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Gustavo back behind bars …Judge Oosthuizen made glaring misdirections

2022-12-05  Roland Routh

Gustavo back behind bars …Judge Oosthuizen made glaring misdirections

Three judges of the Namibian Supreme Court on Friday set aside the ruling of Windhoek High Court Judge Herman Oosthuizen to release Fishrot accused Ricardo Gustavo on bail.

Judges of appeal Sylvester Mainga, Dave Smuts and Elton Hoff further ordered that Gustavo handed himself over at the Windhoek Correctional Facility by not later than 17h00 on Friday. 

Windhoek High Court Judge Oosthuizen released Gustavo on an N$800 000 bond and stringent conditions and dismissed an application by the PG to appeal the ruling in the Supreme Court.

The PG then petitioned Chief Justice Peter Shivute, who granted the petition.

In the ruling, Judge Smuts, who wrote the concurring judgment, said Judge Oosthuizen made glaring misdirections in his judgment. 

According to Judge Smuts, the High Court was required to consider five new facts brought before it against the totality of all the facts to come to a conclusion. 

He further said if the new facts did not establish a new perspective or impact upon the old facts, it was not open to the court to admit Gustavo on bail. 

However, the Supreme Court judges found Judge Oosthuizen only considered two of the new facts and referred to them only in brief terms. 

“The court a quo (High Court) failed to explain the impact of these new facts against the totality of the facts, nor did it conclude that the new facts impel the court to admit the respondent (Gustavo) to bail. It was incumbent of the court a quo to do so,” the appeal judges stated. 

They continued: “The failure to do this on its own constitutes a misdirection and shows that the discretion was wrongly exercised. Neither fact individually or viewed cumulatively together could lead to such a conclusion in the context of the prior decision not to grant bail”.

Furthermore, the appeal judges stated it was a misdirection by the High Court when it failed to take into account the evidence and opinion of the investigating officer and particularly the seriousness of the charges and the strength of the State’s case against Gustavo. 

They further stressed the rule of law, which is a foundational principle of our Constitution values, requires the State to prosecute those who transgress the law without fear or favour to uphold and protect the Constitution itself. 

Thus, they said, the interest of the public is served by the State addressing serious crime and the scourge of corruption within the operation of the rule of law.

“The High Court failed to take into account the seriousness of the charges against the respondent and the impact of the criminal activity as well as its scale upon the public and the interest of the public being so adversely affected by the alleged commission of those offences, as well as the deleterious impact upon the rule of law and accountability in which the public has an interest,” Judge Smuts stated. 

He went on to say that the allegations against Gustavo are gravely serious and involve vast sums of money (some N$150 million) and criminal conduct directed at diverting State resources for the benefit of himself and his co-accused with a syndicate involving ministers of State. 

“A strong prima facie case was made out by the investigating officer of the respondent’s alleged involvement in corrupt and criminal conduct on a massive scale in the context of the Namibian economy,” the appeal judges said.

They further said the discretion exercised by the High Court in respect of the criteria of section 61 of the Criminal Procedure Act (public interest and the interest of the administration of justice) should not have arisen because the new facts did not result in their reconsideration. 

If anything, they said, the evidence reinforced the earlier decision in that regard (the magistrate ruling and the appeal against it). 

“The discretion concerning section 61 was wrongly exercised, as it was based on wrong principles,” the appeal judges found – further that given the misdirections – all of which were material, the decision of Judge Oosthuizen was wrong and fall to be set aside.

Gustavo, alongside former justice minister Sacky Shanghala, former fisheries minister Bernhard Esau, former chairman of Fishcor James Hatuikulipi, former CEO of Fishcor Mike Nghipunya, Tamson Hatuikulipi, Pius Mwatelulo, Otneel Shuudifonya, Phillipus Mwapopi, Nigel van Wyk and fugitive lawyer Marèn de Klerk, is charged for corruptly receiving payments of at least N$150 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. 

They are to return to Court on 14 February next year.


2022-12-05  Roland Routh

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