Africa-Press – Namibia. THE former Minister of Fisheries and Marine Resources, Bernhardt Martin Esau, appeared today in the Windhoek High Court, where an application was made by the minister and his wife, Swamma Esau, for provision to be made from the Esau’s restrained properties for the payment of his legal costs.
High Court Judge De Jager is set to give judgment on the matter on 10 June 2024.
In the heads of arguments, lawyer Florian Beukes, who represents Esau, explained that Esau and his wife’s joint estate became wholly restrained and placed under the care of the curator bonis, David John Bruni, and Ian Robert McLaren for the purpose of preservation and administration.
The provisional restraint order was confirmed on 17 May 2023.
He added that Esau has been barred from settling his outstanding legal bills and anticipated future legal bills on account of the restraint order. “The 1st Applicant (Esau) stands charged as an accused in the colloquially termed ‘Fishrot’ criminal proceedings. This application is the 1st Applicant’s last means to secure legal representation in the Criminal Trial given Legal Aid’s refusal of his application for legal aid,” Beukes said.
He added that the application is based on Section 26 of the POCA which makes provision for the court to pay for legal costs as well as reasonable living expenses of a person and their dependents from restrained assets. He added that it is, however, required that the person has disclosed under oath all his or her interests in the property and has submitted to that Court a sworn and full statement of all his or her assets and liabilities.
The Prosecutor General, Martha Imalwa, has opposed the motion, stating in her answering affidavit that the applicants failed to meet legal requirements.
“In respect of the applicants, the restraint order is unlimited, in other words, it extends over all known and unknown property held by the applicants… It will become evident from what is stated below that the applicants failed to make the kind of full disclosure that is a precondition before the Court,” the PG said.
In her answering affidavit, the PG showed that the applicants failed to disclose all the monthly reports to the curators, including an account of what happened to the total surplus of N$370,847.92, accrued between May 2021 to July 2022, generated by the sale of cattle. She added that Esau also failed to disclose the deposits of about N$1,656,790.24 that were paid into his Standard Bank account.
Other undisclosed items include: a deposit received in June 2023, where cattle were sold to Windhoek Livestock Auctioneers for N$348,735; transfers out of the above Standard Bank account that took place over the period between 1 August 2022 to 30 November 2023, totalling N$1,600,000; and the current balance on the Agribank account with number 1088743201 that was in debit with N$159,349.00 referred to in a report dated 2 December 2022. She added that Esau also did not disclose the financial statements of any of the entities registered in the names of him and his wife, as well as the current positive balance of N$139,986.53 in his Standard Bank account and tax liabilities from farming activities, as well as the exact amount of livestock on the farm.
“The applicants alleged in the founding affidavit that they have livestock to the value of N$500,000.45. However, the value and the amount thereof were disputed by the PG and to date, no documentary proof exists hereof… In effect, the applicants admit the outdated and inaccurate nature of their account of the livestock on the farm. This too falls short of the requisite disclosure as required by section 26. Based on the above, we submit this Court is not in a position to be satisfied with the applicants’ disclosure and to find that Esau is unable to pay his legal expenses other than through the release of restrained assets for this purpose, as required by section 26(2) of POCA. In the absence of full disclosure, this Court is in no position to grant the relief which applicants seek. We submit that this application must fail,” the PG concluded.
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