Record bail amounts anticipated in ‘fishrot’

29 November 2019 Author   Jeremiah Ndjoze
As the six accused in the ‘fishrot’ saga are set to appear in Court today for their bail application hearings, there is an expectation from the broader public that the court could demand record bail amounts in order for them to be released before the actual trial. This is despite the presence of a high profile South African legal team. 
The accused are being arraigned for their alleged part in a money laundering and fraudulent fishing scandal involving more than N$150 million. The accused in the matter are former justice minister Sakeus 'Sacky' Shanghala and former Investec Asset Management Managing Director James Hatuikulipi who were arrested on Wednesday following their return from Cape Town. Other accused are former fisheries and marine resources minister Bernard Esau, his son in law Tamson ‘Fitty’ Hatuikulipi, Ricardo Gustavo and Pius Mwatetulo.
It has emerged that Esau and Shanghala, who are listed as first and second accused, respectively are represent by Senior Counsel Mike Hellens assisted by Eliaser Nekwaya, while Senior Counsel Dawie Joubert assisted by Tinashe Chibwana will appear for the other four. Both Hellens and Joubert were part of the legal team that represented President Jacob Zuma’s son Duduzane Zuma and the Gupta brothers at the South African state capture inquiry last year.  
One of the highest bail amounts to be posted in Namibian courts was that of Israeli born high-tech industry millionaire Jacob 'Kobi' Alexander, which amounted to N$10 million in 2006.  Alexander was arrested at the request of the United States government.
Namibians are now watching with keen interest to see the bail level demanded by the court in the ‘fishrot’ saga, which has generated international interest.
Expert legal practitioner Shakespeare Masiza, of Masiza Law Chambers, maintained that it is difficult to predict the bail amount due to the differences in the merits of the respective cases that appear before court.
“We have not had a case like this before.  As such it will be difficult to say what bail will be demanded.  Also, the courts look at different attributes of the case set before them before deciding on the appropriate amount. But I must admit that we had a case last week that was lesser in significance but the bail amount went to N$100,000,” Masiza said.
He was however, quick to point out that when awarding bail, the amount is not the most important aspect, but whether or not the accused is a flight risk.
“One looks at how rooted the person is in the country and what he stands to lose should he decide to abscond.  For example, if the matter involves foreign nationals you make sure that an amount is set that he or she cannot leave behind,” Masiza said.
“We are told that the fishrot scandal involves monies to the tune of N$150 million and if the courts decide to set bail to appease the public, the amounts can be high,” Masiza added.
Lawyer Kaijata Kangueehi declined to predict a particular monetary value, but maintained that if the state does not oppose bail, the amount set should be commensurate to the crime committed, but affordable to the accused persons.  The noted attorney, who earlier this month completed a stint as an Acting Judge of the High Court, maintained that bail is not a punitive measure and setting bail requirements that accused persons cannot meet, is tantamount to denying them bail altogether.
“That is why it should be within the accused persons’ reach. The amount is at the discretion of the magistrate,” Kangueehi said.
Kangueehi served as a prosecutor in 1998 and is currently a legal practitioner in private practice.  Following news that the six men are set for their bail hearings, the general public has been making calls for the judiciary to approach the matter firmly. Other members of the public are opposed to the prospect of bail.
“Bail is nonsensical. People lost their bread and butter [due to the monies allegedly stolen in the scandal]. Some people are probably divorced and we have more unstable families which leads to social injustice. This is leading to children not having faith in their parents as provider and protectors,” one commentator posted on social media.
On Wednesday, Inspector General of NamPol, Sebastian Ndeitunga told media reports that the accused will not receive any special treatment.  The handcuffed accused, who are said to be held at a prison is Seeis, east of Windhoek, appeared in the Windhoek magistrate court yesterday. They were ushered into the courts under tight security, albeit donning their sharply tailored suits. Esau and Shanghala are listed in court papers as 1st and 2nd accused respectively. 
They are being arraigned under the contravention of the anti-corruption Act, No 29 of 2004, for alleged involvement in money laundering and organised crime. Their case was postponed to today for bail applications. The proceedings that lasted for about 20 minutes, before the six were escorted back to their holding cells. They are remanded in custody until their reappearance today at 9:00 am for their formal bail hearing.
While referring all queries regarding the matter to the Anti-Corruption Commission of Namibia (ACC), police spokesperson, deputy commissioner Edwin Kanguatjivi, maintained that the suspects were handcuffed for their own safety.
“It is standard procedure. People are handcuffed because they are surrounded by armed police personnel and they might try something that will put their lives or that of the officers at risk,” Kanguatjivi said. “I am not at liberty to comment further on this case.  It is a corruption case, we have agency that deals with corruption and which is handling the matter. My suggestion is that you speak to them,” Kanguatjivi said.
 

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