By: Justicia Shipena
Prosecutor general Martha Imalwa says she will study the ruling by High Court judge Herman Oosthuizen on Fishrot accused Ricardo Gustavo’s bail appeal.
Oosthuizen on Tuesday refused the State’s application for leave to appeal to the Supreme Court against Gustavo’s bail.
“I just saw the judgement, and we need to study it and see the way forward,” she said.
Imalwa said she could not comment further on the ruling.
Oosthuizen granted Gustavo bail of N$800 000 on 21 December 2021 with several stringent conditions.
“The State’s application for leave to appeal to the Supreme Court is refused,” said the High Court judge during his judgement.
“I conclude that there is no reasonable prospect that the Supreme Court will come to another conclusion or that the Supreme Court will come to a conclusion that I exercised my discretion wrongly in the circumstances,” he said.
The matter is finalised and removed from the court’s roll.
According to Oosthuizen, on 21 December 2021, the court delivered its judgment and reasons for granting bail to Gustavo.
Oosthuizen added that the court’s discretion to grant bail was not annulled by the 1991 amendment of Section 61 of the Criminal Procedure Act.
“The court’s discretion was restored to the extent that the court may refuse bail concerning certain scheduled offences if the court deems it in the interest of justice or the interest of the administration of justice,” he said.
He added that the discretion to impose bail conditions to provide for the freedom of the Gustavo. Adding that, the interest of justice or the interest of the administration of justice remains with the court.
In this light, Oosthuizen said the court heard the evidence of Gustavo and that he was able to form a first-hand impression concerning his serious intention to stand trial.
Moreover, he said the court also heard the evidence of the investigating officer and took notice of the State’s concerns.
According to him, the State, in the bail application, provided the court with documents it intends to use in the trial to show that it has a strong case against Gustavo.
“It’s arguably a strong case with the full awareness that the investigating officer was not there to prove the State’s case on the merits.”
However, he stressed that the court is not required to find the permissibility of the documents provided from the bench or on the documents provided through the investigating officer, who is a secondary witness.
“Hearsay evidence by the State in bail applications is allowed based on the inherent urgency of bail applications,” he said.
In this matter, Oosthuizen said the court adjudicated a second bail application on new facts.
“Where, as in the present application, the state could have presented direct evidence concerning the alleged tax fraud; direct evidence of conspiracy; direct evidence concerning the proposed 24/7 GPS monitoring device, and has elected not to do so.”
The State, he said, should not complain afterwards when the court, in the exercise of its discretion, allows the Gustavo on bail in the interest of justice.
Hence, Oosthuizen said the bail conditions were designed to address the interests and concerns of both Gustavo and the State while preserving the interest of justice.
He added that he incorporates the reasons for judgment read together with the court orders on 21 December 2021.
In her appeal, Imalwa said Oosthuizen failed to consider and make an appropriate ruling on whether or not the grounds that Gustavo tendered constituted new grounds that warranted him to consider the bail status of the Fishrot accused.
Imalwa had said Oosthuizen was misdirected and failed to consider and make an appropriate ruling.
She had said Oosthuizen found himself swayed with the offer to have Gustavo fitted with a GPS device while fully aware that no legal framework exists that provides for the use of GPS devices to track suspects.
At that time, Oosthuizen had a narrow view of public interest and failed to consider that the public interest is broader and needs a comprehensive interpretation.
Imalwa insisted that Gustavo faces serious charges and has failed to answer to the documentary evidence provided by the State and that he will be convicted on some of the charges he had no defence to during the bail hearing.
She was also of the view that he would fee as he has no work ties to Namibia.
Some of Gustavo’s bail conditions state that he will not be permitted to leave his upmarket Finkenstein Estate, 12 km east of Windhoek, between 14h00 and 07h00 the next day and will be on house arrest in the evenings.
He also reports twice daily at the Kappsfarm Police Station between 07h00 – 08h00 and 12h00 – 13h00. He signs any attendance register provided by and with the officer on duty before leaving the Kappsfarm Police Station.
Gustavo is accused of having used fisheries agreements between Namibia and Angola to get access to fishing quotas to benefit him and the other fishrot accused. These include former fisheries minister Bernard Esau, former justice minister Sacky Shanghla and his former colleague at Investec James Hatuikulipi.
Esau allegedly allocated 50 000 metric tonnes of horse mackerel quotas to Namgomar Pesca Namibia, of which Gustavo was the director, from 2014 to 2019.
Namgomar Pesca Namibia then sold those quotas to Samherji. During the bail hearing, the State alleged that payments were dished out amongst the fishrot accused.
Gustavo faces charges of fraud, racketeering and money laundering, amongst others.