Chief Justice Peter Shivute has granted the prosecutor general’s petition to appeal the ruling of Windhoek High Court Judge Herman Oosthuizen to release Fishrot accused Ricardo Gustavo on bail.
Judge Oosthuizen released Gustavo on an N$800 000 bond with stringent conditions and dismissed an application by the PG to appeal the ruling in the Supreme Court.
In his ruling on the appeal application, Judge Oosthuizen said the discretion, to impose bail conditions to provide freedom to the accused for the interest of justice or the interest of the administration of justice, remains with the court.
He said 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 are 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.
Advocate Ed Marondedze, who is conducting the appeal on behalf of the PG, said Oosthuizen failed to consider and make an appropriate ruling on whether or not the grounds that were tendered by Gustavo constituted new facts 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.
“In doing so, he failed to consider and appreciate that the concept of public interest or the administration of justice is broader and needs 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,” Marondedze argued.
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 has a pending bail application.
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.
-rrouth@nepc.com.na
Caption: (Gustavo) Again… Fishrot accused Ricardo Gustavo.
Photo: Emmency Nuukala