An attempt to get acting judge Marilize du Plessis to recuse herself from the Fishrot fraud, corruption and racketeering case failed in the High Court at Windhoek Correctional Facility on Monday.
The fact that the state has not begun to present the testimony of its first witness in the Fishrot trial after the case had been on the High Court’s roll for nearly four and a half years has been caused by numerous applications that were brought in the matter, Du Plessis said in a ruling on an application for her recusal that was filed by two of the accused in the case, former attorney general and minister of justice Sacky Shanghala and James Hatuikulipi, seven weeks ago.
Another of the accused in the matter, former National Fishing Corporation of Namibia (Fishcor) chief executive Mike Nghipunya, supported the application for Du Plessis to step down from the case, which was assigned to her in July last year.
In her ruling yesterday, Du Plessis recounted that she refused an application for a postponement of the case in January this year in light of the delay already seen in the matter.
A remark she made about delays in the case in her ruling on the postponement application was based on an analysis of available and verifiable facts about the history of the matter and was a factual finding and not an opinion that she expressed, Du Plessis said.
She made the remarks before dismissing the application for her recusal.
Shanghala alleged in a sworn statement filed at the court that remarks made by Du Plessis during a court appearance of the accused in August last year and in her ruling on a postponement application in January indicated that in her view previous applications brought by the accused have delayed their trial, and that she was biased.
Du Plessis said in her ruling yesterday: “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 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.
On a claim by Nghipunya that she should recuse herself because she has informed the accused and lawyers involved in the case that she knows two of the state’s listed witnesses, who live at Otjiwarongo, where she was based as a regional court magistrate, Du Plessis said she has a “nodding acquaintance” with the two people, as they live at the same town, but that they are not friends and she does not have a business relationship with them.
“I have no relationship with them which will impact on my ability to impartially evaluate their testimony,” Du Plessis stated.
One of the defence lawyers involved in the case, Joas Neemwatya, who is representing Otneel Shuudifonya, has informed the court that he intends to appeal against Du Plessis’s ruling on the postponement application.
Neemwatya’s application to be allowed to appeal is scheduled to be heard on 13 April.
In an age of information overload, Sunrise is The Namibian’s morning briefing, delivered at 6h00 from Monday to Friday. It offers a curated rundown of the most important stories from the past 24 hours – occasionally with a light, witty touch. It’s an essential way to stay informed. Subscribe and join our newsletter community.
The Namibian uses AI tools to assist with improved quality, accuracy and efficiency, while maintaining editorial oversight and journalistic integrity.
Stay informed with The Namibian – your source for credible journalism. Get in-depth reporting and opinions for
only N$85 a month. Invest in journalism, invest in democracy –
Subscribe Now!
