FORMER minister of justice Sacky Shanghala is saying the law and the rules of the High Court would not allow the two pending criminal cases of alleged fraud and corruption involving Namibian fishing quotas to be joined and heard as one trial.
Shanghala is making this statement in an affidavit filed at the Windhoek High Court in opposition to an application by the state to have the two criminal cases emanating from the Fishrot fishing quotas corruption scandal combined into one matter and heard as one trial.
Judge Christie Liebenberg on Thursday last week postponed the hearing of the state’s application to 20 September.
The 10 men charged in the two cases were not present in court during the postponement.
Shanghala made the affidavit to set out the grounds on which he, his business partner James Hatuikulipi, and one of their co-accused, Pius Mwatelulo, are opposing the application to have the two pending cases heard during a single trial.
Shanghala, Hatuikulipi and Mwatelulo are charged in both matters.
Former minister of fisheries and marine resources Bernhard Esau and his son-in-law Tamson Hatuikulipi are also charged in both cases, but are not opposing the state’s application for the matters to be combined.
Both cases involve alleged corruption, fraud, money laundering and other crimes in the use of Namibian fishing quotas by the Icelandic-owned fishing company group Samherji.
In an affidavit filed at the court previously, prosecutor general Martha Imalwa said the state would be prejudiced if two separate trials were to take place, as evidence would be presented on a piecemeal basis to two different judges, and the state would not be in a position to put the complete picture before the particular court.
Imalwa said she believed if the two cases were tried separately, the trials would be duplicated at great cost and the state would face the risk that the accused may in the second trial claim they were being prosecuted on the same facts featured in the first trial.
However, Shanghala claims in his sworn statement there is no provision in the High Court’s rules which regulate the procedure to have criminal cases joined in the way that civil cases can be joined.
He also says the Criminal Procedure Act does not give the High Court the jurisdiction to have separate criminal cases joined into one matter.
The state initially chose to charge him and the other accused on separate indictments, and it should be bound by that choice, Shanghala says as well.
In the one case pending in the High Court, Shanghala, Esau, James Hatuikulipi, Tamson Hatuikulipi, Mwatelulo and Ricardo Gustavo, who is the sole director of Namgomar Pesca Namibia, are due to be prosecuted on charges that include counts of fraud, money laundering and racketeering.
Namgomar Pesca itself, seven close corporations, two trusts and a company connected to the accused are also charged in the same matter.
A former employee of Shanghala and James Hatuikulipi, Nigel van Wyk, is charged as well in the same case, in which he is facing counts of money laundering, unlawful possession of ammunition, defeating or obstructing the course of justice, and resisting authorised officers of the Anti-Corruption Commission in their investigation of the case.
The charges are linked to allegations that the accused – with the exception of Van Wyk – conspired with the Samherji group of fishing companies to corruptly and fraudulently access Namibian horse mackerel fishing quotas totalling 50 000 tonnes that had been allocated to Namgomar Pesca Namibia.
In the second case, Esau, Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Mwatelulo, former National Fishing Corporation of Namibia (Fishcor) chief executive Mike Nghipunya, Otneel Shuudifonya, Phillipus Mwapopi and eight close corporations and three trusts linked to them are charged with fraud, racketeering, money laundering and other crimes.
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The charges are linked to the Samherji group’s use of fishing quotas allocated to the state-owned Fishcor, the sale of hake quotas allocated to Fishcor, alleged fraud in Fishcor’s sourcing of dried fish for a government drought-relief programme, and the alleged theft of N$15 million from Fishcor to settle a debt of James Hatuikulipi and make a donation to Swapo.
Nghipunya, Gustavo, Van Wyk, Shuudifonya and Mwapopi are also opposing the application to have the cases combined and heard as a single trial.
The 10 accused are due to attend their next pretrial hearing in the High Court on 19 August.