Staff Writer
Three Fishrot accused have withdrawn their applications in which they wanted the court to allow them access to restrained assets to enable them to pay legal costs.
Former fisheries minister Bernhardt Esau, his son-in-law Tamson Hatuikulipi and Ricardo Gustavo filed notices per section 26 of the Prevention of Organised Crime Act (POCA) on Tuesday.
Prosecutor-General Martha Imalwa obtained a restraining order in November 2020 over a wide range of assets linked to six accused in the Fishrot case, their wives, 15 companies and close corporations in which they have an interest.
“Kindly take note that the above applicants herewith withdraw their application for legal expenses as filed on 8 November 2021 under case number HC-MD-CIV-MOT-POCA-2020/00429,” the notice.
They did not give reasons for withdrawing the applications.
Esau wanted the court to release N$1 928 069 from the restrained assets for his legal expenses.
The former minister said he wanted the court to order the release of N$1,5m to meet his and son-in-law Tamson Hatuikulipi’s “reasonable legal expenses in the main restraint application”.
He was also asking the court to release a further N$428 069 to pay his outstanding 26 October 2021 legal fees.
“I cannot pay my legal expenses incurred to date, both regarding the main POCA application and the pending criminal case to which the POCA offences relate. There is no unrestrained property which enables me to settle my outside legal bill and pat a deposit for my upcoming trial,” he said.
Esau also said the outstanding bill for Tamson was N$856 139.
Gustavo’s lawyer Brockerhoff & Associates said N$1.5 million would suffice for future legal expenses.
Imalwa opposed the applications saying some of the Fishrot accused who wanted their assets freed to enable them to raise legal fees did not disclose everything they own.
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 controlled 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.
Imalwa further said this account had 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 had 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. In other words, the defendants must prove that no other assets are available to meet their costs.
