Fishrot Six want seized cash, cars, computers, documents back
By Marianne Nghidengwa
FORMER fisheries minister Bernhard Esau, ex-justice minister Sacky Shanghala and four other trial-awaiting inmates implicated in the Fishrot scandal have again turned to the Windhoek High Court on an urgent basis to have two sets of search warrants overturned.
The second urgent application comes after their first application to be released from custody and have all charges against them dropped thrown out in December.
The new case is set to be heard on 4 February.
In their second urgent application, the fishrot six are asking the High Court to have documents, cash, computers, vehicles and goods seized by law enforcement officers returned to them immediately, and for these not to be used in court. They are also are asking the court to set aside the search warrants, saying they are vague, overbroad and unintelligible.
Alongside the two disgraced ex-ministers Esau and Shanghala, their alleged suspected accomplices James Hatuikulipi, Ricardo Gustavo, Tamson Hatuikulipi and Pius Mwatelulo want the court to set aside and declare unlawful the search warrants, as well as the search and seizure of their properties, and moreover to set aside any evidence that may have been obtained in the process.
The search warrants issued by the Windhoek and Gobabis Magistrate Courts were executed on 23 November 2019, and between 9 and 15 December at several residences. Items, including vehicles, cellphones, computers, cash and wills were seized.
The suspects, who allegedly cost the country millions of dollars in lost revenue and resources, are challenging the process used in applying for the warrants, the actual search and conduct of the Anti-Corruption Commission (ACC) and Namibian Police in executing the warrants.
Esau filed the lawsuit on behalf of the six, arguing that there was no application for a search warrant, as there was no affidavit as required by law. Their lawyers, Murorua Kurtz Kasper Inc., wrote to ACC director general Paulus Noa on 31 December, saying they intended to challenge the lawfulness of the execution of the warrants used.
"We are instructed to demand as we hereby do all items searched and seized as a consequence of the joint operation of ACC and Nampol officials by end of business Friday, 3 January 2020."
"It is our view that the execution of the search warrants are unlawful on amongst the following grounds: failure to provide an inventory list; failure to provide receipts despite making undertakings to do so; abuse of search warrant procedure in that officers of ACC seized a number of items and documents not related to items specified in the search warrant issued on 23 November 2019 and 9 December 2019; the search warrants are vague, overbroad and unintelligible in that it is not specific as to the items to be searched and seized; failure to specify the nature of the offences against our clients.
They also wrote to the Windhoek and Gobabis magistrates concerned, demanding reasons for authorising the search warrants. Esau said despite the ACC revealing that it had been investigating the matter since 2014, the warrants seemed to be a mere fishing expedition.
He claimed ACC officers
abused the warrants, specifically during the search of his residence on 23 November 2019. He said although the search warrant only authorised the search for a cellphone, officers took four phones and government documents not related to the items specified in the warrant.
He also complained that on 12 December 2019, a search carried out at his Farm Dakota resulted in the seizure of N$60 000 belonging to his son and a further N$18 000 belonging to the farm. Salaries and wage books were also seized.
“I confirm that the keys to a double cab registration, W858N, were seized and to my understanding that vehicle has been seized on the basis of the search warrant. In addition, my draft will was seized together with farm livestock records and receipts in a blue bag, as well as other documents. The seizures fell well beyond the terms of the search warrant.”
Shanghala’s two vehicles, including a Range Rover Vogue (registration N5400W) and a Mercedes Benz E400 registration (N3504W) were also seized, including his personal will and wills of other private persons not directly linked to the investigation. Esau claimed the seizures exceeded the authority granted.
As for Gustavo, two of his vehicles were seized at his residence, in addition to a Glock 40 mm handgun with full magazine, two cellphones and money – both in US and Namibian currency. “It is evident that the search warrant is now some sort of asset preservation tool,” Esau claimed.
As for Esau’s son-in-law, Tamson, his truck logbooks and life policies were seized while his motor vehicles were parked with strict instructions that they should not be driven or removed. His cousin, former Fishcor board chairman James’ bank cards were seized.
As for Mwatelulo, the officers on 13 December 2019 seized his business proposals related to a close corporation in which he holds members interest, as well as his girlfriend's diary.
“Such seizure is an absolute invasion of the right to privacy and the right to dignity. The officers additionally seized bank deposit slips, personal tax returns (even though these are not mentioned in the search warrant), a lease agreement in respect of a close corporation in which he holds members interests and a proof of payment slip for tax.”
Esau said the case is urgent because there is an ongoing violation of their constitutional rights. “In addition, the conduct of the respondents has been harsh and punitive and amounts to abuse of rights and powers. It is in the interest of justice that the court intervenes at this stage before it is too late.”
He said that the search warrants violated their right to dignity and privacy. He made reference to a search that took place at his residence on 23 November 2019, where officers allegedly searched in the drawers in his bedroom, as well as the bedrooms of his children. He said some drawers contained his undergarments, his wife's undergarments, as well as that of his children. His private study, he complained, was also searched.
He would not be able to obtain substantial redress in due course, neither will his family and employees, he said, and fears that over a six-month period, his credit record would be damaged, his capacity to pay legal and medical bills, as well as family maintenance infringed, and his right to property violated.
"I suffer from hypertension and high blood pressure. When I came back from my ordeal on 12 December 2019 at the hands of the officers of the respondent my health was not good. I need funds for medical care and the unlawful interference with my finances compromises my health and places my life at risk."
The accused have also asked the High Court for an order reviewing, correcting and setting aside the decision to apply for the search warrants, the granting and execution of the warrants, as well as to have their goods and documents (including memory sticks, draft wills, vehicles, notebooks, computers and data) returned with any copies and or duplications. They also want the respondents to pay the cost of the lawsuit.