Judge says Hatuikulipi failed to disclose all assets, tax debts

James Hatuikulipi failed to make a full disclosure of his assets and liabilities when he applied to have N$5,75 million released from accounts under a property restraint order.

Hatuikulipi is one of the key figures in the Fishrot fraud, corruption and racketeering case.

This is one of the findings made by judge Claudia Claasen in a judgement delivered in the Windhoek High Court on Friday.

The accounts from which Hatuikulipi wanted to have funds released have been under a property restraint order in terms of the Prevention of Organised Crime Act since November 2020. Hatuikulipi informed the court he needs N$5,75 million to pay his legal expenses in the pending criminal case in which he and nine other people are due to be prosecuted on charges based on allegations that they unlawfully received Namibian fishing quotas that were later sold to the Icelandic-owned fishing company group Samherji.

According to Hatuikulipi, his legal costs during his pending criminal trial are projected to amount to a daily fee of N$55 000 for a senior counsel and a daily fee of N$50 000 for the lawyers instructing the senior counsel.

Claasen recorded in her judgement that Hatuikulipi informed the court that family members, friends and loved ones have been making financial contributions to pay his legal expenses since his arrest near the end of November 2019.

She remarked that Hatuikulipi was “designedly vague” about whether amounts that other people paid to cover his legal costs were loans, gifts or donations, and also did not mention the names of the benefactors, the amounts they paid or the intervals of their payments.

She noted that the number of court applications instituted by Hatuikulipi over the past four years and eight months is a matter of public record.

Despite the fact that all of Hatuikulipi’s assets have supposedly been placed out of his reach under a property restraint order, he did not ask for funds to be released to pay his past legal expenses, Claasen noted as well.

She stated: “The gnawing possibility arises of other ‘hidden’ properties or substantive revenue streams, to which the court is not privy. It is indicative thereof that there may well be sources from unrestrained property of [Hatuikulipi] that have not been disclosed from where the legal expenses have been met all along and can be met for the criminal trial.”

Claasen also recorded that according to prosecutor general Martha Imalwa, Hatuikulipi failed to disclose that he has tax liabilities totalling N$19,4 million dating from the years 2014 to 2019, while tax officials have assessed that Cambadara Trust owes N$33,6 million in unpaid tax, also for the period of 2014 to 2019.

Hatuikulipi did not disclose those alleged tax liabilities to the court when he launched his application for the release of funds from his and Cambadara Trust’s accounts.

In a replying affidavit filed at the court, Hatuilulipi said the alleged tax liabilities are the subject of some of the charges he is facing in his criminal case and that he is disputing that he and the trust owes the mentioned amounts to Namibia’s tax authorities.

Claasen remarked that the evidence left no doubt that Hatuikulipi’s taxable income has been assessed for the period of 2014 to 2019 and that tax officials found that he and Cambadara Trust owe amounts of N$19,4 million and N$33,6 million, respectively, in unpaid tax.

Those amounts represent outstanding liabilities, which Hatuikulipi should have disclosed to the court in his application for the release of funds, Claasen said.

In contrast to a similar application for the release of funds by former minister of fisheries and marine resources Bernhard Esau, who was found to have made a proper disclosure of his assets, income and expenditure to the court, she was not satisfied that Hatuikulipi made a full disclosure of his assets and liabilities, Claasen said.

Hatuikulipi was represented by senior counsel Vas Soni, instructed by the law firm Murorua Kurz Kasper Incorporated.
State advocate Mariette Boonzaier represented the prosecutor general.