A TEAM of lawyers on behalf of Bernhard Esau, the former fisheries minister approached the High Court in Windhoek with an urgent application to have him released from custody on the grounds that the warrant of arrest issued in his name was invalid.
In this regard the Tinashe Chibwana and Eliaser Nekwaya approached the High court on an urgent basis to convince the Judge Hannelie Prinsloo, who was called out earlier on Sunday morning, that the investigator of the Anti-Corruption Commission who applied for the Esau’s warrant of arrest was not authorized to do so and that the warrant on which the former minister was arrested did not state the specific offence committed and that simply using the word “corruption” on the document is nonsensical.
The lawyers argued that the former minister was arrested on the basis of a warrant of arrest applied for by a functionary who does not have the jurisdiction and competence to apply for a warrant of arrest from a Windhoek magistrate.
They argued that several other reasons exist why the warrant of arrest is invalid and that the applicant has demonstrated a strong case that his needs to be protected.
In his application Esau stated that there was absolutely no reason for him to be arrested.
“There is no evidence or reason to fear that he would have jeopardised a police investigation in any way if he was not arrested. In fact, the arrest was not necessary. Given the importance of the right to liberty and the presumption of innocence, the applicant will suffer grave and irreparable harm if he continues being detained in the police cells. Because of his age and the position that he had, he argues that he will suffer irreparable harm in that his freedom and liberty are being taken away on the basis of an invalid process.”
They stated that attempts to find a Magistrate in order to have the applicant released on bail was futile and that the situation contributed to the continuous invasive, intrusive and irreparable harm on the applicant’s rights to liberty, freedom of movement and his dignity. Esau’s lawyers also informed the court that they spent most of Saturday to find a way to have the applicant freed because the warrant of arrest used by members of the Anti-Corruption Commission is invalid.
“In so far as it relates to alternative remedy, we submit that the applicant will not obtain an alternative satisfactory remedy on an urgent basis other than attacking the arrest which is, in any event, presumed to be unlawful and given the nature of the right concerned and the violation complained of.”
They further argued that the arresting officer did not make any allegations that he fears that applicant would run away or abscond. In this regard the legal representatives informed the court that the applicant have substantial assets in Namibia; his family is in Namibia; his children are in Namibia and that he simply have no reason to run away.
After hearing the arguments of Esau’s legal representatives, Judge Hannelie Prinsloo ruled that the respondents be afforded an opportunity to prepare a proper response to the urgent application.
Judge Prinsloo ordered that the respondents file their heads of argument in reply to the application on Monday and that the applicant file a reply to the response no later than 10:00 Tuesday morning before postponing the matter until Tuesday.
In the meantime all border posts in Namibia has been informed to be on the lookout for Sacky Shanghala, James Hatuikulipi and Tamson Hatuikulipi as warrants of arrest in their names of still need to be executed.