Maria Amakali

A lawyer representing Fishrot accused Ricardo Gustavo has argued the Windhoek Magistrate’s Court erred in judgement when it ruled that the interest of justice would not be served if he were to be released on bail. 
Defence lawyer Louis Botes said the court failed to make a finding about the strength of the State’s case as required by law. “The applicant was refused bail on hearsay evidence and no substantial evidence was given to substantiate the involvement of the applicant in the matter,” argued Botes. Botes further informed the court the State failed to provide evidence that Gustavo, who is a first time accused, is a danger to society. 
“We do take note of the wide media coverage of the case at hand and the figures that are accused before court, however, it is submitted that the fact that the matter received wide range coverage is not the ground for continued detention of the appellant before court nor does it create the factor of public interest but rather expectations.” Botes argued that if the court could grant bail to those who were convicted in the Avid/Social Security Commission fraud case, there is no justification why Gustavo and his co-accused cannot be released on bail pending the finalisation of the case. Botes proposed the court to grant Gustavo bail in the amount of N$100 000. 
The court should order Gustavo to hand over all his travelling documents and he may not apply for new travelling documents before the matter has been finalised. Furthermore, he should be ordered to report to the investigating officer or the offices of the Anti-Corruption Commission twice a day on Mondays and Fridays and he may not leave the district of Windhoek without the approval of the investigating officer. 
The State, as represented by deputy prosecutor general Cliff Litubezi, said Gustavo cannot argue that he should be granted bail because others in high profile cases were granted bail. He said every case is judged on its own merit.  
Litubezi argued it would not be in the interest of justice to have Gustavo released on bail, as investigations have not yet been completed. “The accused are alleged to have acted in common purpose as part of a criminal syndicate as well as in view of the fact that an estimated N$120 million in Dubai is not yet accounted for, hence it is not in the interest of the administration of justice to have the appellant released pending finalisation of investigations,” said Litubezi. It was the State’s submission that although investigations have not yet been completed, they are convinced there is a strong prima facie case against him for which he has to answer to. 
“The State respectfully submits that the magistrate’s decision to deny bail was not wrongly exercised and that the appellant failed to discharge the onus on a balance of probabilities to show why he should be granted bail, hence the State humbly requests this honourable court to dismiss the appeal against the refusal of bail.” 
The former Investec Asset Management Namibia client director approached the High Court to appeal the decision of the Magistrate’s Court to refuse him bail. 
Last month, magistrate Johannes Shuuveni refused Gustavo bail, citing that the charges he is facing are of a serious nature and should he be convicted, he is likely to face a lengthy jail sentence. 
Furthermore, the alleged amount involved is significantly high and it will not be in the interest of the public or administration of justice to release Gustavo on bail. Gustavo is charged together with former cabinet ministers, Bernhardt Esau and Sacky Shanghala, James Hatuikulipi, Tamson ‘Fitty’ Hatuikulipi and Pius ‘Taxa’ Mwatelulo. The group is facing counts of fraud, bribery, corruptly using office for gratification, money laundering and conspiring to commit corruption. 
The charges emanate from the alleged fraudulent activities surrounding the memorandum of understanding entered into between Namibia and Angola, meant to be mutually beneficial to the Namibian and Angolan people. 
However, it is alleged that the accused conspired and they received more than N$130 million in bribes from an Icelandic fishing company Samherji for continuous supply of horse mackerel quotas in Namibia. In addition, the prosecution charged the group for defrauding the Ministry of Finance when they made misrepresentations to the Directorate of Inland Revenue that Namgomar Pesca Namibia generated revenue of N$14.1 million from 2014 to 2019, whereas the company actually generated revenue of N$40.1 million. Judge Kobus Miller is scheduled to give a ruling in the matter on 28 July.  – mamakali@nepc.com.na