Former attorney general and justice minister Sacky Shanghala and one of his co-accused in the Fishrot fraud, corruption and racketeering case, James Hatuikulipi, want acting judge Marilize du Plessis to step down from their trial.
An application in which Shanghala and Hatuikulipi are asking for Du Plessis’s recusal from the Fishrot case about the alleged unlawful allocation and use of Namibian fish quotas was filed at the Windhoek High Court on Tuesday.
The request for Du Plessis’s recusal is the third recusal application that has been made in respect of a judge assigned to the Fishrot case.
Applications have also been made previously for acting judge Kobus Miller and thereafter acting judge Moses Chinhengo to recuse themselves from the case. Both judges turned down those applications.
In a sworn statement filed at the High Court on Tuesday, Shanghala says: “In this application, I allege that the presiding judge is actually not impartial.
She is biased. I further allege that I harbour an apprehension of bias which would result in me being denied a fair trial.”
Shanghala alleges that a remark made by Du Plessis during a court appearance by the accused in the Fishrot case in August last year indicated that in her view previous applications brought by the accused have delayed their trial.
The remark made by Du Plessis during an exchange with deputy prosecutor general Ed Marondedze was: “Yes, the record does speak for itself as to the readiness of the state and the delays caused by applications, we leave it at that.”
In his affidavit, Shanghala says that remark troubled him.
He claims it is a “contrived narrative” that the accused in the matter have caused delays through applications they have filed.
Shanghala says he and Hatuikulipi were “shocked and perplexed” by statements made by Du Plessis in January in a judgement on applications for a postponement of the case.
Du Plessis remarked that it was clear from the history of the case that “it has been beset by delays”.
She also recounted 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]”.
The remarks made by Du Plessis show “the bias and partiality the court holds for the state and its case”, Shanghala claims.
He also notes that he, Hatuikulipi, Mwatelulo and some of the other accused were arrested on 27 November 2019, which was a day when presidential and National Assembly elections were held in Namibia, and claims that the arrests were “an attempt to impact the electoral outcome”.
He also claims: “This makes this case a political case, explaining our differentiated treatment.”
Shanghala accuses the state and Chinhengo of having been prepared to press the matter to trial “with undue haste despite procedural omissions that implicate fair-trial rights”.
He claims as well: “[T]he court cannot see the state’s wrongdoing; it only sees the conduct of accused persons and in its mind, that conduct – exercising their rights and taking points and bringing applications – is nothing more than a delay tactic for a trial the court is eager to commence and to commence with haste at the expense of fundamental rights.”
Shanghala disputes that applications filed by the accused have been without merit.
He also notes that he and Hatuikulipi have since 2024 filed 15 applications in the High Court, and says it cannot be said those applications were merely delay tactics without merits that contributed nothing to Namibian jurisprudence.
Du Plessis yesterday postponed the hearing of the recusal application to 9 March.
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