Prosecutor general Martha Imalwa has lodged an appeal in the Supreme Court against the release of Fishrot accused Ricardo Gustavo by Windhoek High Court Judge Herman Oosthuizen on an N$800 000 bond.

The appeal against the contentious judgement to release Gustavo on numerous stringent conditions is set down for a hearing during March.

In the appeal, Imalwa said Oosthuizen failed to consider and make an appropriate ruling on whether or not the grounds which were tendered by Gustavo constituted new grounds that warranted him to consider the bail status of the Fishrot accused.  

“Had he done so, he would have realised that the alleged new facts did not change the basis on which bail was previously denied in the magistrate’s court and subsequently by the High Court, namely that the alleged amount involved is significantly high, all the offences the applicant faces are serious in nature, and that consequently it will not be in the interest of the public or administration of justice to release the applicant on bail,” the prosecution argued. 

Narrowing what public interest a court should consider in a bail application as per his judgement led the judge to a wrong conclusion, Advocate Ed Marondedze, who is conducting the appeal on behalf of the PG claims, adding that the judge failed to consider and appreciate that the concept of public interest or the administration of justice is broader and needs comprehensive interpretation.

“It was, therefore, required of the judge to bring himself to consider and apply the following considerations to the circumstances of the case in that the respondent (Gustavo) was facing serious charges; he had no answers to documentary evidence tendered by the State; he will be convicted of the charges, that he had no defence against some of the charges, and that the State’s case against him is arguably strong and, therefore, there is prima facie evidence that he had committed the crimes preferred against him.”

He further stated that evidence tendered by the State showed Gustavo was or is a member of a sophisticated syndicate whose criminal activities had a devastating and crippling negative effect on the economy and State resources, and that the public interest surrounding the now infamous Fishrot scandal is debatably intense. 

According to Marondedze, the possibility of Gustavo fleeing the country is real as he is currently unemployed, has no occupational roots in Namibia, and the likelihood that his assets will be declared forfeited to the State is high in view of the strong prima facie case against him. 

The respondent has the means to flee the country as he had falsely informed the court that prior to his arrest, he was unaware of Tundavala Investment, in which most of the misappropriated funds meant for Namgomar Pesca Namibia was paid in, while it emerged during the bail hearing that he had dealings on behalf of Tundavala, Marondedze said. 

He went on to say that four of Gustavo’s co-accused, who are members of the criminal enterprise, including a Namibian citizen, are still at large, and can easily accommodate him should he decide to abscond.     

Oosthuizen granted bail to Gustavo in the amount of N$800 000, with numerous stringent conditions, including restricting him largely to his Finkenstein Estate home. 

Other bail conditions are that he 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 over or apply for travel documents, and cannot contact his co-accused or the State’s witnesses.

Gustavo, who was released on 15 December last year, swore under oath before Oosthuizen last year that he had been offered employment, and would lose the opportunity if not released on bail. 

He also informed the court that he would be able to work from home and earn money for legal fees. 

As 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 Shudifonya and Phillipus Mwapopi are also seeking to regain their liberty. 

Their hearing is scheduled to resume on 21 February 2022. 

Shanghala’s former employee and now co-accused Nigel van Wyk earlier  abandoned his bail application. He, however, informed the court that he would be launching a new application this 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 to 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 with 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.