Fishrot trial judge stays on case

The Fishrot fishing quotas fraud, corruption and racketeering trial will not be proceeding until April at least, following acting judge Moses Chinhengo’s dismissal of an application for his recusal from the trial.

Chinhengo turned down an application by one of the accused in the trial, Nigel van Wyk, for his recusal in a judgement delivered in the High Court at Windhoek Correctional Facility yesterday.

Chinhengo found that it was not unreasonable for him to have required Van Wyk to plead to the charges he is facing during court proceedings in December last year.

With Van Wyk having stated that he would be denying guilt on all of the charges he is facing, requiring him to plead to the charges while his defence lawyer, Mbanga Siyomunji, was not present in court could not possibly have prejudiced him, Chinhengo said.

On Van Wyk’s contention that he should not have been asked to give his pleas to the first of the charges he is facing, since he has filed an application in which he is asking the High Court to quash the charges, Chinhengo said the pending review application also did not preclude the court from continuing with plea proceedings in December.

He noted that he took into account that four of Van Wyk’s co-accused informed the court they were ready for their trial to proceed.

Chinhengo also noted that before he directed that plea proceedings should proceed, he considered that the accused in the matter had been in custody “for far too long” without their trial having started.

Most of the accused have been in custody for more than four years by now, and this cannot be in their own interest or the interest of the public or the administration of justice, Chinhengo said.

He further said there is a presumption that a judge of a superior court would be impartial. That presumption, based on an oath to administer justice impartially and without fear or favour, is not easily dislodged, Chinhengo stated. His refusal of a postponement of plea proceedings in December cannot in itself be a basis for a recusal application, he said as well.

On the fact that four of the accused – former justice minister and attorney general Sacky Shanghala, James Hatuikulipi, Ricardo Gustavo and Pius Mwatelulo – are without legal representation at this stage, as they are not able to pay for lawyers’ services while their assets have been placed under a property restraint order, Chinhengo noted that he has not been asked to order that legal aid should be granted to them.

On the refusal of some of the accused to give their pleas to the charges that were put to them before Van Wyk’s recusal application brought the plea proceedings to a halt, Chinhengo said in terms of the Criminal Procedure Act a court has to note a plea of not guilty on behalf of an accused person who refuses to plead to a charge. That was what he also did in December.

The criminal justice system is not optional, and an accused cannot try to delay a trial by refusing to plead, he said.

Chinhengo closed off his judgement by saying that Siyomunji’s “dereliction of duty” – he was absent when oral arguments on Van Wyk’s recusal application were heard on 1 March – should be sanctioned, and that he may not charge any fees for the recusal application.

Siyomunji responded by saying that he did the recusal application free of charge in any event.

Siyomunji also notified the judge that he had instructions to apply for permission to appeal against Chinhengo’s dismissal of the application for his recusal.

In terms of the law, an application for leave to appeal should be filed within two weeks after the delivery of the judgement.

With an application for leave to appeal due to be heard and decided before trial proceedings can continue, Chinhengo postponed the matter to 3 April.

The 10 individuals and two companies, 12 close corporations and four trusts arraigned before Chinhengo are due to be prosecuted on 42 charges based on allegations that they had been involved in a multimillion-dollar scheme to illegally benefit from Namibian fishing quotas.

Van Wyk is the only one of the accused that is free on bail.