Zorena Jantze
FISHROT accused former minister of fisheries, Bernhardt Esau, and his wife, Swamma Esau, have been granted access to N$3.4 million from their restrained assets and frozen bank accounts to pay for current and future legal costs, after winning a High Court case against the Prosecutor General and liquidators assigned to administer their restrained property and accounts.
The judgement was delivered by High Court Judge Beatrix de Jager, who said that the applicants (the Esaus) met all the requirements for the order to be made. De Jager said that the court is satisfied that the applicants and the persons they are legally liable to support or maintain disclosed under oath their interest in the property from which provision is to be made and submitted a sworn and full statement of all their assets and liabilities.
“The court is further satisfied that the applicants and the persons they are legally liable to support or maintain cannot meet the expenses concerned out of their unrestrained property as no such property was established. What remains is whether the legal expenses sought are reasonable. The applicants argue that the legal expenses sought are reasonable, and once taxed, the expenses will be deemed reasonable. Considering the facts supporting the provision sought for legal expenses, the amount appears reasonable. In and of itself, the amount is substantial, but not unreasonable compared to the value of the applicants’ estate. The applicants’ (unencumbered) immovable property is about N$21.7 million,” De Jager said in her judgment.
Providing background in the case, the judge said that the first respondent, Martha Imalwa, the Prosecutor General, obtained a restraint order under section 25 of the Prevention of Organised Crime Act 29 of 2004 (POCA) over all the applicants’ property, prohibiting them from dealing with their assets.
Judge De Jager said that the Esaus made an application under section 26(1)(b) of the POCA for provision to be made from the restrained property to pay the first applicant’s reasonable legal expenses incurred thus far in opposing the section 25 application and in the related criminal trial and to secure payment for his future legal costs.
De Jager explained that the requirements set out in subsection 26(2)(a) and (b) create preconditions to exercising the power in section 26(1)(b), without which that power does not exist.
She added that an applicant is required to disclose under oath or affirmation all their interest in the property from which provision is to be made and submit to the court a sworn and full statement of all their assets and liabilities, and prove that they cannot meet the expenses concerned out of their unrestrained property.
“The court held that, once the jurisdictional requirements, read with the restraint order, are met, the court has no discretion but to grant the order. The court has discretion, subject to sections 95(3) and 96 read with regulation 8, on the amount of the expenses to be provided for,” De Jager said.
The judge said that the provision sought for payment of the first applicant’s legal expenses appears reasonable but, due to the sheer magnitude of the proceedings and the costs occasioned thereby, and further because of the application under section 95(1), the court makes the order for provision for payment of the legal expenses from the restrained property subject to taxation under regulation 8 of the Regulations made under the POCA from the outset and grants the first respondent’s unopposed conditional counter-application 95(1).
“The court makes the order for provision for payment of the legal expenses from the restrained property subject to taxation under regulation 8 of the Regulations made under the POCA from the outset and grants the first respondent’s unopposed conditional counter-application. An amount of N$1,235,738.44 or such lesser amount as may be allowed after taxation, whichever is less, must be released from the applicants’ restrained property to meet the first applicant’s current reasonable legal expenses. An amount of N$2,196,000 or such lesser amount as may be allowed after taxation, whichever is less, must be released from the applicants’ restrained property to meet the first applicant’s future reasonable legal expenses. The amounts in paragraphs 1 and 2 above must be paid by the second and third respondents or their successor in title into the business trust account of Metcalfe Beukes Attorneys,” the judge read.
