Windhoek High Court judge Hanellie Prinsloo on Sunday ordered the release of former fisheries minister Bernhard Esau who was arrested on Saturday because the warrant of arrest was invalid.
Esau had approached the High Court Sunday morning seeking an order for his release citing illegal arrest and an unlawful warrant of arrest.
Prinsloo had dismissed Esau’s application Sunday morning saying that she needed to give the ACC time to respond the application.
She, however, overturned her decision later Sunday afternoon when she ruled that the warrant of arrest issued by the Magistrate of Windhoek on 23 November 2019 was invalid and should be set aside.
The Otjomuise police commander was also ordered to release Esau with immediate effect and the case was also struck off the roll.
Esau was arrested in Windhoek on Saturday in connection with a corruption case that involves N$150m in bribe money paid by an Icelandic fishing company, Samherji, between 2014 and 2018. The money was in exchange for fishing quotas.
The Anti-Corruption Commission was investigating allegations of corrupt practices, money laundering, and fraud in relation to the awarding of quotas to a Namibian business entity, Namgomar Pesca (Namibia) Pty Ltd and several other persons and entities in Namibia, Cyprus, Iceland, Angola, Norway, Mauritius and the United Arab Emirates.
The former minister is accused together with former justice minister Sacky Shanghala, former Investec Namibia managing director James Hatuikulipi and his cousin Tamson Fitty Hatuikulipi, who is also Esau’s son-in-law.
The other two are the suspended Investec manager Ricardo Gustavo and Fishcor chief executive officer Mike Nghipunya.
Gustavo, who was arrested together with Esau and Saturday, did not seek any court relief and he is currently in custody.
Esau further said that a warrant of arrest issued under Section 43 of the Criminal Procedure Act shall direct that the person described in the warrant shall be arrested by a police officer in respect of the offence set out in the
warrant and that he should be brought before a lower court in accordance with the provisions of section 50.
Such a warrant of arrest, he said, maybe issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.”
According to Esau, an ACC officer can only arrest a suspect without a warrant of arrest any person whom he/ she reasonably suspects has committed or is about to commit an offence under the section 28 Section 43 of the Criminal Procedure Act (CPA).
“The ACC investigators may not execute a warrant of arrest as they are not peace officers as contemplated by the CPA nor have, they been declared peace officers in terms of section 334 (1) of the CPA. In terms of section 44 of the CPA only a peace officer may execute a warrant of arrest,” he further argues.
