By: Justicia Shipena
The Windhoek High Court on Monday struck off the roll former fisheries minster Benhard Esau’s bail application due to missing documents.
Fishrot-accused Esau is one of 10 men who have been languishing in custody after their arrest late 2019. Esau is facing 21 of 42 charges in the Fishrot saga.
The charges are namely; fraud, theft, money laundering, position in a public body to obtain gratification and tax invasion.
Judge Johanna Salionga was set to hear the matter, but Esau’s lawyer Richard Metcalfe said they were not ready for the bail hearing.
Metcalfe said there were some documents and medical reports they needed before the bail application could proceed.
Esau and his son-in-law Tamson Hatuikulipi first launched their bail application last July at the Windhoek Magistrate Court.
However, the application was refused, and the High Court dismissed an appeal earlier this year.
In his previous bail hearing, 62-year-old Esau informed the court he was willing to surrender his passport and report daily at the Witvlei police station.
He said he is prepared to be under house arrest at his farm Dakota in the Gobabis district.
The former minister said he was willing to give up his Dacota farm 35 in the Omaheke region and his house at 91 Papagaaien Road, Hochlandpark in Windhoek as security to the State on top of N$50 000 for his bail.
At the time, Esau stated due to being incarcerated, the times for consultation with lawyers are restricted and don’t provide adequate time to prepare for his cases.
He also complained that the consultations are recorded by prison authorities and could infringe attorney-client privileges.
During his bail hearing, Esau told the court he lost his income and has told the court his family is on the verge of starvation.
He has said to be in arrears to pay accounts such as his municipal and told the court his wife depleted her savings to cater to his family and employees.
He also brought court his medical condition, stating that he is on constant medication.
On the issue of interest of justice, at the time, Esau said he held no previous convictions; hence he said he is not a flight risk.
Previously, Esau has admitted that an agreement was entered into between Angola and Namibia with the companies Namgomar Pesca Namibia Pty Limited and Namgomar Pesca Angola.
Additionally, he admitted that the Marine Resources Act was amended with input by the Ministry of Justice after a High Court decision adding that non-right holders could not be allocated fishing quotas.
The amendment of the act went through the cabinet and was approved and then provided to him.
Thus, he stands because the allocations of quotas were done in accordance with government objectives.
Anti-Corruption Commission (ACC) senior investigating officer Willem Olivier is a senior investigating officer who testified that he obtained statements of witnesses, including a statement about how the cases originated.
He said, according to witnesses, there are several role players involved, and Esau was one of the main role players.
The hearing also revealed that meetings were held, and a meeting took place at the farm of Esau with his co-accused Tamson and James Hatuikilipi.
According to evidence, Esau nominated Namgomar on 14 June 2014 to harvest as part of the agreement.
Upon acceptance of the nomination, Esau allegedly allocated 7 000 metric tons of horse mackerel to Namgomar.
It is alleged that an additional 8 000 metric tons were allocated in December 2014 to his co-accused Ricardo Gustavo.
In December 2015, 8000 metric tons for the 2016 season were again allocated and another 8 000 tons for the 2017 season.
A letter from Esau indicates that 25 000 metric tons were allocated from 2014 to 2016 whilst nothing came from Angola.
Documents indicate that Namgomar had a usage agreement with Icelandic fishing company, Samherji. As per the documents, Samherji instructed Esau on how to allocate quotas and to whom.
Moreover, an investigator seized a cheque made out to B E Farming belonging to Esau.
The cheque of N$150 000 was from Erongo Clearing and Forwarding CC belonging to Tamson. The court said there is no plausible explanation for this cheque.
In the Fishcor case, the investigation revealed that the laws were again amended to award fishing quotas to the entity to receive it under the pretext that it was for governmental objectives.
In this vein, the Namibian cabinet resolved that fishing quotas could be awarded to the Namibian Fish Consumption Promotion Trust for drought relief programs.
The hearing also brought that Esau appointed the chairman of the Fishcor board (James Hatuikilipi.
Manfred Yatamunua, an officer in charge of the Windhoek Correctional Facility in the last bail hearing, testified that the facility is especially suitable for inmates to consult with their lawyers.
Another ACC senior investigating officer, Karel Cloete, testified about Esau’s plot in Otjiwarongo.
Cloete obtained a sworn statement from the conveyancer of the plot. According to the statement, it has been said that Mareen De Klerk approached the conveyancer late in November 2017 regarding Esau’s plot.
A purchase document and letter of transfer were sent to the conveyancer, and the purchase agreement is said to be in the name of Esau and his wife.
Cloete said the conveyancer registered the property in the name of a CC and both Esau and his wife had a 50% stake each.
Cloete testified that the investigation revealed that N$50 000 was initially paid for this property from Sealegs Investments. De Klerk owns Sealegs.
Evidence also reflect that N$10m was paid from the government objective into the account of DHC.
An amount of N$1.7 million of this money was paid for Esau’s plot, and Tamson received about N$16m for government objectives through entities like JTH and Erongo Clearing and Forwarding CC.
When it made its ruling, the court indicated that in terms of the interest of the public, the matter should be considered with the fact that Esau and his co-accused held positions in public offices.
Additionally, the allegations against them involve serious charges where vast amounts of public money should have been available for public benefits.
The evidence alleges that several millions of taxpayers’ money are involved on which there was allegedly also tax evasion.
