Zorena Jantze
HIGH Court judge Orben Sibeya has dismissed a restraint order application which seeks to seize the assets of six subsidiary companies of Samherji HF, after he found that the Prosecutor General (PG) failed to charge and extradite the foreign directors of the said companies five years down the line.
The companies the PG sought a restraint order against are 17th to 22nd defendants, namely Esja Holding (Pty) Ltd, Mermaria Seafood (Pty) Ltd, Saga Seafood Namibia (Pty) Ltd, Heinaste Investment (Namibia) (Pty) Ltd, Saga Investment (Pty) Ltd, and Esja Investment (Pty) Ltd. They were represented by Advocate Raymond Heathcote in the matter and form part of a group of companies held by the Icelandic holding company, Samherji, which is implicated in Namibia’s largest fisheries corruption scandal whereby kickbacks were allegedly paid to the accused of over N$300 million in order to give Samherji a competitive edge in accessing governmental objective fishing quotas.
In November 2020, the PG already succeeded in attaining a restraint order against locally accused men such as the former Minister of Justice, Sacky Shanghala, former Minister of Fisheries Bernard Esau and others alongside their companies, which are referred to as the first to 16th defendants in the matter.
Justice Sibeya explained that the 17th to 22nd defendants are companies registered in Namibia. They have, however, for practical purposes in this matter, been referred to as ‘foreign defendants’. This is because their directors are foreigners.
The Samherji foreign directors of the subsidiary companies who face extradition are Ingvar Júlíusson, Egill Helgi Árnason, and Adalsteinn Helgason.
Justice Sibeya, however, said that the PG failed to satisfy the court that the foreign directors are to be charged, and, therefore, it becomes unnecessary to determine the second question whether there are reasonable grounds for believing that a confiscation order may be made against the foreign defendants and thus said that the application for a restraint order is refused with costs.
“The case of the foreign directors is that they will not be extradited to Namibia because an extradition request was already refused on 19 February 2021. They also contend that Iceland does not extradite its own citizens to other countries. They further contend that the foreign directors will not be extradited in time to be charged together with the remaining defendants, as the prosecution’s case is based on common purpose,” Judge Sibeya said.
He added that the PG’s legal counsel, Wim Trengove, argued that the PG has demonstrated serious intention to extradite the foreign directors in order to charge the foreign defendants. This, Trengove submitted, should be sufficient to meet the first requirement that the foreign defendants are to be charged, once the foreign directors are extradited to Namibia.
“As found above, the requirement, ‘is to be charged’, requires more than just serious intention to charge or to extradite. The PG must satisfy the court that the prosecution is imminent…
It is difficult to comprehend that close to five years down the line from 2020, the PG is still engaged in an exercise to locate the foreign directors through Interpol. It further leaves a bitter taste to read from the PG’s papers that the delay to initiate the extradition process was caused by the joinder of the Fishcor and the Namgomar matters, which happened long back on 6 October 2021. I find it difficult to appreciate that the financial investigation by the ACC; their investigation of impossible VAT offences; their evaluation of the information provided by the Bank of Namibia regarding the vessel MN Heinaste; and the verification of information required from Angola delayed the initiation of the extradition process, after which foreign companies could be charged,” Justice Sibeya said.
He added that the lengthy period of time that has passed from 2020, without initiating the extradition process against the foreign directors, leaves more questions than answers.
“It is not certain from the PG’s papers as to when she will commence the extradition process. It is also not certain whether the extradition process will commence within a few months or years. This is, amongst others, due to the fact that Interpol must first locate the whereabouts of the foreign directors. With no clarity in sight as to when the extradition process could commence, can one strictly speaking say that the foreign defendants are to be charged and that the prosecution is imminent? I hold the view that the answer is a glaring NO. I am, therefore, not satisfied that the PG managed to establish on the face of the application that the foreign defendants are to be charged with the offences within the meaning of s 24(1)(b)(i) of POCA,” Sibeya said.
Picture for illustrative purposes only. Photo: Contributed
