Iuze Mukube 

The contention that a magistrate selectively assessed evidence in the bail ruling that denied six individuals charged in connection with defrauding Namcor was raised yesterday during the bail appeal. 

Legal representatives argued that certain material facts were either overlooked or insufficiently considered. 

The appellants, Peter and Malakia Elindi, Immanuel Mulunga, Jennifer Hamukwaya, Olivia Dunaiski and Leo Nandago, are seeking a redirection on Magistrate Linus Samunzala’s decision to refuse their bail application on 26 September last year. 

Sisa Namandje, representing the Elindis, highlighting the head of arguments, argued that the magistrate was frighteningly selective in favouring the testimony of the investigation officer, Oberty Inambao. 

Namandje added that the magistrate overly scrutinised the evidence of his clients and not that of Inambao. 

For instance, he stated that the magistrate stated his clients told “blatant lies” during bail proceedings but did not specify what the lies were. 

Additionally, the magistrate failed to specify the material concessions his clients allegedly made on record whilst also ignoring the concessions made by Inambao. 

Even though the magistrate acknowledged that the brothers were not a flight risk nor would they interfere with investigations, he still denied them bail. 

Namandje stated the magistrate assessed evidence unlawfully and in an unfair manner in concluding that Namcor sold “a dream”, when in fact, the contract might have just failed to materialise. 

He said the “charges are bogus”; if regard is given to the fraud allegation, then his clients should be victims and not standing as accused in court. 

He added that the ruling failed to assess disputed issues properly, including the amount involved, the strength of the State’s case, and public interest concerns. 

The magistrate, he said, did not touch on such facts but ruled on the basis that the state has a prima facie case. 

Namandje stated the magistrate was not prepared to point fingers at the investigating officer, who the lawyer claims had poor evidence. 

In addition, there was an unfair assessment of factual and legal issues that a partial officer could have considered to dispense justice fairly. 

He added that even though the investigating officer conceded that there was no justifiable reason for the arrest of his clients, such facts were also not touched upon. 

Samunzala failed to determine whether or not the two gave gratification (bribes) to any Namcor employees, he said. 

The magistrate was not ready to dispense justice in favour of his clients, said Namandje. 

He concluded his clients are ready to comply with any bail conditions and prayed for bail in the amount of N$50000. 

Nandago’s legal representative, Ngakumbirue Katjivena, argued that the magistrate failed to take into consideration the merits pertaining solely to his client. 

He contended that the magistrate’s decision to deny bail was based on a “blanket approach”, attributing the co-accused’s circumstances to his client. 

He added that the disappearance of Victor Malema or an alleged vehicle brought for Mulunga has nothing to do with his client. 

Katjivena also stated that although there was evidence, it was not considered that his client had no power of attorney or was a signatory to authorise bank payments linked to the criminal matter. 

He prayed for bail to be granted in the amount of N$10000 or N$5000. 

The matter continues in the Windhoek High Court before judges Philanda Christiaan and Eileen Rakow. 

–mukubeiuze@gmail.com