Niël Terblanché
WHEN Bernhard Esau, the former Minister of Fisheries along with Sacky Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Ricardo Gustavo and Pius Mwatelulo approach High Court in Windhoek with their urgent application to have the charges and warrants of arrest on which they were taken into custody at the end of November, declared void and to be set aside, they will face strong opposition.
In his founding affidavit the former fisheries minister cites ulterior political motives and gross violations of their rights as entrenched in Article 8 of the Namibian Constitution as the basis for the urgency of the application. He also alleges that he was kidnapped from the Seeis Police Station and that he was forced to ride in the back of a police van on rough roads when investigating officers transported them to various destinations execute search warrants.
Martha Imalwa, the Prosecutor General of Namibia, in her affidavit in response to Esau’s founding affidavit said she opposes application on the grounds that some of her fellow respondents applied for warrants of arrest and that she made a decision to prosecute them notwithstanding the fact that the investigation into the matter is still underway.
“The basis upon which the Applicants have lodged the current proceedings is premised on an erroneous understanding of the law.”
Imalwa stated in her affidavit that the Applicants abandoned their formal bail application when the appeared in the Windhoek Magistrate’s Court and that they agreed to the date of postponement.
“It is my humble belief that if the Applicants had any qualms with the process that led to their arrest and subsequent appearance In the Magistrate’s Cour, They should have challenged that process or any part thereof before appearing in the Magistrate’s Court. Any decisions by this court, regarding the prosecutorial decision under case number WHK-CRM-26801/2019 would amount to an interference with the jurisdiction of a competent court which is seized with the matter.”
The Prosecutor General further stated that what the Applicants seek is to stall a criminal matter by way of the review application.
“The high Court, in these proceedings will be sitting as a Civil Court and therefore has no jurisdiction to adjudicate over a criminal matter. In this regard it is therefore a wrong forum and it would be perpetrating an act of usurpation of powers of the criminal court. In any event the orders sought are incompetent.”
The Station Commander of the Seeis Police Station in an affidavit in response to that of Esau’s stated that the application has no grounds for urgency and that it should be struck from the roll with costs to the applicants.
Warrant Officer Shetunyenga Shetunyenga in his affidavit denies all the allegations made by the applicants that they are mistreated are false.
“The applicants fail to set out the nature of the horrible conditions or what they perceive to be the horrible conditions they allege.”
Warrant Officer Shetunyenga stated that the Applicants failed to meet a single requirement under Rule 73 of the High Court’s Rules.
