Shanghala v State (SA 62-2022) [2023] NASC (6 March 2023) 

The facts of this matter are well known. Whereas the six applicants brought applications for bail in the High Court which found that it would not be in the interests of justice to grant them bail and appealed, the Supreme Court stated that:

The legal position on bail applications and appeals in Namibia was restated by the Supreme Court in State v Gustavo (SA 58/2022) [2022] NASC (2 December 2022) endorsing the full bench decision in Nghipunya v State (HC-MD-CRI-APP-CAL-2020/00077) [2020] NAHCMD 491 (28 October 2020) and that position was therefore applied in this appeal. With respect to the legal framework relating to bail applications and appeals, it was necessary to express caution in respect of the use of South African case law as precedent because the South African underlying premise and legislation differs totally from that in Namibia. The South African Constitution contains a right to bail which is not present in the Namibian Constitution and furthermore the section in the South African CPA dealing with bail differs materially from section 61 of the Namibian CPA.

The reliance on Art 7 and Art 12 of the Constitution by the appellants was misdirected. The constitutional rights contained in these articles can and must be enforced independently from any bail application. If their liberty was interfered with in terms of a valid warrant of arrest in respect of a criminal charge, then the release can only flow from a successful bail application or from an acquittal in respect of the criminal charges.

Appellants further submitted that all the charges based on POCA were fatally flawed as officials of the ACC investigated these charges (i.e., money laundering and racketeering) and that the evidence in relation to these charges cannot be admissible.

It was held in that regard that, when the ACC refers matters to the Prosecutor-General, the referral need not only be in respect of the Anti-Corruption Act (ACA) offences but can also be in respect of any other offences discovered during the investigation. The sections in the ACA fortify the position that where lawful investigations established facts that would sustain convictions or prosecutions in respect of more than one offense, it would be nonsensical to exclude it in respect of certain crimes but allow it in respect of others.

The objections raised on this basis were not likely to substantially affect the admissibility of the evidence in respect of the POCA charges.

Consequently, and once it was accepted prima facie, that the State established a strong case to make against the appellants, the appellants’ attack on the judgment of the court a quo faltered at the starting block as the onus resting on the appellants to make out a case for their release on bail was not discharged. Further, considering the nature and magnitude of the allegations; the allegations relating to alleged attempts to interfere with the evidence and the likelihood of this continuing should they be released on bail and the role players involved (whose conduct struck at the very basis of our society) - the risk that any one of them will not stand trial or continue to interfere with evidence simply cannot be excluded and the court a quo cannot be faulted to not allow anyone of them bail.

As a result, all six appeals are dismissed.

S v Gustavo (SA 58-2022) [2022] NASC (2 December 2022) 

Whereas Mr. Gustavo was granted bail in the High Court on new facts and the state appealed against that decision, the Supreme Court had to determine the issue of whether the High Court exercised its discretion wrongly or not and held that: 

In dealing with applications for bail, a court engages in a balancing exercise – by balancing the need to preserve the liberty of individuals presumed to be innocent until proven guilty and the interests of due administration of justice on the other hand. In this latter regard, 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. By engaging in this balancing process, the courts exercise discretion to decide whether a person in custody awaiting trial should or should not be released on bail pending that trial.

Section 61 of the 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 take into account 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 after all 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 come to a conclusion. 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 of the new facts in the judgment and then 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 impel 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 or 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 take into account that the State opposed the unspecified offer. The order itself in this regard was vague and not properly enforceable, given 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 take into account the evidence and opinion of the investigating officer and particularly concerning the seriousness of the charges 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. 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 court a quo failed to take into account 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.

As a result, the appeal against the judgment of the High Court succeeded and its order granting the respondent bail was accordingly set aside.

Nghipunya v S (HC-MD-CRI-APP-CAL-2020-00077) [2020] NAHCMD 491 (28 October 2020)

The applicant appealed against the refusal by the magistrate to admit him to bail. The High Court held, inter alia, that an applicant for bail does not per se enjoy a right to bail but a right to apply; an applicant must specifically make out his own case and not necessarily rely on the perceived strength or weakness of the state’s case; the amendment of section 61 was an expression of concern by the legislature for the increase in serious crimes and thereby giving the court wider powers when dealing with offences listed under Part IV of Schedule 2 in bail applications; when exercising its discretionary wider powers in terms of section 61, the court should look at the evidence holistically when asking itself whether the applicant has discharged his onus on a balance of probabilities; distinguishing between the seriousness of monetary crimes and violent crimes can no longer be seen to be different in bail applications; and that, when dealing with evidence of a crime syndicate a court must appreciate the involvement of each member and must be slow to view an individual member’s contribution in isolation, but rather in relation to the furtherance of the business of the syndicate. 

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