One of the Fishrot accused Ricardo Gustavo says he has not paid his lawyers for services rendered since January 2020 because of the asset restraint order.
Gustavo’s assets and his co-accused – former fisheries minister Bernhard Esau, former justice minister Sacky Shanghala, former Investec boss James Hatuikulipi and his cousin Tamson and Pius Mwatelulo – are subject to a restraint order.
Gustavo’s lawyers Brockerhoff and Associates, filed papers on Friday saying that their client has not been able to pay them since January 2020.
According to the lawyers, N$1,5 million shall suffice for future legal expenses.
“The applicant does not have unrestrained realisable assets which he can dispose to meet his accrued legal expenses; thus, he seeks this order,” the lawyers said.
The lawyers added: “This application is merely concerned with reasonable legal expenses and not the reasonable living expenses of the applicant.”
The prosecutor-general, Martha Imalwa, applied for the asset restraint order in December 2020.
All the parties whose assets have been restraint are fighting to be given access so that they can pay legal fees.
The lawyers have cited Imalwa and the liquidators Bruni and McLaren Liquidators as the respondents.
Gustavo wants the court to release N$2,8m from the restrained funds for his legal expenses.
In his affidavit dated 10 November 2021, Gustavo said section 26 of the Prevention to Organised Crime Act requires him to prove that he cannot pay his expenses for the restrained assets to be released.
Gustavo said he needs N$1 314 211.50 to be released from the assets subject to the interim restraining of property order to meet his outstanding legal expenses.
He further said he needs N$1,5m to be released to meet the legal expenses in the restraint order application criminal trial in the High Court of Windhoek.
Judge Herman Oosthuizen granted Gustavo bail in December last year.
Gustavo paid N$800 000, and the court imposed various stringent conditions, including restricting him mainly to his Finkenstein Estate home.
When Imalwa applied for the asset restraint order, she argued that Gustavo had not met Section 26(2) requirements of the Prevention of Organised Crime Act.
She also argued that Gustavo did not provide full disclosure to the curators and the court.
In addition, Imalwa said those whom Gustavo is supposed to look after had not disclosed their interest in the assets through affidavits.
Lastly, Imalwa pointed out that the legal expenses Gustavo’s lawyers were asking were unreasonable.
The lawyers argue that the High Court can make provision for a person whose assets are a restraint to be able to pay their living expenses and support those whom they are legally liable to look after.
They further said the court could make a provision if satisfied that those a person is legally obliged to look after have disclosed under oath or affirmation all their interests in the property concerned.
The lawyers said the provision could be made if it has proven that neither the person applying for the payment expenses nor any other person they are legally liable to support or maintain can meet the costs.
According to the lawyers, as far as Gustavo’s children were concerned, their failure to file affidavits disclosing their interests in the restrained assets does not constitute a fatality to the application.
“A purposive interpretation of Section 26 of POCA would set out that the applicant and not his children or beneficiaries are to make full disclosure to the curator bonis and court in respect of their interests in the restrained property and to prove further that the applicant cannot meet their legal expenses from the unrestrained assets,” the lawyers said.
As for Imalwa’s assertion that the legal fees were excessive and unreasonable, the lawyers said the Fishrot is the biggest criminal case since independence and requires scrutiny of every document.
“There is no key consideration as to what is deemed to be reasonable. However, it is submitted that the complexity, gravity and magnitude of the cases at hand should be a consideration, along with the seniority of the legal practitioner instructed on the case,” the lawyers further said.
Justice Orben Sibeya will hear the case on 14 February 2022.
