Namibia: Esau’s Pension Can Be Frozen – Imalwa

Prosecutor general Martha Imalwa is insisting that the pension money of former fisheries minister Bernhard Esau can be frozen by the state despite objections from Esau and his wife.
Imalwa has taken this stance in an affidavit filed at the Windhoek High Court last week.
Part of Esau’s pension money in an amount of about N$621 000 is currently frozen in a trust account of his lawyers.
This money is part of a pension payout of N$1,9 million that was made into a bank account of Esau in August 2020, and which he instructed his lawyers to use for covering the legal fees of himself, his son-in-law Tamson Hatuikulipi and both their spouses in ongoing legal proceedings instituted against them.

Esau (63), who has been held in custody since his arrest in connection with the Fishrot fishing quotas corruption scandal in November 2019, is receiving a monthly pension of about N$102 870 before deductions, according to a document from the Members of Parliament and Other Office Bearers Pension Fund which is filed at the High Court.
Esau and Hatuikulipi are facing criminal charges in two cases pending in the High Court.
They and their wives are also in a legal battle with the prosecutor general, who in November 2020 obtained a court order in terms of the Prevention of Organised Crime Act (Poca) to in effect have a wide range of their assets frozen, pending a likely later move to have the assets confiscated by the state.
In an affidavit filed at the High Court at the end of August, Esau’s wife, Swamma Esau, stated she and her husband were married in community of property and claimed she was entitled to half of her husband’s pension.

However, Imalwa said Esau’s pension money can be frozen.
“The Pension Funds Act does not prevent the restraint of pension money of a defendant after it has been paid out by a fund,” Imalwa said in her affidavit.
She added: “I further take note that there is a risk that the pension monies will be dissipated instead of being paid over to the curator from the trust account of the legal representatives of [Esau], should the pension monies have been unrestrained.”
The couple has been fighting to have Esau’s pension unfrozen and says his pension cannot be subjected to a restraint order in terms of Namibia’s law against organised crime.

Esau in an affidavit filed in August said he was advised that the Pension Funds Act states that benefits derived from a pension payout cannot be liable for attachment or subjected to any form of execution enabled by a judgement or order of court.

He stated that he is “entitled to have direct access to my pension benefits and monies and utilise it in any manner I deem fit as it cannot form part of a restraint and confiscation order”.
Esau added that his pension money is not subject to a restraint order in terms of Poca and that the provisional restraint order now in place should not be made final.
He has used his pension payout to pay his and Hatuikulipi’s legal fees in their bail application and subsequent appeal after they were refused bail, but the prosecutor general has opted to restrain the remaining pension money held by his lawyers in a trust account, Esau said.
Imalwa, however, says Esau’s paid-out pension money is subject to the restraint order.
“Cash in hand constitutes realisable property, even if it was originally derived from a pension payout,” she said.
Imalwa is basing her argument on chapter 5 of Poca, which serves the purpose of stripping people who have been convicted of criminal offences of the financial benefits derived from their crimes.

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Chapter 5 is dependent on a criminal prosecution and conviction. The effect of provisions in Poca is that a confiscation order is akin to a civil judgement for the payment of an amount of money against a defendant who has been convicted of a crime for the recovery of the benefits he or she has derived from the crime, Imalwa also said.
She added that such a judgement may be executed against any assets of the defendant or against any third party to whom the defendant made an affected gift.
Esau is accused of enabling the Fishrot corruption scandal by changing laws that paved the way for a scheme which is claimed to have deprived the state of millions of dollars in income from fishing quotas.
Imalwa also indicated that people who received gifts from the Fishrot accused could have their assets frozen, as part of the property restraint order process to make sure assets belonging to the Fishrot accused can be confiscated by the state later.


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Author : Namibian

Publish date : 2021-10-04 13:09:27

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