Windhoek High Court Judges Christie Liebenberg and Claudia Claasen yesterday dismissed an appeal by suspended Fishcor CEO Mike Nghipunya against the refusal of Deputy Chief Magistrate Ingrid Unengu to release him on bail. 
“In the premises we find on the evidence presented, there exists a strong case against the appellant and, if convicted, a substantial sentence of imprisonment is likely to be imposed,” the judges remarked. 

“When looking at the seriousness of the offence, the manner in which it was perpetrated and the circumstances surrounding this matter, it is our considered view that it would not be in the interest of the public or the administration of justice for the appellant to be released on bail.”

Nghipunya, who has been in custody since February, wanted to be released on bail pending his trial on charges of fraud, contravening the Anti-Corruption Act and corruptly using office for gratification, as well as money laundering. 

In this case, Nghipunya is charged alongside former fisheries minister Bernhard Esau, former minister of justice Sacky Shanghala, former Investec Asset Management Namibia managing director James Hatuikulipi, Esau’s son-in-law Tamson Hatuikulipi and Pius Mwatelulo. 
On the charge of corruptly using office for gratification, the prosecution is alleging that Nghipunya, alongside Esau, Shanghala and James, used their offices or positions in a public body to obtain gratification to obtain N$75.6 million that was paid to them or entities of their choice between August 2014 and December 2019. 

He denied the charges and said in an affidavit read into the record by his lawyer, Advocate Thabang Phatella, instructed by Milton Engelbrecht, that he has no idea why he has been charged. 
The judges asked whether the appellant placed sufficient information before court dealing specifically with the charges. 
The answer, they said, is a huge no. 

According to the judges, Nghipunya only proffered a bare denial to the allegations contained in the charge annexures. They added what can be gleaned from the cross-examination by the appellant’s counsel is that he places the responsibility for the various transactions squarely on the shoulders of Esau and James Hatuikulipi, who, according to him, gave him instructions that he could not object to. 

This contention, the judges stated, has no probative value when unaccompanied by substantiated facts and supportive evidence.
“Defence attorneys in bail applications often submit to court that the mere opinion of the investigating officer should not suffice. But what is often forgotten is that the case for the applicant also rests on his mere say-so. The court in such circumstances is left no different than before the application has commenced. What is needed is for an appellant to put his case before the court on a balance of probabilities.”

To this end, they said, the onus of proof lies on the applicant and it, therefore, follows that a skeleton application or one riddled with mere say-so by an applicant is likely to fail for that reason and not necessarily because the applicant managed to place every allegation made by the investigating officer under cross-examination in dispute, where such dispute is unsubstantiated. 

The judges further said it is common cause that from the arrest of the accused and his co-accused, the courtrooms have been filled with members of the public and the matter has been widely reported by the media. 

While this is not in itself decisive as public expectation is not synonymous with public interest, it is a factor that must be taken into account. 
For a country that suffers from corruption, fraud and the misappropriation of public and private funds on a daily basis, it is not hard to comprehend why the public has placed their attention and outcry in this matter, they said. 

They went on to say that in their considered view, the magistrate was completely justified to refuse bail on these factors.
The State was represented by Cliff Lutibezi. 
- rrouth@nepc.com.na