Iuze Mukube
In a concurring judgement, Windhoek High Court judges Philanda Christiaan and Eileen Rakow found that the lower court was not justified in refusing bail to six individuals implicated in the purported N$400 million fraud at Namcor.
In a judgement delivered last Friday, the judges found that the magistrate failed to evaluate evidence in a balanced manner, in that concessions made by the investigating officer and relevant aspects of the appellants’ evidence were either disregarded or not accorded due weight.
The matter pertains to an appeal lodged by Peter and Malakia Elindi, Immanuel Mulunga, Olivia Dunaiski, Leo Nandago and Jennifer Hamukwaya, in which they sought to redirect an order by magistrate Linus Samunzala that denied them bail last year.
They contended in their appeal that the magistrate selectively assessed evidence in the ruling, where certain material facts were either overlooked or insufficiently considered.
They also argued that the magistrate failed to specify the material concessions they allegedly made on record whilst also ignoring the concessions made by investigating officer Oberty Inambao.
The High Court found that the magistrate misdirected himself in the evaluation of the statutory factors governing bail.
The magistrate placed undue reliance on contested aspects of the state’s case, failed to properly consider concessions made by the investigating officer and did not accord sufficient weight to the appellants’ personal circumstances, the court also found.
The judges also stated that the magistrate failed to adequately consider whether bail conditions could mitigate the identified risks, such as fear of abscondment and interference with either witnesses or investigations.
They also found that the magistrate adopted a generalised approach in certain aspects, rather than conducting an individualised assessment of each appellant.
The court found that these misdirections, taken all together, vitiated the exercise of discretion and found that the refusal of bail was wrong and its [High Court] interference was warranted.
“Undue weight was placed on the seriousness of the charges and the asserted strength of the State’s case, without proper enquiry into whether the risks identified could be mitigated by the imposition of appropriate bail conditions,” they added.
The court also found that the lower court failed to conduct a sufficiently individualised assessment of each appellant, including their personal circumstances and respective roles.
The judges also found that the public interest considerations were applied in a generalised manner, without proper evidential foundation.
The appeals against the refusal of bail were upheld for the six appellants.
The Elindi brothers, Mulunga and Hamukwaya got bail in the amount of N$50 000 each, while Dunaiski and Nandago were granted bail in the amount of N$20 000 each.
Bail conditions were set, including that they shall not apply for any travel documents until the finalisation of the criminal matter.
Additionally, a photocopy of each appellant’s passport containing a photograph and particulars, together with the court order, shall be provided by the investigating officer to all Namibian border posts, Hosea Kutako International Aiport and Eros Airport.
Additionally, the Elindi Brothers and Nandago shall not leave the district of Ondangwa without written notification to the investigating officer and shall report once every Monday and Friday at the Anti-Corruption Commission in Windhoek.
Similarly, Mulunga, Hamukwaya and Dunaiski shall not leave the district of Windhoek without permission and shall report once every Monday and Friday at the ACC office in the city.
Additional conditions are that all of them shall not communicate with or in any way interfere with State witnesses, the investigations or any evidence relating to the matter.
The accused are expected to appear in the Windhoek Magistrate’s Court on 21 April 2026 for plea proceedings.
The Elindis were represented by Sisa Namandje, Mulunga by Borris Isaacks, Hamukwaya by Mbanga Siyomunji, Dunaiski by Gilroy Kasper and Nandago by Ngakumbirue Katjivena.
The State was represented by advocate Basson Lilungwe.
Photo: Heather Erdmann