Shanghala jumps on recusal bandwagon
Former minister of justice and attorney general Sacky Shanghala and two of his co-accused in the Fishrot trial have joined Ricardo Gustavo in the petition to appeal Windhoek High Court Judge Kobus Miller’s decision not to recuse himself from the trial for perceived bias.
Trevor Brockerhoff, Gustavo’s lawyer, lodged an application for judge Miller to recuse himself but the judge refused and dismissed a subsequent application for leave to appeal to the Supreme Court against his refusal.
Brockerhoff then submitted a petition to the Chief Justice to hear the appeal and submitted his arguments on 17 November, while Richard Metcalfe, on behalf of Shanghala, James Hatuikulipi and Pius Mwatelulo submitted their arguments last week and are now waiting on a ruling from the Chief Justice.
Windhoek High Court Judge Claudia Claasen postponed the matter yesterday on behalf of Judge Miller to 14 February next year for another status hearing to determine the way forward, depending on the outcome of the petition.
B rocker hoff and Met cal fe are questioning the neutrality of Judge Miller in the Fishrot matter, as he already made damaging remarks in a bail appeal ruling in 2021.
According to Brockerhoff, the judge in his own words stated, “the learned magistrate did not make a finding in so many words that a prima facie case is made out. A reading of the evidence of Mr Cloete, however, establishes a prima facie case against the appellant”.
He said this surely proves that judge Miller already read into the evidence on a factual basis, whereas a learned magistrate did not make such a factual finding as a court of the first instance.
Brockerhoff further argued it is established law that a court of appeal is bound by the factual findings of the court of the first instance and cannot merely interfere or make alternate findings without any basis.
This, he said, was exactly what judge Miller did in the bail appeal, which he resided over and clearly shows a predetermination or at least a potential for bias against his client.
He went on to say that Judge Miller continued in the same vein by pronouncing: “More pointedly, the evidence establishes that the appellant purported to be a director of an entity, called Namgomar Pesca (Pty) Ltd, and made misrepresentations as to the fact such entity in fact existed, which entitled it to receive fishing quotas. The prima facie case is that these misrepresentations were an important part in the greater scheme, allegedly hatched by the appellant and his co-accused”. Gustavo, former minister of fisheries Bernhard Esau, Shanghala, James, Tamson Hatuikulipi, Mwatelulo, Nigel Van Wyk, Otneel Shuudifonya and Phillipus Mwapopi is charged with corruptly receiving payments of at least N$103.6 million to give a competitive advantage to Icelandic fishing company Samherji in securing access to horse mackerel quotas in Namibia.
They are facing more than 40 counts, including racketeering, contravening the Anti-Corruption Act, conspiracy, corruptly using an office to receive gratification, fraud, theft and money laundering, as well as defeating or obstructing the course of justice.