Icelandic subsidiary companies attack PG’s restraint order application
Staff Reporter
THE local subsidiary companies of Icelandic fishing giant, Samherji HF, have come out guns blazing against efforts by the Prosecutor General (PG) to put a restraint order on their assets and positive bank balances, with the companies opining that the prosecutor’s star witness, Jóhannes Stefánsson, is not a reliable witness and has unlawful indemnity, and as such, his evidence should not be accepted in the restraint application.
The Prosecutor General applied for a restraint order under sections 24 and 25 of the Prevention of Organised Crime Act (POCA), 29 of 2004 against Esja Holdings (Pty) Ltd, Mermaria Seafood (Pty) Ltd, Saga Seafood (Pty) Ltd, Heinaste Investment Namibia (Pty) Ltd, Saga Investment (Pty) Ltd, and Esja Investment (Pty) Ltd, which are all local subsidiary companies of Samherji, implicated in the country’s largest fisheries corruption case.
“Stefánsson is a self-confessed criminal who has defrauded and stolen from the foreign defendants, a drug addict and alcoholic habitually abusing alcohol and drugs, who drank throughout the day, usually a bottle of whiskey, and who used cocaine excessively, about 7 times a day and got arrested for possession of drugs… His relationship with Samherji became strained, and his employment with the Samherji Group was ultimately terminated by being fired. But, he had a score to settle with Samherji because he believed that they were trying to poison him and thus had a motive for making false accusations against Samherji. He became delusional and paranoid,” Senior Counsel advocate Raymond Heathcote wrote.
He adds that Stefánsson managed the Namibian business of the Samherji group of companies from 2011 until 2016 but is unlawfully absolved from being charged in the crimes, whilst he acted upon his own frolic.
“The idea of successful fraud is to withhold information of wrongdoing from others. That is exactly what he did. He never told his colleagues within the Samherji group of the corrupt scheme he says he ‘set up’ and ‘administered’ in Namibia. Stefánsson demanded USD 1 million, €240,000, and nearly N$4 million from Samherji to sever ties with Samherji and on top of that, emptied the bank accounts of the fish shops of about N$200,000, with the result that the employees’ salaries could not be paid and Samherji had to step in to pay them. The 17th to 22nd defendants would be entitled to lay criminal charges against him. But what about the unlawful and ultra vires blanket indemnity afforded to him by someone unknown in the ACC?” advocate Heathcote questioned.
He added that it amounts to an irregularity if a court grants a witness – even one who is properly informed about his legal duties in terms of section 204 of the Criminal Proceedings Act, 1977 – a discharge from prosecution before the trial is finished.
“How much more will the irregularity not be if the ultra vires promise is made even before the restraint proceeding commences, and even before any charges were formulated by the PG. The effect of his blanket indemnity or ‘immunity bath’ is fatal to the admissibility of the ‘evidence’ contained in his statement,” advocate Heathcote said.
He added that the assurance or undertaking provided by the ACC to Stefánsson may also constitute, per definition, an offence under Section 34 of the Anti-Corruption Act. This is because the ACC’s assurance of non-prosecution in exchange for the deponent’s cooperation with the investigation may amount to “corruptly offering or promising gratification in the form of a reward not to be prosecuted” without having the power to give such indemnification, and which is given in an unlawful and ultra vires manner.
