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Magistrate misdirected himself, says Metcalfe

Magistrate misdirected himself, says Metcalfe

Staff Reporter


THE lawyer of former fisheries minister Benard Esau and his son-in-law Tamson ‘Fitty’ Hatuikulipi told the High Court today that Magistrate Eduard Kesslau misdirected himself when he denied his clients bail in the lower courts.


The two corruption accused are currently appealing their bail judgment before Judges Marlene Tomasi and Herman January.


According to Richard Metcalfe, his clients opting to provide sworn statements instead of testifying in person and undergoing cross examination is a justifiable move.


FIGHTING FOR BAIL: Bernard Esau and Tamson Hatuikulipi. Video: Eba Kandovazu


He was responding to Magistrate Kesslau finding fault in the accused not taking the court into their confidence by going on the stand to answer question and give further clarity on details contained in their affidavits.


Metcalfe further contends that there were no actual charges against his clients at the time of their bail application.


“There were no actual charges against my clients. In any event, how could they have taken the court into their confidence if they didn’t know what charges exactly they were charged with? It serves little to no purpose to say how they could have done so when there were no charges. The particulars of the charges were unknown to them at the time. It is an accused’s right not to incriminate themselves. My clients provided lengthy affidavits with voluminous evidence to support them. In fact, it took two days to read the statements into the record,” Metcalfe said.


The lawyer in his argument cited the Katrina Hanse-Himarwa judgment by High Court Judge Christie Liebenberg when he said that public expectation is not synonymous with public interest, as it would amount to an unfair trial.


He further argued that his clients are not a danger to society and that they have been law abiding citizens prior to their arrests.


“The Magistrate misdirected himself in his findings and instead indulged into his emotions instead of his intellect in coming to the conclusion. There is no evidence that my clients are a threat to society,” Metcalfe argued.


He also indicated to the court that the investigating officer in the matter during bail admitted that he is unaware of the value of horse mackerel fishing, that he was clueless as to the pricing and was not an expert in the fishing industry.


Commenting on the tax fraud allegations, Metcalfe said there was no such evidence against his clients, that the state was, during the bail application, determined to use all that to persuade the Magistrate into denying his clients bail.


Tomorrow the State is expected to argue its grounds as to the bail refusal.


Esau and Hatuikulipi are charged alongside former justice minister, Sacky Shanghala, former Investec Asset management Managing Director, James Hatuikulipi, his colleague, Ricardo Gustavo, former Fishcor CEO, Mike Nghipunya and businessman Pius Mwatelula.


They were arrested in November 2019 and have been in jail ever since.


Hesekiel Ipinge is representing the state.


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