One of the alleged key figures in the Fishrot saga, James Hatuikulipi, raked in more than N$58.2 million from the scheme, prosecutor general Martha Imalwa has claimed.
Imalwa made the revelation in the case in which Hatuikulipi is challenging the constitutionality of parts of the Prevention of Organised Crime Act (Poca) of 2004, which was used in the freezing of his accounts and assets. “I estimate the value of the benefit that the applicant is alleged to have received to the tune of at least N$58 205 073 in Namibia,” said Imalwa.
Of that known share, more than N$54.6 million was paid outside of Namibia into an account of Tundavala Investment Limited.
Hatuikulipi is the sole director of Tundavala Investment Limited.
Imalwa said the “current whereabouts of the money paid into Tundavala is unknown”.
She added that considering the substantial amount Hatuikulipi received and what has been paid outside the country, the proportionality of the restraint order can hardly be said to be disproportionate.
The former managing director of Investec, who is currently awaiting trial on 40 criminal charges,
said he accumulated his assets from working in the financial service industry since 1998. Thus, he now seeks an order declaring the wording “… or it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against that defendant” unconstitutional.
He also seeks an order declaring the current restraint order on his assets unconstitutional and should be set aside.
Hatuikulipi said in terms of section 25(2)(a), (b) and (c), there is no limitation to the value of the property that is subject to the restraint order. He said the act does not identify which article of the constitution authorises it to impose a limitation on his rights. “There is no requirement in section 24, stating the application for a restraint order must indicate at some level or other, the value of the proceeds of the offences or related criminal activities to the defendant in question,” said Hatuikulipi in court documents. In addition, whether the acquisition is in some way connected to the offences with which the defendant is charged. According to him, the absence of such a requirement for there to be a link between the accumulated assets (subject of restraint) and the alleged criminal activities renders the restraint unconstitutional. Furthermore, the preservation paints him as a guilty person when he has not yet been convicted.
Sign up for free AllAfrica Newsletters
Get the latest in African news delivered straight to your inbox
However, Imalwa claims Hatukulipi’s assertions of his guilt in relation to the preservation order are misplaced.
She said the preservation order is based on the principle that no one must be allowed to benefit from his/her wrongdoing. “A confiscation order merely deprives the criminal of the benefits which he was not entitled to in the first place. It strips him of the proceeds of his crime and does not punish him for it,” explained Imalwa. The matter has since been postponed to 28 November for case management. Hatuikulipi forms part of the group of business people and politicians awaiting trial on a handful of criminal charges for allegedly corruptly receiving payments of at least N$103.6 million to allow Icelandic fishing company Samherji secure access to horse mackerel quotas in Namibia. The State alleges the fishing quotas to which Samherji had gained access had supposedly been allocated “for governmental objectives in the public interest”. They further face criminal charges for allegedly channelling millions in funds from Fishcor through law firms to their bank accounts.
The group comprises Ricardo Gustavo, former fisheries minister Bernhard Esau, former justice minister Sacky Shanghala, Tamson Hatuikulipi, Pius Mwatelulo, Mike Nghipunya, Nigel van Wyk and Jason Iyambo as well as Sakaria Kuutondokwa Kokule. Other accused persons, such as lawyer Marén de Klerk and Icelandic executives Ingvar Júlíusson, Egill Helgi Árnason and Adalsteinn Helgason are yet to be extradited to Namibia so they may stand trial alongside their co-accused.