Eba Kandovazu & Zorena Jantze
THE Fishrot Six will have to spend Christmas behind bars after High Court Judge Kobus Miller reserved judgment until 27 December in the matter where the accused persons brought an urgent application to challenge the legitimacy of the warrants of arrest upon which they were incarcerated.
It is their argument that they are unlawfully detained and the main relief of their application would be to be set free.
Former Fisheries Minister Bernhard Esau, former Minister of Justice Sacky Shanghala and their co-accused James Hatuikulipi, Ricardo Gustavo, Tamson ‘Fitty’ Hatuikulipi and Pius ‘Taxa’ Mwatelulo were not present at the High Court and were represented by South African advocate Tembeka Ngcukaitobi and senior counsel William King, on instructions of Apollus Shimakeleni.
In his arguments, Advocate Ngcukaitobi stated that the accused persons are suffering humiliation due to their continued incarceration and that their warrant of arrests are unlawful and therefore their detention is illegal as well.
He stated that the arrest warrants were unnecessarily issued as there are more trusted means that could have been pursued such as summoning the accused persons to court.
Ngcukaitobi however stated that arresting of the six accused persons was the first avenue pursued whilst it should have been the last resort. He further pressed that the motive of arrests were due to public pressure as well as political intentions.
Pictured: High powered legal teams square off in the Windhoek High Court during the Fishrot Six’s application to have the warrants of arrest upon which they were detained declared null and void. – Photos: Eba Kandovazu 
Pictured: High powered legal teams square off in the Windhoek High Court during the Fishrot Six’s application to have the warrants of arrest upon which they were detained declared null and void. – Photos: Eba Kandovazu
“Police and judges should never use public pressure as a means to isolate people from society. The Namibian constitution should not become subservient to public as well as political pressures,” Ngcukaitobi argued.
He further explained that the accused persons were charged with fraud, corruption and money laundering, none of which, he argued involves violence or pose a threat to public safety.
Ngcukaitobi argued that since 2014, the accused person did not interfere with the process of the investigation and as such, the warrants of arrests should be set aside.
“The Applicants are submitting that their detention at Seeis Police Station is deplorable, and that this application is urgent. There are allegations of abuse, however in their answering affidavit, the police have denied these claims,” Ngcukaitobi said.
He further stated that the magistrate did not apply his discretion when issuing the arrest warrants, as he was not informed that investigations were nowhere near complete, which amounts to premature arrest.
The lawyers argued that the new warrants of arrests amount to contempt of court in light of the fact that there are no new facts added in the issuing of the new warrants of arrests, which are similar to the arrests warrant that was declared invalid and set aside on 24 November by High Court Judge Hannelie Prinsloo.
The respondent’s argument in the High Court was that the current warrants of arrests and the initial one that was set aside are not similar. The initial warrant of arrest was nullified because the charges were not clearly spelled out. This time, the respondents argued that the charges have now properly been spelled out and it has become clear what the offenses are.
Senior Counsel Piet van Wyk on behalf of the respondents argued that there was absolutely no reason why the applicants could not bring forth a formal bail application, why they should not argue their case.
“It is common cause that the applicants have been apprehended, appeared in court and were legally represented. The matter had been rolled from one day to another. On 2 December, by agreement of the parties, they indicated that they are not proceeding with the bail application. They had the opportunity, they were at court and it could have been finalised. Their explanation in their affidavit is insufficient. ” Advocate van Wyk argued.
On the issue of rather summoning the accused persons to appear in court as opposed to them being arrested, Advocate van Wyk maintained that that is not the duty of the Magistrate, but rather the duties of the police, investigating officer and the prosecuting authority.
The Seeis police station Commander, where the suspects are detained denies that they are detained in horrible conditions as alleged.
“The applicants fail to set out the nature of the horrible conditions or what they perceive to be the horrible conditions they allege. I can out rightly dispute such as being baseless and false, given the fact that they are on an hourly basis with the officers. Further on these occasions when we both feed them and visit the cells for purposes of inspection, none of the applicants have made any report to any officer or myself,” the Station Commander said.
The respondents in the matter are represented by Senior Counsel Piet Van Wyk, Advocate Slysken Makando, Nelly Tjihahikika.
