Prosecutor-General Martha Imalwa says some of the Fishrot accused who want their assets freed to enable them to raise legal fees did not disclose everything they own.
Imalwa was responding to an application by former fisheries minister Bernhard Esau, his son-in-law Tamson Hatuikulipi and Ricardo Gustavo.
According to Imalwa, Esau’s bank accounts receive a monthly deposit of approximately N$75 000 and a payment of N$ 162 602.69.
The Prosecutor-General further said Esau’s wife Swamma controls these accounts.
“She receives the fifth defendant’s monthly pension, pays the household living expenses, and runs the family farming business,” Imalwa said.
She added that Esau has an undisclosed bank account with a positive balance of over N$ 400 000,00.
Imalwa further said this account has received at least four payments from an unknown source since the restraint order was granted.
Esau also has an undisclosed unit trust account with more than N$ 1 million.
Imalwa said Tamson did not also disclose some of his assets and that he owns properties whose income was diverted to his wife’s bank accounts.
The Prosecutor-General also said that Tamson did not disclose the payment of expenses by his wife regarding the properties he owns.
In addition, Imalwa said Tamson did not disclose the purchases of vehicles with funds from one of his companies, JHT, but now registered in his wife’s name.
Tamson’s wife, the Prosecutor-General said, also did not disclose her interest in the property subject to the restraint order and her assets and liabilities, despite being required to do so by section 26 of the Protection of Organised Crime Act (POCA).
According to the Prosecutor-General, Gustavo did not disclose property or income and expenditure to the curators, as required by the restraint order, despite the curator bonis’ requests and follow-ups.
Gustavo, she stated, chose not to file a replying affidavit to explain his failure.
“For this reason alone, his application for payment of legal expenses must fail. This is because, as explained above, in the absence of the first defendant’s formal disclosures required by the restraint order, the court has no yardstick against which to measure the first defendant’s substantive disclosures made in his affidavit in support of the application for payment of expenses, such as they are,” Imalwa said.
Lastly, Imalwa said Gustavo told the court that he received income from family members to look after his children.
“He was offered employment and will use the income to pay for his legal costs and look after himself and his children. He has a vehicle in his possession that has not been seized,” Imalwa said.
Imalwa said the court must make three factual findings before it has any discretion to order the payment of legal expenses from assets subject to the restraint order.
She pointed out that the first is that the defendants and their dependents have disclosed on oath (or affirmation) all their interests in their realisable property.
The second was that the defendants and their dependents have submitted a sworn and complete statement of their assets and liabilities.
The third was that the court must be satisfied that the defendants cannot meet the claimed legal expenses other than the release of realisable property from the restraint for this purpose. In other words, the defendants must prove that no other assets are available to meet their expenses.