Africa-Press – Namibia. The Supreme Court has dealt a blow to an attempt by three of the accused in the Fishrot fraud, corruption and racketeering case to restrict the prosecutor general’s use of the Prevention of Organised Crime Act (Poca) to obtain asset restraint orders.
An appeal of former attorney general and minister of justice Sacky Shanghala, James Hatuikulipi and Pius Mwatelulo against a Poca restraint order in respect of a wide range of assets belonging to them was dismissed in the Supreme Court in Windhoek on Thursday.
Shanghala, Hatuikulipi and Mwatelulo lodged the appeal after Windhoek High Court judge Orben Sibeya in May 2023 confirmed an interim assets restraint order that was granted in terms of the Poca in November 2020.
In terms of the restraint order, a range of assets belonging to six of the accused in the Fishrot case – Shanghala, Hatuikulipi, Mwatelulo, former minister of fisheries and marine resources Bernhard Esau, Tamson Hatuikulipi and Ricardo Gustavo – have been placed under the control of curators. The High Court has also ordered that the six accused may not in any manner deal with the restrained assets.
The assets include funds in bank accounts of the six accused and of corporate entities and trusts controlled by them, immovable properties, motor vehicles and luxury watches, smartphones and computers. The restraint order is in force pending the finalisation of the criminal case in which the Fishrot accused are charged and in which an assets confiscation order could be made if they are found guilty.
In the Supreme Court’s judgement, which was prepared by acting judge of appeal Theo Frank, it was noted that the bone of contention in the appeal was a section of Poca which states that the inspector general of the Namibian Police may direct a member of the police in writing to investigate alleged offences in terms of the act.
Offences falling under the Poca include racketeering, money laundering and criminal gang offences.
It was argued on behalf of Shanghala, Hatuikulipi and Mwatelulo that a section of the Poca required that an application for an assets restraint order had to be based on an investigation by a member of the police authorised by the inspector general. However, prosecutor general Martha Imalwa’s application for an assets restraint order in the High Court was based on a sworn statement made by an investigator of the Anti-Corruption Commission (ACC), which led the investigation of the Fishrot case.
Frank agreed with Sibeya’s finding that the Poca does not restrict the prosecutor general (PG) to base an assets restraint application solely on evidence collected by the police. It would be absurd to expect that a further investigation should be carried out by the police for the purposes of an assets restraint application by the PG when all the facts relevant to such an application have already been gathered in the course of a criminal investigation, Frank said.
The evidence on which Imalwa relied when she applied for an assets restraint order showed that Shanghala, Hatuikulipi and Mwatelulo had agreed to a scheme and acted on it to obtain Namibian fishing quotas in an unlawful manner and that there was an agreement in place between them and the Icelandic fishing company Samherji for the quotas to be made available to Samherji in return for payments to them, Frank said.
“To hide the fact that payments of substantial amounts to the appellants by or on behalf of the Icelandic entity in respect of such quotas were made, use was made of consulting agreements and various legal entities to channel the money to the appellants both in Namibia and abroad,” Frank recounted.
He also said: “Because of the ongoing nature of the scheme and the substantial nature of the bribes paid, the fact that the Poca was breached became evident from the investigation itself and no further investigation was needed.”
Acting judges of appeal Rita Makarau and Hannelie Prinsloo agreed with Frank’s judgement.
The court ordered Shanghala, Hatuikulipi and Mwatelulo to pay the PG’s legal costs in the appeal, except for the costs of a supplementary appeal record filed at the end of June 2025.
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