Commentators believe Fishrot accused Ricardo Gustavo and his legal team proved on a balance of probabilities that he was a good candidate for bail.
They reiterated the public ought to understand bail should not be withheld as punishment, as the accused remains innocent until proven guilty. Windhoek High Court Judge Herman Oosthuizen yesterday granted bail to Gustavo in the amount of N$800 000, with numerous stringent conditions,
including restricting him largely to his Finkenstein Estate home.
The accused, among bail conditions, must also report twice daily at the Kappsfarm police station and at the Anti-Corruption Commission’s offices every Monday, Wednesday and Friday.
He is also not allowed to have control or apply for travel documents and cannot contact his co-accused or the State’s witnesses. Gustavo became the first of the group of businessmen and politicians, facing a handful of criminal charges, to be released on bail since their arrest in 2019 and 2020. Rundu-based lawyer Bernhard Tjatjara weighed in on the issue, saying although bail conditions are a handful, they are placed there to ensure the interest of justice is not prejudiced upon release of the accused.
“As I see it, the judge was trying to allay the fears of the prosecution by imposing the conditions,” noted Tjatjara. He explained the granting of bail to an accused is not an indicator of innocence or guilt.
“The judgment signifies the independence of the judiciary, which is a cherished and hallowed principle that courts will not succumb to public pressure or public opinion even though public interest is important. It reminds us of the difference between public interest and public opinion,” said Tjatjara.
Nafimane Halweendo, a Windhoek-based legal practitioner said the public should understand the purpose of bail is not to punish an accused person before they are even convicted by the court. Bail is granted to ensure that they are going to be present at their trial, he said “I understand that a majority of the public would ordinarily want the accused to remain in custody, we have to bear in mind that the trial of a case such as the Fishrot one might take many years to be finalised and what if some are found not guilty or might have to pay a fine. It would not be fair for that person to have spent all those years in custody.”
He said Namibia’s jurisprudence leans more to the accused being granted bail unless it is really necessary to keep them in custody. One of the bail conditions was that the State was allowed, at its own cost to affix an advanced GPS on Gustavo’s ankle or wrist to monitor his movement. Halweendo noted, currently, the use of a GPS is not regulated by an act of parliament in Namibia on how it should be applied. He said a GPS is a limitation on a person’s privacy, which is why the judge did not specify that the GPS may be monitored by the police.
“This is because the law in our country is silent on the use of GPS. I think this condition would be very difficult to impose because it is unregulated in our law. So, it is good for parliament to look into it,” said Halweendo. 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 are also seeking to regain their liberty. Their hearing is scheduled to resume on 24 January 2022. Shanghala’s former employee and now co-accused Nigel van Wyk earlier this month abandoned his bail application. He, however, informed the court that he would be launching a new application next year.
The group, alongside former fisheries minister Bernhard Esau, his son-in-law Tamson Hatuikulipi and lawyer Marèn de Klerk, are 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.