Says he was just an employee of Shanghala and did not know about criminal scheme
Staff Reporter
FISHROT accused Nigel van Wyk, who is implicated in one of the country’s largest fisheries corruption cases, where over N$300 million in kickbacks were allegedly paid to the accused men, has taken the Prosecutor General, Martha Imalwa, to court. He is challenging some of the charges relating to the Prevention of Organised Crime Act brought against him.
Van Wyk was an employee at a private company owned by Shanghala. Prior to this, he had served as a clerk in the Office of the Attorney General while Shanghala held the position of Attorney General. Additionally, he worked as a personal assistant to Shanghala on his farm, where he was alleged to have received N$100,000 from his employer.
“The applicant’s case is that there was no evidence at a prima facie level that would be the basis for the view held by the respondent that the applicant knew or ought reasonably to have known by virtue of his employment with an entity known as Olea Investments Number Nine CC that the monies he received were part of an alleged ongoing criminal activity,” his lawyer Mbanga Siyomunji said.
He further added that there is no dispute that the decision by the respondent, the PG, must meet the requirement of rationality and cannot be arbitrary.
“We submit that the decision is irrational, arbitrary, and unlawful if it is not based upon prima facie evidence. The debate on the merits of the review is therefore limited to a very narrow issue, which is whether or not there is prima facie evidence that the applicant knew or ought reasonably to have known by virtue of his employment that the monies he received from his employer were the proceeds of either of the two alleged criminal enterprises: the National Fishing Corporation of Namibia and Namgomar Pesca Namibia Pty Ltd,” Siyomunji argued.
He added that the Prosecutor General, by way of rule 76, needed to review the record and provide the prima facie evidence that was the basis for the view that Van Wyk knew or ought reasonably to have known about the two alleged criminal enterprises.
“We make the submission that outside of allegations by a witness in a witness statement or any evidence that could establish the inference of knowledge, the receipt of money does not amount to criminal conduct,” Siyomunji said.
He further added that the indictment does not indicate that Van Wyk was involved in a meeting with any of the accused persons when the alleged criminal enterprise was set up, or that he received an email or was copied into an email addressing the criminal enterprise.
“We submit that the test in its simplest form is whether at a prima facie level the docket contained any evidence, in the broad sense, that would show or could be a reasonable basis to infer that the applicant knew or ought reasonably to have known by virtue of his employment that the two alleged criminal enterprises were the source of the money that the applicant received. We have said that the Prevention of Organised Crime Act does not criminalize without more the receipt of money. We submit that the Act criminalizes the receipt of money with knowledge that such money is tainted. The review record provided by the respondent does not include any prima facie evidence, whether a witness statement, an email, minutes of a meeting, or even an allegation that the applicant knew or ought reasonably to have known by virtue of his employment about the two alleged criminal enterprises. In these circumstances, we pray that the application be granted with costs of one instructing and one instructed counsel,” Siyomunji said.
