The fishrot6 have appealed to the Supreme Court against the Windhoek High Court’s ruling that their application to have their arrests declared unlawful did not meet the requirements to be heard as an urgent matter.
It is not yet clear when the application dated 3 Jan. 2020 will be heard by the Supreme Court but the fishrot6 have indicated that they shall apply for an expedited hearing date because of the continuing infringements of their rights, deteriorating personal circumstances and the negative impact caused by their illegal detention on their families and financials.
The 6 – Bernhard Esau (61), Sacky Shanghala (42), the former Investec managers James Hatuikulipi (44), and Ricardo Gustavo (44), Esau’s son-in-law Tamson ‘Fitty’ Hatuikulipi (38), and Pius Mwatelulo (31) – are now detained at the Windhoek Central Correctional Facility.
In Dec. last year, they filed an urgent application with the High Court to have their arrests declared unlawful, but they lost the case.
The six, who were represented by top South African advocate
Tembeka Ngcukaitobi and senior counsel William King, also wanted the High Court to order that they should be released from custody immediately.
Now they want the Supreme Court to “in the interest of justice to engage with the matter at this stage and correctly decide the law, the applicable standard and the test to be applied in future urgent applications where there are implications for personal liberty”.
Acting Judge Kobus Miller ruled on 27 Dec. 2019 that the application did not meet the requirements to be heard as an urgent matter. Miller ordered that the case should be struck off the court roll, and ordered the Fsihrot6 to pay their opponents’ legal costs in the matter.
One of the reasons Miller gave was that the application had been delayed beyond what was reasonable but the fishrot6 argue that the High Court’s approach conflicts with established precent that recognises the inherent urgency of cases involving life, limb and liberty.
According to the fishrot6: (i) the judge failed to take into account the established position under common law that matters involving the deprivation of personal liberty are inherently urgent.
(ii) the approach taken in the judgement notes that the mere deprivation of liberty does not on its own render the matter urgent is wrong in law.
(iii) the deprivation of liberty is frowned upon under the common law and bearing in mind the provisions of the Constitution, particularly article 7, Courts have a duty to entertain all cases involving the deprivation of liberty on an urgent basis.
This applies whether or not the matter involves bail or a civil application for setting aside of invalid warrants.
(iv) The judge’s approach to allowing an invalid warrant to constitute the basis for the deprivation of liberty by mere striking off the application from the roll.
(v) the judge failed to properly appreciate the full extent of Article 7 of the Namibian Constitution because it was never the fishrot6’s argument that it constituted an absolute right but that the deprivation of liberty cannot be justified by reference to invalid warrants.
(vi) It was pointed out that there was uncontroverted evidence of violations fo rights which occurred in the course of the detention which were never satisfactorily answered.