S v Gustavo (SA 58-2022) [2022] NASC (2 December 2022) – whether the High Court (court a quo) exercised its discretion to grant bail wrongly or not? The Supreme Court held that:

In dealing with applications for bail, a court engages in a balancing exercise of balancing the need to preserve the liberty of individuals presumed to be innocent until proven guilty, and the interests of the due administration of justice on the other hand. The relevant considerations are the seriousness of the offence and the strength of the State’s case as well as whether the accused will stand his or her trial, the likelihood of interference with the investigation and witnesses, and also the likelihood of similar offences being committed by the accused. 

Section 61 of the Criminal Procedure Act, 51 of 1977 (CPA) is to be viewed in its legislative context, thus expanding the range of offences in respect of which the Prosecutor-General could previously effectively deny bail, and thereby substitute the considerations of public safety and the maintenance of law and order with the broader concepts of the ‘interest of the public’ and the ‘administration of justice’.

Seeking to confine section 61 of the CPA to cases involving violent crime and public safety, as the respondent would have it, is contrary not only to the offences expressly included within its ambit, but also fails to consider the legislative history and the purpose of its introduction, affording the court wider powers to refuse bail in the context of escalating crime.

Whilst the concept of the interest of the public is wide and difficult to define, and given the statutory purpose behind the provision, it is clear that it embraces more than considerations of public safety, given the express inclusion of economic crimes within its ambit, and the manner in which the provision has been interpreted by the courts since its introduction.

The purpose of section 61 of the CPA was to afford the courts the power to refuse bail even if an accused has shown on a balance of probabilities that he or she will not abscond or interfere with the investigation or witnesses. The court is afforded the power to do so in the interest of the public or the administration of justice. The statutory context and purpose in interpreting that phase is thus the context of a court exercising the power to refuse bail even where the court is satisfied that it is unlikely that an accused will abscond or interfere with the investigation.

 Although the CPA does not specifically deal with bail applications based on new facts, section 65(2) does so indirectly. It precludes an appeal in respect of new facts which arise or are discovered after the decision against which the appeal is brought. An accused is required to first place those facts before the court against whose decision an appeal is brought.

This court follows the approach in Shanghala & others v State (CC 6/2021) [2022] NAHCMD 164 (1 April 2022) in respect of bail applications based on new facts as was correctly stating the position - as being facts which did not exist as at the hearing of the earlier bail application, and that a court would then consider all the facts which an accused has placed before the court – new and old – and decide on the totality of those facts.

The court below was thus required to consider the five new facts brought before it against the totality of all the facts and conclude. 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 the respondent to bail.

The court a quo only referred to two new facts in the judgement, and only in very brief terms. The court a quo failed to explain the impact of these new facts when viewed against the totality of the facts, nor did it conclude that the new facts compel the court to admit the respondent to bail. The failure to do this on its own constitutes a misdirection, and shows that discretion was wrongly exercised. Neither fact individually nor viewed cumulatively together could lead to such a conclusion in the context of the prior decision not to grant bail.

The acceptance by the court below of the respondent’s offer to wear a GPS was unsatisfactory in that no evidence was placed before the court concerning which type of device would be used, its efficacy and effectiveness, its availability, and how and in what manner it would be monitored. The court also failed to consider that the State opposed the unspecified offer. The order itself in this regard was vague and not properly enforceable, given that the respondent’s release was not conditional upon a device being in place. 

It was also a misdirection on the part of the court below by failing to consider the evidence and opinion of the investigating officer, particularly concerning the charges’ seriousness and the strength of the case against the respondent.

The rule of law, a foundational principle of our Constitution and the principle of accountability inherent in our constitutional values, require the State to prosecute those who transgress the law without fear or favour in order to uphold and protect the Constitution itself. 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 allegations against the respondent 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 the respondent and certain co-accused within a syndicate involving ministers of State. The investigating officer made a strong prima facie case of the respondent’s alleged involvement in corrupt and criminal conduct on a massive scale in the context of the Namibian economy.

The court a quo failed to consider the seriousness of the charges against the respondent, and the impact of the criminal activity and 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 have an interest.

The discretion exercised by the court below in respect of the criteria of section 61 of the CPA should not have arisen because the new facts did not result in their reconsideration. If anything, the evidence reinforced the earlier decision in that regard. The discretion concerning section 61 was wrongly exercised as it was based on wrong principles. Given these misdirections, all of which were material, it is clear that the decision of the court below was wrong and fell to be set aside. As a result, the appeal against the judgement of the High Court succeeded, and its order granting the respondent bail was accordingly set aside.

In arriving at the decision above, the court discussed principles and procedures applicable to bail as follows: 

The balancing exercise boils down to an enquiry about whether an applicant is a worthy candidate for bail, in the circumstances of each case. The accused bears the duty (onus) to show that, and would need to establish that on a balance of probabilities. Chapter 9 of the CPA does not prescribe the precise procedure to be followed, but the procedure is less formal than a trial. The evidentiary material presented in a bail application need not comply with the rules governing the admissibility of evidence. The State is not obliged to prove its case against an accused in bail proceedings, but would need to demonstrate through credible evidence the strength or apparent strength of its case with reference to the evidence in its possession in the form of witness statements and documentary evidence. This evidence is usually given through the investigating officer.

The introduction of section 61 

Section 61, as it was previously worded at the adoption of the Constitution, was plainly not compatible with the Constitution. The legislature thereafter passed Act 5 of 1991 repealing that provision, and introduced section 61 in its current formulation. Section 61 authorises the court to decline bail in instances where a court considers that the interests of the public or the administration of justice justify the refusal. The purpose of its introduction was thus explained at the time by the High Court in S v Du Plessis & another 1992 NR 74 (HC) 82F-H and 83B-E:

‘Act 5 of 1991 must be seen as an expression of the concern of the Legislature at the very serious escalation of crime, and the similar escalation of accused persons absconding before or during the trial when charged with serious crimes or offences. The amending legislation was obviously enacted to combat this phenomenon by giving the Court wider powers and additional grounds for refusing bail in the case of the serious crimes and offences listed in the new part (IV) of the Second Schedule of the Criminal Procedure Act 51 of 1977. At the same time, the substitution of the new s 61 for the previous section took away the power of the Attorney-General and since independence, the Prosecutor-General, to prevent the Court from considering bail.

. . . 

Furthermore, …the Legislature intended to restore the discretion to grant bail to the Courts. But in this way, the Legislature also placed an additional responsibility on the Courts to consider the grounds on which the Prosecutor-General could oppose bail, as grounds on which the Court can now refuse bail, under its wider powers to refuse on the grounds that it is not in the interest of the public and/or not in the interest of the administration of justice.

The amending legislation has also…extended the list of crimes and offences significantly where the Court can refuse bail on the grounds of public interest and interest of the administration of justice, compared to the list of crimes or offences where the Prosecutor-General could oppose bail under s 61 as it stood before...

The fact that the Court’s additional power to refuse is stated in wider terms indicates that the Court, when considering public interest, is not restricted to the limited form of public interest on which the Prosecutor-General could rely in the substituted s 61 as the second ground, viz the ground that the release is likely to “constitute a threat to the safety of the public or the maintenance of the public order”.

The latter ground is surely one of the possible examples of public interest on the ground of which bail can be refused by the Court, but it is not the only one.’

In Nghipunya v State(HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020) para 44 (Nghipunya I) the full bench of the High Court stated that:

‘The days of distinguishing between the seriousness of monetary crimes and violent crimes can no longer be seen to be different in bail applications. Whether the crimes involve public funds or a physical attack on a member of society, if the circumstances permit, the seriousness thereof must be considered when considering bail. In this matter, the misappropriation of public funds affects every individual of the Namibian public, and needs to be seen for the detestable crime that it is. This, together with the factors outlined above, are enough to arouse a court to the view that the administration of justice does not merit the release on bail of an applicant under these circumstances.’

The test on appeal is that ‘the court or judge hearing the appeal shall not set aside the decision against which the appeal is brought, unless such court or judge is satisfied that the decision was wrong, in which event the court or judge shall give the decision which in its or his opinion the lower court should have given.’ section 65(4).

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