PROSECUTOR general Martha Imalwa’s court application for a property restraint order over assets of six of the men charged in the Fishrot fishing quotas fraud and corruption case was flawed from the start, lawyers representing the six accused argued in the Windhoek High Court yesterday.
Imalwa’s application for a Prevention of Organised Crime Act (Poca) property restraint order in November 2020 was based on evidence collected during an investigation by the Anti-Corruption Commission, while a section of Poca says such an investigation should be carried out by a police officer directed in writing by the inspector general of the Namibian Police, according to arguments on behalf of six of the Fishrot accused that were heard by judge Orben Sibeya.
The arguments before Sibeya were focused on the interpretation of a section of Poca that says the inspector general may in writing direct a police officer to investigate an offence under the act, and that an authorised police officer may obtain information to enable the prosecutor general to institute proceedings for the restraint and confiscation of property obtained through criminal activities.
Senior counsel Vas Soni argued that Imalwa’s application for a property restraint order was based on an investigation by the ACC that was not authorised by the police’s inspector general, and as a result the interim restraint order may not be lawfully confirmed now.
Soni and fellow lawyers Trevor Brockerhoff and Florian Beukes asked Sibeya not to confirm the interim property restraint order that he granted in November 2020 – a move that would see control of their restrained assets returned to former minister of fisheries and marine resources Bernhard Esau, former attorney general and justice minister Sacky Shanghala, businessman James Hatuikulipi, Esau’s son-in-law Tamson Hatuikulipi, Pius Mwatelulo and Ricardo Gustavo, who are all facing criminal charges in the Fishrot case.
In terms of the property restraint order, an extensive range of assets belonging to Esau, Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Mwatelulo and Gustavo may not be dealt with and has been placed under the control of two curators.
The restrained assets include bank and investment accounts, interests in companies and close corporations, immovable properties, nearly 60 motor vehicles, firearms, jewellery and several luxury watches.
Assets of Esau’s wife, Swamma Esau, and his daughter, Ndapandula Hatuikulipi, who is married to Tamson Hatuikulipi, are also affected by the restraint order.
The ACC has gathered evidence which will prove that the accused and corporate entities used by them committed corruption, fraud, tax evasion, money laundering and racketeering offences in terms of the Prevention of Organised Crime Act, Imalwa has alleged in an affidavit filed at the court.
On behalf of the prosecutor general, senior counsel Wim Trengove argued yesterday that while the ACC spearheaded the investigation, it was a joint investigation with the police. The purpose of the section of Poca that says the inspector general may direct a police officer to investigate an offence under the act is that the police may use their powers to carry out criminal investigations to also investigate matters under the parts of Poca dealing with the restraint and confiscation of property connected to crime, which are civil and not criminal legal proceedings, Trengove argued.
He noted that the section in question says the inspector general “may” – and not “must” – direct a police officer to investigate an offence under Poca.
Trengove further argued that investigations of other crimes, like theft or fraud, may lead to the discovery of crimes covered under Poca, such as money laundering and racketeering. In such an instance, it would be absurd to say the prosecutor general may not then rely on evidence collected without the inspector general’s written authority for legal proceedings in terms of Poca, he remarked.
Soni, however, argued that the ACC may not carry out an investigation for the purposes of a property restraint application in terms of Poca. Such an investigation should be carried out by the police, he said.
On the use of the word “may” in the section of Poca at the centre of the arguments heard by Sibeya, Soni remarked: “’May’ sometimes means ‘must’, depending on the circumstances.”
The end result of Imalwa’s reliance on evidence collected by the ACC for her property restraint application is that the interim order given in November 2020 should not be made a final order, Soni said.
Sibeya postponed the delivery of his judgement in the matter to 17 May. In the meantime, the interim restraint order has been extended until 17 May as well.
