Esau v S (CC 06-2021) [2023] NAHCMD 819 (12 December 2023)

Facts

The applicants, Mr Bernhard Esau (first applicant) and Mr Nigel Van Wyk (second applicant), brought an application for bail on new facts. The application is opposed by the State. The applicants were arrested during November and December 2019. 

They are indicted on charges ranging from racketeering, money laundering, conspiracy to commit crime, corruptly giving gratification for reward, fraud and theft. The second applicant is also charged with assault on a member of the police in contravention of provisions of the Police Act 19 of 1990, and unlawful possession of ammunition in contravention of provisions of the Arms and Ammunition Act 7 of 1996.   

The applicants initially applied for bail in the Magistrate’s Court. Their applications were dismissed. They are now applying for bail on new facts. 

The new facts are that cases no CC6 and CC7 of 2021 have been joined, which will result in a protracted trial, considering the number of State witnesses; that they have been in detention for over two years and five months since their initial bail application failed whilst the trial is yet to commerce; that the State does not have a strong case against them; and that their personal circumstances have deteriorated exponentially over the past years since the last bail application. The first applicant further claims that his name and credentials as Minister of Fisheries and Marine Resources have been falsely used by some of his co-accused; and that his medical condition deteriorated while in custody and since his last bail application. The second applicant’s further grounds are that it is not in the interest of the public and the administration of justice to keep him in custody; and that investigations are finalised, thus, there exists no fear of interference.  

The State opposed the granting of bail on the grounds that: It will not be in the interest of the public and the administration of justice for the applicants to be granted bail; that the applicants are facing serious charges; that the State has a strong case against the applicants; and that there is a likelihood that the applicants will interfere with witnesses and the evidence.

MUNSU J considered the appeal as follows.

Issues for determination, 

In bail applications based on new facts, the court is required to consider the facts that did not exist at the time of hearing of the earlier bail application, and then consider all the facts that an accused has placed before the court, new and old, and decide on the totality of those facts. The new facts must be such that they are related to and change the basis on which bail was initially refused. 

Discussion

‘[38] In S v Gustavo, the court held that, in dealing with applications for bail, a court engages in a balancing exercise, by balancing the need to preserve the liberty of individuals presumed innocent until proven guilty, and the interest of the due administration of justice on the other hand. 

[39] The facts, especially as they relate to the applicants’ personal circumstances, were already placed before and considered by the magistrate. However, at the time, investigations were not yet completed, and the State had not yet disclosed. The proceedings in the court a quo show that the State had listed the grounds on which bail was opposed. The fairly recent decision in Nghipunya v Minister of Justice has made the position clearer. It cannot be said that the applicants were in the dark as to the reasons that bail was opposed. 

[40] In Ali Moussa v The State found that the period of two years and nine months that the applicant spent in custody pending trial after his third unsuccessful bail application, was a new fact in the subsequent bail application. 

[41] It follows that the period of time of more than two years the applicants spent in custody awaiting trial after the refusal of their bail application amounts to a new fact. This entitles this court to consider the new fact, together with all other evidence on record, to determine if the applicants have discharged their onus of proof on a balance of probabilities to be granted bail.  

[42] Bail was refused on the basis that it was not in the interest of the public and the administration of justice to admit the applicants to bail. In this application for bail on new facts, the first applicant raised as a new fact his medical condition. 

[46] In Helena Botha v State, the court held that our case law is abundantly clear that the nature of the crime charged and the strength of the State’s case are extremely relevant at the stage when bail is considered.

[47] It is trite that the requirement in bail applications is for the prosecution to show through credible evidence that there is a strong prima facie case against the applicant.

[48] Although the first applicant contended that the State does not have a strong case against him, the evidence presented shows otherwise. Disclosure having been availed, the applicant became aware of the allegations about the meetings which were held in Angola, the documents prepared in respect of the Angola MOU, etc. Him being the line Minister at the time, he does not deny that an illegal operation took place, but that his name had been used by his co-accused. 

[50] Despite the first applicant stating that he never had any interaction with Mr Shangala, and that he never delegated him to perform any functions of the Ministry, as well as him agreeing with the then Attorney General’s statement that it was ‘highly irregular for Mr Sakeus Shangala, by then as Chairperson of the Law Reform and Development Commission to write such document purporting to represent the position of the Namibian Government, he nonetheless referred the said letter to the Permanent Secretary, with the knowledge that such letter contained falsehoods. He subsequently nominated Namgomar Pesca SA, which was subsequently issued with quotas based on the false information contained in Mr Shanghala’s letter.

[51] The first applicant testified that the allocation of quotas are made to Namibian-registered entities. However, he went ahead and approved the allocation of quotas to Namgomar Pesca SA with an address in Angola. In addition, the first applicant testified that to his knowledge, there was no Namibian shareholder Namgomar Pesca Namibia, yet in a letter dated 7 July 2014 to employees of the Ministry, he stated that quotas were allocated to a joint venture. The evidence revealed that Namgomar Pesca SA was a non-existent company, while Namgomar Pesca Namibia was owned by an Angolan company, Namgomar Pesca Limitada. 

[52] On the Fishcor matter, the same individuals still feature. Mr Shanghala recommended to him the appointment of Mr James Hatuikulipi as board chairperson. Upon being appointed, Mr James Hatuikulipi forwarded his appointment letter to the same individuals as pointed out earlier. 

[53] The first applicant is also linked to the Fishcor matter through Otjiwarongo plot 51, which was purchased for N$1, 2 million, using funds from Celax and DHC. Accordingly, I find that the State has established a prima facie case against the first applicant on what appears to be serious charges. 

[54] The legislature did not define what constitutes public interest or administration of justice. It has been left to the courts to interpret what constitutes public interest or interest of administration of justice. The court in Shaduka v State emphasised that since the enquiry is now wider, a court will be entitled to refuse bail in certain circumstances, even where there may be a remote possibility that an accused will abscond or interfere with the police investigations. The crucial criterion is thus the opinion of the presiding officer as to whether or not it would be in the interest of the public or the administration of justice to refuse bail. 

[55] In Boois v S, the court reasoned that if an accused is charged with a serious case and if convicted, a substantial period of imprisonment is likely to be imposed; such factor alone entitles the court to refuse bail, based on public interest or administration of justice.

[56] In respect of the first applicant, I find that the new fact raised, considered together with all the evidence on record, did not change the position on which bail was initially refused. The evidence presented in the current bail proceedings, coupled with the evidence led at the initial bail hearing, does not persuade me to reach a different conclusion than that reached in the initial bail hearing. 

[57] As for the second applicant, it has not been alleged that he was part of the Namgomar and/or Fishcor scheme. It seems to me that his involvement was as a result of his employment with Olea. According to him, he never knew that Mr Shangala and Mr James Hatuikulipi may have been involved in illegal activities. He placed on record that his relationship with them is only on the basis of employer-and-employee. He presented into evidence his contract of employment. He further informed the court that the payments he received were for the benefit of his employer, as he took the court through documents in a quest to demonstrate just that. 

[58] Thus, the magnitude of the offences and the severity of the sentence he may receive on conviction is unlikely to be the same as for those of his co-accused. Although he has a case to answer at trial, regard being had to the extent of his involvement in the matter, the period he has been in custody, the sentence he is likely to receive if convicted, and the fact that investigations are complete, it is my considered view that it is in the interest of the administration of justice that he be admitted to bail. 

Held that:

In applications for bail based on new facts, the court considers the facts which did not exist as at the time of hearing of the earlier bail application, and then consider all the facts which an accused has placed before the court, new and old, and decide on the totality of those facts.

The period of time of more than two years the applicants spent in custody awaiting trial after the refusal of their bail application amounts to a new fact entitling the court to consider the new fact, together with all other evidence on record, to determine if the applicants have discharged their onus of proof on a balance of probabilities to be granted bail.

The period of time spent in custody pending trial has to be considered together with other factors, such as the seriousness of the charges and strength of the case against the applicant, the reasons for any delay, etc.

In respect of the first applicant, the new fact raised, considered together with all the evidence on record, did not change the position on which bail was initially refused. 

The evidence presented in the current bail proceedings, coupled with the evidence led at the initial bail hearing, does not persuade the court to reach a different conclusion than that reached in the initial bail hearing. 

It has not been alleged that the second applicant was part of the Namgomar and/or Fishcor scheme.

The magnitude of the offences and the severity of the sentence he may receive on conviction is unlikely to be the same as for those of his co-accused.

Regard being had to his extent of involvement in the matter, the period he has been in custody, the sentence he is likely to receive if convicted, the fact that investigations are complete, it is in the interest of the administration of justice that he be admitted to bail. 

Visit https://consultfasz.com/ for more Concise Law Reports.