High Court judge Orben Sibeya is expected to give a ruling in three weeks’ time on a bid to get him to step down from a case in which assets connected to the men charged in the Fishrot fishing quotas corruption scandal have in effect been frozen through a court order.
After hearing oral arguments in the Windhoek High Court yesterday, Sibeya said he would on 3 June deliver his ruling on an application for his recusal from a Prevention of Organised Crime Act (Poca) case involving the Fishrot accused and corporate entities and trusts connected to them.
Former minister of fisheries and marine resources Bernhard Esau, his son-in-law Tamson Hatuikulipi and three close corporations of which Hatuikulipi is a member, Esau’s wife, Swamma Esau, his daughter Ndapandula Hatuikulipi, and a former senior employee of Investec Asset Management in Namibia, Ricardo Gustavo, have asked Sibeya to step down from the case in which he on 13 November last year granted a provisional restraint order pertaining to assets belonging to them.
Prosecutor general Martha Imalwa, who applied for the property restraint order, is opposing the application for Sibeya’s recusal.
In an affidavit filed at the court, Hatuikulipi claims Sibeya had prior knowledge of some facts in the Poca case, as he was in early November one of the judges who initially were due to hear an appeal from Esau and Hatuikulipi against a magistrate’s refusal in July last year to grant them bail.
Hatuikulipi is also claiming it was impossible for Sibeya to have read all of the documents in the Poca case, which was assigned to him only a few hours before he heard arguments in the matter, and that as a result of that he could not have applied his mind fairly to the matter. Gustavo is making the same claim.
The sworn statement in which Imalwa motivated her application for a restraint order over property owned by six of the men charged in connection with the Fishrot scandal runs over 255 pages, while other documents filed in the matter bring the case record close to 7 000 pages.
Gustavo also alleges in his affidavit that Sibeya has a conflict of interest, as he was employed in the Office of the Prosecutor General for about 13 years before he went into private practice in 2011, was involved in the creation of the office’s unit dealing with Poca cases, and has also represented a son of Imalwa in a criminal case during 2012 to 2014.
According to Gustavo, he has a reasonable apprehension of bias on the part of the judge. Hatuikulipi also said “a reasonable person may believe that the impartiality of [the judge] might be affected”.
Imalwa is disputing their claims in an answering statement filed at the court.
She said Sibeya was the head of her office’s Corruption and Money Laundering Unit, and that a distinct Asset Forfeiture Unit was established in 2011 under another staff member of her office.
Imalwa further denied there was a continued close relationship between herself and Sibeya, and said Gustavo had made “serious allegations directed at my integrity and indeed the integrity of the Office of the Prosecutor General” in that regard.
She said it would have been sufficient for the judge to have read only the founding affidavits in the Poca case, in which the facts on which the property restraint application was based were set out, and that the allegation that Sibeya did not apply his mind was speculation.
In the case before the court, there could not be a reasonable apprehension of bias on Sibeya’s part, Imalwa said.
Esau and Hatuikulipi were represented by lawyers Richard Metcalfe and Florian Beukes during the hearing of oral arguments yesterday, while Trevor Brockerhoff represented Gustavo.
Sakeus Akweenda and Annerie Keulder, instructed by government lawyer Neli Tjahikika, represented the prosecutor general.