Shanghala and crew await bail appeal verdict
The Supreme Court's full bench, consisting of judges Theo Frank, Jeremiah Shongwe and Kananelo Mosito, yesterday presided over a hearing for an appeal by former justice minister Sacky Shanghala and five other defendants against the rejection of various bail applications. Shanghala stands accused - along with co-applicants James Hatuikulipi, Pius Mwatelulo, Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi - of fraud, corruption, money laundering and racketeering in the ongoing Fishrot corruption saga.
Shanghala and Hatuikulipi were arrested in November 2019, and the others not long after.
Advocate Vas Soni took the lead on behalf of Shanghala, Hatuikulipi and Mwatelulo, with advocate Thabang Phatela arguing on behalf of Nghipunya, Shuudifonya and Mwapopi.
Soni highlighted that the accused had already been behind bars for two years when their first bail application was rejected, and that this was against the constitution and their right to a speedy trial. He referred to article 12 of the constitution, and specifically section 1B which prescribes that a trial "shall take place within a reasonable time, failing which the accused shall be released”.
To this, judge Mosito responded that this only applies if delays were unreasonable, while Frank elaborated that this would mean the accused would also be freed from prosecution.
Soni said they are only focused on bail, not for the entire case to be thrown out.
‘Irregular’ investigation
Furthermore, the lawyer said the investigation into complaints of money laundering and racketeering was done irregularly by the Anti-Corruption Commission’s (ACC) investigating officers, that the complaint should be rejected and that the seriousness of the case against his clients is thus reduced.
"Corruption would still remain a serious complaint, which we accept," he said.
He also challenged the court's previous expectation that the accused must bear the burden of justifying bail.
Phatela particularly emphasised the advancement of the public interest.
"It is not in the public interest that simply because a person is accused of corruption, they should rot behind bars," he said.
"The idea of public interest means that people who are accused are treated properly in accordance with the law," he said. He further insisted that social media attention cannot serve as a reason to withhold someone's freedom and that punishment before trial and the public's enjoyment thereof cannot be reasons to withhold bail.
Here, he made reference to a Biblical story in which a crowd shouted: ‘Crucify Him!’
Intention to flee
On behalf of the State, advocate Cliff Lutibezi insisted that the accused had already tried to defeat the course of justice, and would do so again without delay if they were released. Specifically, he referred to a charge of bribery worth N$250 000 brought against Hatuikulipi by the ACC, and to messages on Shanghala's cellphone - which was confiscated in prison - indicating that he was in the process of having forged documents made.
Lutibezi said there is ample evidence of intervention in the evidence already before the court. He also mentioned the cunning way in which information was hidden from prison guards.
"This person has no respect for the law," he said of Hatuikulipi.
About the former minister, the lawyer said: "He knows the law", adding that Shanghala had earlier specifically researched extradition from Dubai.
Evidence before the court indicated that N$4.1 million was paid out to Dubai, and that the money is still missing, Lutibezi added. This indicates his intention to flee, he said.
After the final arguments from Soni and Phatela, judge Frank said that the full bench would consider the matter and will announce when their decision will be revealed.
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Shanghala and Hatuikulipi were arrested in November 2019, and the others not long after.
Advocate Vas Soni took the lead on behalf of Shanghala, Hatuikulipi and Mwatelulo, with advocate Thabang Phatela arguing on behalf of Nghipunya, Shuudifonya and Mwapopi.
Soni highlighted that the accused had already been behind bars for two years when their first bail application was rejected, and that this was against the constitution and their right to a speedy trial. He referred to article 12 of the constitution, and specifically section 1B which prescribes that a trial "shall take place within a reasonable time, failing which the accused shall be released”.
To this, judge Mosito responded that this only applies if delays were unreasonable, while Frank elaborated that this would mean the accused would also be freed from prosecution.
Soni said they are only focused on bail, not for the entire case to be thrown out.
‘Irregular’ investigation
Furthermore, the lawyer said the investigation into complaints of money laundering and racketeering was done irregularly by the Anti-Corruption Commission’s (ACC) investigating officers, that the complaint should be rejected and that the seriousness of the case against his clients is thus reduced.
"Corruption would still remain a serious complaint, which we accept," he said.
He also challenged the court's previous expectation that the accused must bear the burden of justifying bail.
Phatela particularly emphasised the advancement of the public interest.
"It is not in the public interest that simply because a person is accused of corruption, they should rot behind bars," he said.
"The idea of public interest means that people who are accused are treated properly in accordance with the law," he said. He further insisted that social media attention cannot serve as a reason to withhold someone's freedom and that punishment before trial and the public's enjoyment thereof cannot be reasons to withhold bail.
Here, he made reference to a Biblical story in which a crowd shouted: ‘Crucify Him!’
Intention to flee
On behalf of the State, advocate Cliff Lutibezi insisted that the accused had already tried to defeat the course of justice, and would do so again without delay if they were released. Specifically, he referred to a charge of bribery worth N$250 000 brought against Hatuikulipi by the ACC, and to messages on Shanghala's cellphone - which was confiscated in prison - indicating that he was in the process of having forged documents made.
Lutibezi said there is ample evidence of intervention in the evidence already before the court. He also mentioned the cunning way in which information was hidden from prison guards.
"This person has no respect for the law," he said of Hatuikulipi.
About the former minister, the lawyer said: "He knows the law", adding that Shanghala had earlier specifically researched extradition from Dubai.
Evidence before the court indicated that N$4.1 million was paid out to Dubai, and that the money is still missing, Lutibezi added. This indicates his intention to flee, he said.
After the final arguments from Soni and Phatela, judge Frank said that the full bench would consider the matter and will announce when their decision will be revealed.
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