Hatuikulipi, Shanghala and Mwatelulo want assets back
Fishrot accused take on PG
The trio said Imalwa's application to freeze their assets was based on an Anti-Corruption Commission investigation instead of a police investigation, as is required by law.
Fishrot accused James Hatuikulipi, Sackeus Shanghala, Puis Mwatelulo and two of their companies have appealed to the High Court seeking the cancellation of a provisional restraint order granted in 2020 on request of the Prosecutor-General (PG) Martha Imalwa.
They called on the High Court to immediately stop Imalwa’s office from handling their frozen properties and that it should be surrendered to the appointed curators.
According to court papers filed this week, the trio and their firms argued that Imalwa can only institute a restraint application on the basis of an investigation that is authorised in writing by the Inspector-General of the Namibian Police, which - in their view - did not take place.
In fact, they stated, no written authorisation sanctioned the probe that would enable the PG to institute the restraint application.
No evidence
“She does not tender any evidence that the Inspector-General of the police authorised any member of the police to conduct any of the following investigations; an investigation to enable her to institute and conduct a restraint application.
"It is not disputed that an investigation was not conducted by a member of the police duly authorised by the Inspector-General. It is not alleged that a member of the police who was duly authorised by the Inspector-General conducted the investigations into possible contraventions of the Prevention of Organised Crime Act [POCA] by the defendants,” they argued.
“The effect of the provisional restraint order is that each of the defendants have been deprived, albeit provisionally, of their right to deal with any of their property.”
ACC, not police
They further asserted that Imalwa’s application was instead found on an investigation by the Anti-Corruption Commission (ACC) and not the police as prescribed by the law, therefore the rule nisi should not be granted.
“POCA 121 of 1998 prescribes that an application such as this restraint application is to be based on an investigation by a member of the police who is authorised in writing by the Inspector-General.
“Was the PG lawfully entitled to found her restraint application on an investigation by members of the ACC who are not members of the police and accordingly not authorised or lawfully empowered to conduct that investigation? It is submitted that the answer is no," the papers read.
“The consequence, it is submitted, is that on a proper application of the doctrine or principle of legality, the rule nisi may not be confirmed and the provisional restraint order falls to be discharged,” they urged.
The accused also pointed out that the PG’s affidavit does not mention any other investigation except that which was conducted by the ACC and which is detailed in its chief investigating officer Andreas Kanyangela’s affidavit, on which she relied for her conclusions or on which the criminal charges or the restraint application was based.
[email protected]
They called on the High Court to immediately stop Imalwa’s office from handling their frozen properties and that it should be surrendered to the appointed curators.
According to court papers filed this week, the trio and their firms argued that Imalwa can only institute a restraint application on the basis of an investigation that is authorised in writing by the Inspector-General of the Namibian Police, which - in their view - did not take place.
In fact, they stated, no written authorisation sanctioned the probe that would enable the PG to institute the restraint application.
No evidence
“She does not tender any evidence that the Inspector-General of the police authorised any member of the police to conduct any of the following investigations; an investigation to enable her to institute and conduct a restraint application.
"It is not disputed that an investigation was not conducted by a member of the police duly authorised by the Inspector-General. It is not alleged that a member of the police who was duly authorised by the Inspector-General conducted the investigations into possible contraventions of the Prevention of Organised Crime Act [POCA] by the defendants,” they argued.
“The effect of the provisional restraint order is that each of the defendants have been deprived, albeit provisionally, of their right to deal with any of their property.”
ACC, not police
They further asserted that Imalwa’s application was instead found on an investigation by the Anti-Corruption Commission (ACC) and not the police as prescribed by the law, therefore the rule nisi should not be granted.
“POCA 121 of 1998 prescribes that an application such as this restraint application is to be based on an investigation by a member of the police who is authorised in writing by the Inspector-General.
“Was the PG lawfully entitled to found her restraint application on an investigation by members of the ACC who are not members of the police and accordingly not authorised or lawfully empowered to conduct that investigation? It is submitted that the answer is no," the papers read.
“The consequence, it is submitted, is that on a proper application of the doctrine or principle of legality, the rule nisi may not be confirmed and the provisional restraint order falls to be discharged,” they urged.
The accused also pointed out that the PG’s affidavit does not mention any other investigation except that which was conducted by the ACC and which is detailed in its chief investigating officer Andreas Kanyangela’s affidavit, on which she relied for her conclusions or on which the criminal charges or the restraint application was based.
[email protected]
Comments
Namibian Sun
No comments have been left on this article