Two of the accused in the Fishrot fraud, corruption and racketeering case have failed with an attempt to appeal against a ruling in which their application for the recusal of the presiding judge was dismissed.
An application by former attorney general and minister of justice Sacky Shanghala and a co-accused, James Hatuikulipi, for leave to appeal to the Supreme Court against acting judge Marilize du Plessis’s dismissal of their recusal application in March was dismissed in a ruling delivered in the High Court at Windhoek Correctional Facility on Friday.
Du Plessis concluded in her ruling that Shanghala and Hatuikulipi failed to make a case in their written or oral arguments that the grounds on which they asked her to step down from their criminal case would give rise to a reasonable apprehension of bias on her part.
Shanghala, Hatuikulipi and the other accused in the case assigned to Du Plessis face charges about the alleged illegal acquisition and use of Namibian fishing quotas.
On their first ground of appeal, which was that Du Plessis failed to take into account the cumulative effect of the grounds for her recusal that they raised in their recusal application, Du Plessis stated: “I find that they have little prospects of success [on appeal] based on their first ground of appeal.”
Four other grounds on which Shanghala and Hatuikulipi would have wanted to base an appeal to the Supreme Court are repetitions of the initial grounds for their recusal application, and those grounds have been dealt with extensively in her ruling on the application for her recusal, Du Plessis said.
Shanghala alleged 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 claimed.
He made 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]”.
Du Plessis remarked in her ruling in which she dismissed the application for her to step down from the case in March: “The finding that the commencement of this case has been delayed is a fact, not a value judgement.
The court never stated nor implied that it would consider every application that is brought before it through the ‘prism of a tactical delaying strategy’.
The fact that there has already been a considerable delay in the commencement of the trial was, therefore, only one of the factors that the court took into account when specifically dismissing the application for a postponement.”
In her opinion, a reasonable person would not form a reasonable apprehension that she would be biased based on her factual finding that there have been delays in the matter, Du Plessis added.
In the ruling delivered on Friday, Du Plessis said regarding the remarks she made about delays in the matter: “I find that another court will not interpret the finding of this court that ‘a tactical delaying strategy, at least to a degree, was at play’, as constituting a reasonable apprehension of bias.
I find that the conclusion reached by the court was based on a factual analysis of the history of the case and does not amount to an adverse judicial assessment of the applicants’ litigation posture.”
Shanghala, Hatuikulipi and the other eight individuals charged in the matter have to make their next appearance before Du Plessis on 24 June.
All of the accused, except for the tenth accused, Nigel van Wyk, who has been granted bail, are being held in custody.
