with requirements set out in the Criminal Procedure Act.
“It cannot be cured, since it amounts to a nullity,” Du Plessis stated about Shuudifonya’s notice for leave to appeal, which did not set out the grounds for his intended appeal.
Du Plessis said in terms of the Criminal Procedure Act, leave to appeal to the Supreme Court is in the ordinary course of events only granted after an accused has been convicted and sentenced.
Shuudifonya and the other accused in the Fishrot case about the alleged illegal acquisition and use of Namibian fishing quotas have not been convicted and sentenced.
Their case has been delayed since plea proceedings were concluded in the High Court in December 2024.
A ruling can be appealed against only if it is a decision that is final in effect and cannot be altered by the court that made it, if it is definitive of the rights of the parties involved in a matter, and if it has the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings of a case, Du Plessis recounted.
The dismissal of an application by Shuudifonya for a postponement of six months to enable Neemwatya to prepare for his client’s trial was not a final decision in the sense that parties in the case are now barred from again applying for a postponement of the case, should the need arise, Du Plessis said.
“The ruling did not provide definitive and distinct relief to any of the parties in the criminal trial and it did not dispose of any of the relief sought in the main trial,” she added, concluding that on those points Shuudifonya’s application for leave to appeal against the postponement ruling should be struck from the court’s roll.
Du Plessis yesterday also heard oral arguments from former attorney general and minister of justice Sacky Shanghala and deputy prosecutor general Cliff Lutibezi on an attempt by Shanghala and one of his co-accused, James Hatuikulipi, to appeal against a ruling in which she dismissed an application for her to step down from the case in March.
The ruling on the application for leave to appeal against the recusal ruling is scheduled to be delivered on 22 May.
On the same date, Du Plessis is also scheduled to give a ruling on a request from the first accused in the matter, Ricardo Gustavo, supported by former minister of fisheries and marine resources Bernhard Esau, for their trial to proceed while Shanghala and Hatuikulipi are trying to appeal to the Supreme Court against Du Plessis’ decision not to recuse herself from their case.
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