Africa-Press – Namibia. THE judge to whom the Fishrot fishing quotas corruption and fraud trial has been assigned is due to indicate in four weeks’ time if he will be staying on the case, or recusing himself from the matter.
Acting judge Kobus Miller on Tuesday reserved his judgement on an application in which one of the accused in the Fishrot case, Ricardo Gustavo, is asking him to step down from the case. Miller postponed the delivery of his judgement to 11 May.
Gustavo is saying he has reason to believe that Miller would be biased against him if he presides over the Fishrot trial, which is pending in the Windhoek High Court.
He also says Miller would not come into the trial with an open mind and would not be impartial in the matter.
Gustavo bases his claims on remarks which Miller made in a judgement in the High Court in July 2020, when he dismissed an appeal by Gustavo against a magistrate’s decision to turn down his first application to be granted bail.
In an affidavit which defence lawyer Trevor Brockerhoff filed at the court in February, Gustavo says comments which Miller made in his bail appeal judgement show the judge made findings against him and indicate that Miller has predetermined the case assigned to him as trial judge.
According to Gustavo, Miller has found that he was employed by a company, Namgomar Pesca, which was not registered, and that he made misrepresentations which prompted the allocation of a fishing quota to Namgomar.
“This preconceived position strikes at the heart of my defence as an employee of Namgomar Pesca Namibia,” Gustavo says.
He added in his affidavit: “In the premise I believe the presiding judge cannot bring an impartial mind to my trial where he has already pronounced himself rejecting my defence without hearing evidence in my case.”
He further complains that Miller stated in his appeal judgement that during his bail hearing the state made out a case against him on which he could be convicted, and says “this shows predetermination as well as bias in favour of the state”.
The state, represented by deputy prosecutor general Ed Marondedze, is neutral on Gustavo’s request for Miller’s recusal and has informed the court it would abide by the court’s ruling on the application.
Miller reserved his judgement after hearing oral arguments from Brockerhoff.
Defence lawyer Florian Beukes, representing former fisheries and marine resources minister Bernhard Esau and his son-in-law Tamson Hatuikulipi, indicated during a previous pretrial court appearance of the accused in February that Esau would also ask for Miller’s recusal, but has not gone ahead with that plan.
Gustavo, Esau and Hatuikulipi are facing charges with former attorney general and justice minister Sacky Shanghala, a business partner of Shanghala, James Hatuikulipi, a former chief executive officer of the state-owned National Fishing Corporation of Namibia (Fishcor), Mike Nghipunya, Pius Mwatelulo, Otneel Shuudifonya, Phillipus Mwapopi and Nigel van Wyk, as well as two companies, 12 close corporations and four trusts represented by individual accused.
They are due to be prosecuted on 42 criminal charges, which include counts of fraud, bribery, corruption, racketeering, money laundering and tax evasion.
The state is alleging that the accused acted together to devise a scheme in which they benefited financially from arrangements to give the Icelandic-owned fishing company group Samherji access to Namibian fishing quotas, through Fishcor and the company Namgomar Pesca Namibia.
According to the state’s allegations against the accused, tens of millions of Namibia dollars in quota usage fees paid by the Samherji group of companies were channelled to the individual accused and corporate entities and trusts represented by them, whereas the fishing quotas to which Samherji had gained access had supposedly been allocated “for governmental objectives in the public interest”.
All of the accused except Gustavo, who was granted bail in an amount of N$800 000 in December, after two years in pretrial detention, are being held in custody.
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