Namibia: Judge Dismisses Gustavo Bail Appeal

Windhoek High Court Judge Herman Oosthuizen on Tuesday refused to grant the State an opportunity to appeal his judgement when he released Ricardo Gustavo on bail.

Prosecutor General Martha Imalwa lodged an application to appeal the bail judgement in the Supreme Court against the release of Fishrot accused Gustavo by Judge Oosthuizen on an N$800 000 bond and stringent conditions.

In the appeal, Imalwa said that Oosthuizen failed to consider and make an appropriate ruling on whether or not the grounds that were tendered by Gustavo constituted new grounds that warranted him to consider the bail status of Gustavo.

“Had he done so, he would have realised that the alleged new facts did not change the basis on which bail was previously denied in the magistrate’s court and subsequently by the High Court, namely that… . ‘the alleged amount involved is significantly high and all the offences the applicant faces are serious in nature’ and that consequently it will not be in the interest of the public or administration of justice to release the applicant on bail.”

Narrowing what public interest a court should consider in a bail application as per his judgment led the judge to a wrong conclusion. Advocate Ed Marondedze, who is conducting the appeal on behalf of the PG, said: “In doing so, he failed to consider and appreciate that the concept of public interest or the administration of justice is broader and need to be given a comprehensive interpretation and it was therefore required of the judge to bring himself to consider and apply the following considerations to the circumstances of the case in that the respondent (Gustavo) was facing serious charges; he had no answers to documentary evidence tendered by the State; he will be convicted of the charges and that he had no defence against some of the charges and that the State case against him is arguably strong and therefore there is prima facie evidence that he had committed the crimes preferred against him.”

According to Judge Oosthuizen, the discretion to impose bail conditions in order to provide freedom to the accused as well as for the interest of justice or the interest of the administration of justice remains with the court. He said that the bail conditions were specifically designed to address the interests and concerns of both the accused and the State while preserving the interest of justice or the interest of the administration of justice.

“The court heard the evidence of the accused and was able to form a first-hand impression concerning the serious intention of the accused to stand trial. The court also heard the evidence of the investigating officer (IO) and took notice of the State’s concerns and its arguably strong case with full awareness of the fact that the investigating officer was not there to prove the State’s case on the merits,” the judge remarked and continued: The State in the bail application provided the court with documents it intended to use in the main trial in order to show it had a strong case against the accused. However, he said, the court is not required to make a finding on the veracity and/or permissibility of the documents from the bench or on the documents provided through the IO.

Therefore, he said, he concluded that there is no reasonable prospects that the Supreme Court will come to another conclusion or that the Supreme Court will come to a conclusion that he exercised his discretion wrongly in any circumstances. Although Gustavo was granted bail, his co-accused former justice minister Sacky Shanghala, former chairman of Fishcor James Hatuikulipi, former CEO of Fishcor Mike Nghipunya, Pius Mwatelulo, Otneel Shuudifonya and Phillipus Mwapopi were denied bail by Windhoek High Court Judge Shafimana Uietele. Tamson Hatuikulipi and Nigel van Wyk have pending bail applications.

The group, alongside former fisheries minister Bernhard Esau and fugitive lawyer Marèn de Klerk, is charged for 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 group, alongside 11 corporate entities and trusts connected to them, are charged with counts of racketeering, fraud, money laundering and other alleged crimes in connection to alleged fishing quota allocations and bribery.

They further face charges ranging from racketeering to fraud and money laundering for allegedly channelling millions of dollars from Fishcor to their bank accounts.

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