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Namibia: Bail – An assessment of the Fishrot accused

31 August 2022
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Overview

  • Pre-trial detention refers to the practice of depriving individuals of their fundamental freedoms because they are accused of committing an offence or because they are merely suspected of being involved in a crime.
  • This article addresses police bail vs formal bail and provides a brief analysis of two bail applications with different outcomes.
  • The varying decisions discussed in this article demonstrate that a court may apply different interpretations of what constitutes the ‘interests of justice’ based on the facts of each case.

Pre-trial detention refers to the practice of depriving individuals of their fundamental freedoms because they are accused of committing an offence or because they are merely suspected of being involved in a crime. In this article two themes will be addressed: police bail vs formal bail and a brief analysis of the infamous Fishrot bail applications.

Police bail vs formal bail applications

Bail may in certain limited circumstances be granted by the police. This kind of bail is referred to as ‘police bail’. Police bail may only be granted for very minor offences, such as driving under the influence of alcohol. If police bail cannot be granted in terms of section 59 of the Criminal Procedure Act, Act 51 of 1977 (Act), or if it can be granted but is refused, an accused has every right to apply to a lower court for bail at their first compulsory appearance.

An accused who is in custody in respect of any offence, other than an offence referred to in Part II, Part III or Part IV of Schedule 2 may, before their first appearance in a lower court be released on police bail.

Police bail is not possible in respect of offences referred to in Part II or Part III of Schedule 2 of the Act. Parts II and III include virtually all serious crimes, for example, treason, sedition, murder, rape, arson, kidnapping, robbery, theft, fraud, and assault (when a dangerous wound has been inflicted).

Everyone who is arrested for allegedly committing an offence has the right to be released from detention if the interests of justice permit this, subject to reasonable conditions. An accused is, in the absence of a conviction by a court of law, also constitutionally presumed to be innocent. The purpose of bail is to strike a balance between the interests of society and the liberty of an accused.

An analysis of the Fishrot bail applications

On 1 April 2022, six applicants who had been arrested during different times and detained for periods of between one and two years on charges of corruption, money laundering and fraud, applied for bail pending trial.

The State opposed their application, contending that there was a strong prima facie case against them; that the applicants would abscond and interfere with the case and witnesses; and that it was not in the interests of justice that they be released on bail.

The Court further held that the applicants were facing serious charges involving more than NAD 317 million and that, if they were found guilty, the sentence to be imposed would be severe and there was a likelihood that they would abscond in order to avoid serving long custodial sentences.

The State had led evidence that four of the applicants were facing charges of obstructing the course of justice and had tried to interfere with witnesses and, in the circumstances, the applicants had not satisfied the Court that, if they were released on bail, they would not distort or suppress evidence, and therefore the likelihood that they would interfere with the evidence was reasonably real.

The applicants also failed to place sufficient information before the Court to enable the Court to make a proper assessment of the merits and demerits of admitting them to bail. The applicants had simply stated that they were businessmen, they supported their families, and that they would stand trial and would not interfere with witnesses.

The Court was satisfied that they had failed to prove that it would be in the interests of justice to grant them bail. The applications were accordingly dismissed. The six have since appealed these findings to the Supreme Court and it remains to be seen if a different conclusion will be reached by the Supreme Court.

Contrary to the findings of the Court in the aforementioned matter a different judge of the High Court arrived at a different conclusion in the bail application of Mr Ricardo Jorge Gustavo around 21 December 2021.

The successful application was Mr Gustavo’s second application. The first application was made around December 2019 in the Magistrate’s Court. This was about two years before the second application was made. The first bail application was refused on the basis that it was not in the interest of the public or administration of justice that Mr Gustavo be released on bail.

The successful application was based on new facts, being that the investigations were complete with no threat of interference, additional evidence, medical reasons, changed personal circumstances and infringement of constitutional rights, amongst others. In the successful matter the judge held that the interest of the administration of justice was always a factor which the courts have considered in bail applications under section 60 of the Criminal Procedure Act. The public interest for consideration by the courts in bail applications is the common law as pronounced by the courts and the provisions of the Constitution and legislature.

The Court in this matter held that a public outcry which fell foul of the above principles deserves no accreditation or consideration by our courts and that social media opinions, public gatherings and public demonstrations are not barometers of public interest a court should consider.

In this context the Court held that while strict bail conditions serve the public interest, the proper administration of justice, the constitutional values and the general tenets of allowing an accused out on bail in order that he can properly prepare for trial, consult freely with his lawyers and take care of his own health, saved the State unnecessary expenses and a duty to take care of him while incarcerated. It also allowed the accused under the circumstances to take care of himself and the needs of his children and family members. Mr Gustavo was granted bail in the amount of NAD 800 000.

The State has launched an appeal to the Supreme Court to overturn this ruling.

Conclusion

An application to be released on bail is an ancient, traditional procedure and a fundamental right. Where it was established above that bail in itself is not a right, an accused person has the right to apply for bail and to be granted bail when the interests of justice so dicate. The varying decisions discussed in this article demonstrate that a court may apply different interpretations of what constitutes the ‘interests of justice’ based on the facts of each case.