Justicia Shipena
Fishrot accused Ricardo Gustavo has opposed an application by co-accused Otniel Shuudifonya for leave to appeal a court ruling that refused a lengthy delay of the trial.
Gustavo, together with Namgomar Pesca Namibia (Pty) Ltd, is challenging Shuudifonya’s attempt to appeal the postponement ruling.
Shuudifonya, through his lawyer Joas Neemwatya, is seeking permission to appeal a decision delivered on 21 January 2026 by High Court judge Marelize du Plessis.
The court granted only a limited postponement of about six weeks instead of the six to seven months requested.
In his application, Shuudifonya argues that the six-week preparation period is not enough to prepare his defence and that another court may find the time insufficient.
However, both the state and Gustavo oppose the application. They argue that the appeal has no reasonable prospects of success and should be dismissed.
In his heads of argument on Wednesday, Gustavo’s legal team said the trial has not yet started and that time has already passed since the January ruling.
He argues that by the time an appeal is heard, the issue will no longer be relevant.
“The application is moot, in that the period of six to seven months sought by the applicant from January 2026 would, by the time any appeal is heard and determined by the Supreme Court, already have elapsed.”
Gustavo further argues that the postponement ruling is not appealable because it is an interlocutory decision made during trial proceedings.
“No exceptional circumstances exist or were demonstrated in this case.”
They add that the intended appeal does not meet the required legal test.
“The intended appeal has no reasonable prospects of success.”
The respondents also argue that the court properly considered factors such as delays in the case, changes in legal teams and the need to balance the rights of all accused and the public. They say there was no error in law or fact.
They further state that legal aid funding disputes do not justify delaying criminal proceedings indefinitely and that courts are not required to halt trials while such issues are being resolved.
The state, in its heads of argument on the same day, also opposes the application.
It argues that Shuudifonya’s filing does not meet legal requirements under the Criminal Procedure Act (Poca).
“Regrettably, what the applicant has filed is merely a bare filing notice accompanied by an affidavit,” the state says.
The state argues that postponement rulings are not appealable unless exceptional circumstances exist.
It adds that granting leave to appeal could lead to repeated delays through piecemeal appeals.
“The mere fact that a legal representative requests 6 months for trial preparation does not mean that the request must automatically be granted,” the state argues.
It also says the court correctly balanced the interests of the accused with the public interest in concluding the case.
“The right of the public to see cases bearing a national interest come to a conclusion will carry more weight,” the court previously stated.
Shuudifonya and other accused, in heads of argument dated in February, argued that they were not given enough time to prepare for trial.
They say the court should have waited to set trial dates until issues around legal aid tariffs were resolved.
“A diligent court would have waited to set the trial date until the legal aid tariff issues… could impact trial fairness,” the document states.
They also argue that the preparation period of about one month is too short and that they need more time to prepare.
They raise concerns about limited access to legal consultations, particularly for those held at the Windhoek Correctional Facility.
They further argue that the postponement ruling is appealable because it affects their right to a fair trial and adequate preparation.
They also raise procedural concerns, saying the court allowed parties to participate in earlier proceedings without following proper rules.
“The court did not observe and apply its own rules.”
They argue that exceptional circumstances exist due to limited preparation time and unresolved legal aid issues and are asking the Supreme Court to grant a longer postponement of up to six or seven months.
They also suggest the matter should be delayed until legal aid tariff issues are resolved.
“The Supreme Court could order the Directorate of Legal Aid to resolve the outstanding issue of legal aid tariffs before it fixes the trial date.”
The matter is expected to be heard on 13 April.
