The High Court said the failure of the Windhoek Magistrate Court to obtain material information relevant to the outcome of other bail proceedings in which Michael Amushelleo and Dimbulukeni Nauyoma were involved constituted a misdirection.
Amushelelo and Dimbulukeni were arrested in May this year and spent 99 days in prison after the Windhoek Magistrate’s Court had denied them bail.
The other six co-accused were released on warning.
The Windhoek High Court released the two last week after an appeal that was heard by judges Christie Liebenberg and Boas Usiku.
The magistrate’s court had denied bail saying that the activists were out on bail on other pending matters with bail conditions.
Amushelelo is currently out on bail in another case before the High Court regarding charges related to fraud, tax evasion, money laundering and contravening the Prevention of Organised Crime Act 29 of 2004.
Amushelelo also has a culpable homicide conviction pending an appeal in the high court.
He is currently on a N$35 000 bail with conditions, which the judges said he had adhered to.
Nauyoma is also out on bail in yet another pending trial on charges under the Squatters Proclamation AG 21 of 1985.
The Windhoek Magistrate’s Court had also denied bail saying that the charges against the activists were severe and that releasing them on bail would not be in the public interest.
The magistrate’s court also argued that the activists would commit similar offences if they were released on bail and that the state had a strong case against them.
The High Court also said the effect of releasing some accused on warning signalled a downscaling of the seriousness of the offence.
“For all means and purposes, their co-accused were in the same boat and ought to have been treated the same, except where compelling circumstances existed which required a different approach,” the judges said.
According to the judges, no evidence remotely explained the differentiation made by the police between the appellants and their co-accused when releasing the latter on warning.
“Other than W/O Nakanyala’s testimony that this decision was taken by senior police officers, he was unable to advance any reasons why the appellants were not treated in the same manner. This prompted the magistrate’s remark in the judgement that he was not privy to the circumstances on which that decision was based and that the police might have had grounds to do so.
“There is nothing in the record that remotely explains or justifies the inconsistent handling by the police of the appellants’ case, as opposed to that of their co-accused.
They said while the true reasons were not explored, the only reasonable conclusion to reach is that the disparity was because both apellants were already out on bail on other cases.
“The failure on the part of the magistrate to obtain material information relevant to the outcome of bail proceedings constituted a misdirection,” the judges said.
According to the judges, not every misdirection leads to the entire proceedings being vitiated as the effect must be decided against the evidence.
Ruling on the magistrate’s assertion that there was a likelihood that the activists would commit a similar offence, the judges said there was no evidence before the court to show a real probability of the accused committing a similar crime when released on bail.
“When deciding the risk of further offences being committed, bail may be refused if there is a likelihood that the accused will commit further offences while out on bail,” the judges said.
The magistrate’s court also cited public interest and the interest of justice as a reason for denying bail.
But the high court judges said the protest action was an isolated incident aimed at specific business owners, not the public.
Although this does not mean that the rights of these business owners are inferior to that of others, the fact remains that the accused’s conduct was limited to a specific incident brought under control with their arrest and co-accused.
The judges said warrant officer Nakanyala who investigated the case, relied on hearsay.
“The hearsay evidence of W/O Nakanyala was left unchallenged,” they said.
The judges added that the strength of the state’s case, as testified by the investigating officer, was misplaced in the absence of any risk of absconding.
They contended that such testimony amounted to inadmissible hearsay evidence and that the magistrate’s court gave undue weight to the content of evidence about video recordings and statements which were never placed before the court.
According to the judges, in the absence of evidence concerning the risk of possible harm or danger to the public caused by the appellants, the court erred when refusing bail based on it not being in the public interest.
“The interest of the administration of justice does not require the continued detention of the appellants, pending the finalisation of their case. The court’s decision when refusing bail in this matter is accordingly found to be wrong and falls to be set aside,” the judges ruled.