The State has maintained the High Court misdirected itself when it ordered that one of the Fishrot accused, Ricardo Gustavo, be released on bail last year. 

The prosecution, led by deputy prosecutor general Ed Marondedze, last Friday asked the High Court’s leave to approach the Supreme Court to appeal the release of Gustavo on bail. 

In December last year, Gustavo was granted bail of N$800 000 by Judge Herman Oosthuizen, with numerous stringent conditions, including restricting him largely to his Finkenstein Estate home. Other bail conditions included reporting twice daily at the Kappsfarm Police Station and the Anti-Corruption Commission’s offices every Monday, Wednesday and
Friday. 

Gustavo 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 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 to pay for his legal fees. 

However, according to Marondedze, the court failed to consider that Gustavo faces serious charges, which derive from activities carried out by an organised criminal syndicate, which he was a part of. 

He further said it was not in the public’s interest nor administration of justice that Gustavo was released on bail. 

In addition, Gustavo has not been truthful about his finances or his employment status, the prosecution alleged. “How will the public feel seeing a man who committed these crimes and is left to enjoy the spoils of his criminal activities,” said Marondedze. 

He further argued although Gustavo’s offer to wear a GPS tracking device was favourable, it is impossible for the State to enforce it as it is not empowered to do so. In his defence, Judge Oosthuizen said he only had one bail application to consider.

 “I cannot panel beat the law in the name of public interest or administration of justice. I know the public’s opinion has its value but that value should be given to its representatives so they may change the laws. The systems are to blame,” said Oosthuizen. 

He added the primary interest of justice dictates that the constitution must be followed and accused persons should be tried within a reasonable time period. Thus, he is not convinced that the Fishrot trial will commence this year. 

Gustavo’s lawyer Trevor Brokerhoff argued the State has no prospect of winning in the Supreme Court if they are granted leave to appeal. 

“In light of the evidence presented during the hearing, I do not see anything that would compel the Supreme Court to come to a different conclusion,” said Brokerhoff.  He indicated Gustavo is not a flight risk. He has complied with all 16 bail conditions imposed on him. Brokerhoff informed the court that they will provide information on Gustavo’s employment status and when he is expected to commence employment. 

The court will give a ruling in the matter on 29 April. 

-mamakali@nepc.com.na