Gustavo back behind bars

All the Fishrot accused are behind bars again after the only one who was free on bail had to return to the Windhoek Central Prison last Friday following a court order.

This after the State appealed the High Court's decision to grant Ricardo Gustavo bail, and won. A full bench ruled that judge Herman Oosthuizen ruled incorrectly when he granted Gustavo bail of N$800 000 in December 2021.

After he was released, the State applied for leave to appeal, but Oosthuizen dismissed the application.

The State then requested the Supreme Court to review the judge’s decision, and that request was granted.

Judges David Smuts, Elton Hoff and Sylvestor Mainga heard the appeal on 14 November and delivered a verdict on Friday.

This will be Gustavo's third Christmas behind bars.

He first applied for bail at the Windhoek Magistrate's Court in May 2020. The application was rejected in June 2020 and he appealed against the decision in the High Court, but it proved unsuccessful.

His next application, which was granted by Oosthuizen, was based on new facts because defendants cannot bring multiple applications on the same facts after applications have failed.

Verdict

Last week’s High Court ruling indicated that none of the new facts Gustavo's bail application was based could lead to a conclusion to grant his application. Especially in the context that his previous bail application was turned down.

"The High Court had to consider five new facts and come to a conclusion. Judge Herman Oosthuizen's ruling only briefly referred to two of the new facts,” the ruling read.

“He failed to establish the impact of these new facts or determine whether they prompted the court to grant bail. The court did not exercise its discretion correctly.”

According to the ruling, another reason why the State's appeal was successful is because the High Court failed to consider evidence by Anti-Corruption Commission (ACC) chief investigating officer, Andreas Kanyangela.

"The allegations against the respondent [Gustavo] are serious and deal with large sums of money (about N$150 million), as well as criminal actions aimed at diverting state resources to the benefit of himself and his co-accused within a syndicate involving ministers.

“The court failed to take into account the seriousness of the offence and its impact on the public as well as the adverse impact on the rule of law. Accountability is also an issue in which the public has an interest,” the verdict read.

Contradiction

In its ruling, the Supreme Court also referred to two incidents in which Gustavo contradicted himself.

In his most recent evidence, he admitted that he profited N$22.5 million from his involvement with fishing company Namgomar, but denied that it was the product of illegal activities. However, during his first bail application in the Windhoek Magistrate's Court, he completely denied allegations that he received money from Namgomar.

He also testified during his recent application for bail that he was indeed aware of co-accused James Hatuikulipi's involvement with a corporate entity called Tundavala Investments.

“This answer stands in stark contrast to his answers at the first bail application when he was asked about Tundavala receiving payments. He denied its existence by saying: 'Who is Tundavala Investments?'"

According to the ACC's investigation, Tundavala received US$4 million from Icelandic company Samherji, which was apparently diverted to an account in Dubai.