Judge stays on Fishrot case

THE first accused in the Fishrot corruption and fraud case, Ricardo Gustavo, wants to appeal against a decision of the assigned trial judge to not step down from the matter.

Defence lawyer Trevor Brockerhoff, who is representing Gustavo, informed acting judge Kobus Miller in the Windhoek High Court yesterday that he had instructions to appeal against Miller’s decision to dismiss Gustavo’s application for his recusal from the Fishrot case.

Miller turned down Gustavo’s request for his recusal after he found that a reasonable person would not come to a conclusion that remarks which he made in an appeal judgement on a previous bail application by Gustavo showed he would not be objective when presiding at the eventual trial of Gustavo and his co-accused.

Gustavo’s application for Miller’s recusal was based on remarks which he made in a judgement in July 2020, when he dismissed an appeal by Gustavo against a magistrate’s decision to turn down his first application to be granted bail.

According to Gustavo, Miller has found that he was employed by a company, Namgomar Pesca, which was not registered, and that he made misrepresentations which prompted the allocation of a fishing quota to Namgomar.

He further complained that Miller stated in his appeal judgement that during his bail hearing the state had made out a case against him on which he could be convicted.

In his ruling yesterday, Miller said the remarks made in his appeal judgement were entirely based on evidence heard when Gustavo applied for bail in the Windhoek Magistrate’s Court.

He said Gustavo’s application for his recusal had a fundamental flaw, in that it sought to equate a preliminary view of evidence with a final finding that would follow in a trial, once evidence had been heard.

Miller concluded that Gustavo did not show he would be biased if he presided at the eventual trial.

In the case assigned to Miller as trial judge, Gustavo, former minister of fisheries and marine resources Bernhard Esau, former attorney general and justice minister Sacky Shanghala, a business partner of Shanghala, James Hatuikulipi, a former chief executive officer of the state-owned National Fishing Corporation of Namibia (Fishcor), Mike Nghipunya, and Esau’s son-in-law Tamson Hatuikulipi are facing charges with Pius Mwatelulo, Otneel Shuudifonya, Phillipus Mwapopi and Nigel van Wyk, as well as two companies, 12 close corporations and four trusts represented by individual accused.

They are due to be prosecuted on 42 criminal charges, including counts of fraud, bribery, corruption, racketeering, money laundering and tax evasion.

The state is alleging that the accused acted together to devise a scheme in which they benefited financially from arrangements to give the Icelandic-owned fishing company group Samherji access to Namibian fishing quotas, through Fishcor and the company Namgomar Pesca Namibia.

According to the state’s allegations against the accused, tens of millions of Namibia dollars in quota usage fees paid by the Samherji group of companies were channelled to the individual accused and corporate entities and trusts represented by them, whereas the fishing quotas to which Samherji had gained access had supposedly been allocated “for governmental objectives in the public interest”.

All of the accused except Gustavo, who was granted bail in an amount of N$800 000 in December, after two years in pretrial detention, are being held in custody.

Their case has now been postponed to 20 July.

Tamson Hatuikulipi and Van Wyk are due to return to court on 11 July, when the hearing of a bail application by them is scheduled to start before judge Johanna Salionga.

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