Dunaiski challenges bail refusal as flawed and biased
Olivia Dunaiski, one of the accused in the Namcor-Enercon scandal, has argued in a pending High Court bail appeal that the magistrate who denied her release adopted a fundamentally flawed approach, failing to properly assess the evidence and the individual circumstances of each applicant.
Dunaiski was arrested on 8 July 2025 alongside former Namcor managing director Imms Mulunga, the Elindi brothers, Peter and Malachia, and former Namcor finance executive Jennifer Hamukwaya, among others.
In her founding affidavit, Dunaiski contends that the bail refusal was not the result of a careful, case-by-case assessment, but rather a “one-size-fits-all” decision that treated all applicants as the same.
She argues that this approach undermined the fairness required in bail proceedings, particularly when personal liberty is at stake.
The appellant further alleges that the magistrate displayed bias during the proceedings and placed undue reliance on the version of the police investigating officer, while disregarding evidence presented by the defence.
According to the affidavit, this failure to judiciously weigh competing versions resulted in findings that were neither balanced nor grounded in a proper assessment of the facts.
Dunaiski says these arguments form the basis of her claim that the appeal has strong prospects of success.
She submits that the alleged misdirection at the bail stage strengthens her application for condonation, which seeks to excuse the late noting and prosecution of the appeal.
Procedural grounds
Dunaiski maintains that bail matters require an individualised enquiry and that the failure to conduct such an inquiry amounts to a serious irregularity.
She argues that the High Court should consider the merits of the appeal in light of these alleged shortcomings, rather than dismissing the matter on procedural grounds.
In her application, Dunaiski is asking the High Court to grant condonation for the late appeal, the reinstatement of the appeal and condonation for the late filing of her heads of argument.
She explains that the delays were largely occasioned by factors beyond her control, including prolonged bail proceedings in the magistrate's court, delays in the preparation and dispatch of the court record, and the late registration of the matter on the e-Justice filing system.
According to the affidavit, the case was only formally registered on 24 December 2025, leaving little scope for compliance with procedural timelines.
Dunaiski further states that the delay coincided with the festive season court recess, during which legal practitioners’ offices were also closed, complicating efforts to meet filing deadlines.
She also disputes the State’s reliance on a strict 14-day period for noting bail appeals, arguing that bail proceedings are sui generis and civil in nature.
In her version, the applicable rule allowed a longer period, and even if the shorter timeframe were applied, the appeal would have been only marginally out of time.
The appellant maintains that the State will not suffer any prejudice if condonation is granted, while she continues to suffer ongoing prejudice through continued incarceration while awaiting trial.
She argues that bail matters are inherently urgent, given their direct impact on personal liberty.
Dunaiski concludes that the High Court should exercise its discretion in her favour, allowing the appeal to be heard on its merits rather than being dismissed on technical grounds. She remains in custody pending the outcome of the application.
Dunaiski was arrested on 8 July 2025 alongside former Namcor managing director Imms Mulunga, the Elindi brothers, Peter and Malachia, and former Namcor finance executive Jennifer Hamukwaya, among others.
In her founding affidavit, Dunaiski contends that the bail refusal was not the result of a careful, case-by-case assessment, but rather a “one-size-fits-all” decision that treated all applicants as the same.
She argues that this approach undermined the fairness required in bail proceedings, particularly when personal liberty is at stake.
The appellant further alleges that the magistrate displayed bias during the proceedings and placed undue reliance on the version of the police investigating officer, while disregarding evidence presented by the defence.
According to the affidavit, this failure to judiciously weigh competing versions resulted in findings that were neither balanced nor grounded in a proper assessment of the facts.
Dunaiski says these arguments form the basis of her claim that the appeal has strong prospects of success.
She submits that the alleged misdirection at the bail stage strengthens her application for condonation, which seeks to excuse the late noting and prosecution of the appeal.
Procedural grounds
Dunaiski maintains that bail matters require an individualised enquiry and that the failure to conduct such an inquiry amounts to a serious irregularity.
She argues that the High Court should consider the merits of the appeal in light of these alleged shortcomings, rather than dismissing the matter on procedural grounds.
In her application, Dunaiski is asking the High Court to grant condonation for the late appeal, the reinstatement of the appeal and condonation for the late filing of her heads of argument.
She explains that the delays were largely occasioned by factors beyond her control, including prolonged bail proceedings in the magistrate's court, delays in the preparation and dispatch of the court record, and the late registration of the matter on the e-Justice filing system.
According to the affidavit, the case was only formally registered on 24 December 2025, leaving little scope for compliance with procedural timelines.
Dunaiski further states that the delay coincided with the festive season court recess, during which legal practitioners’ offices were also closed, complicating efforts to meet filing deadlines.
She also disputes the State’s reliance on a strict 14-day period for noting bail appeals, arguing that bail proceedings are sui generis and civil in nature.
In her version, the applicable rule allowed a longer period, and even if the shorter timeframe were applied, the appeal would have been only marginally out of time.
The appellant maintains that the State will not suffer any prejudice if condonation is granted, while she continues to suffer ongoing prejudice through continued incarceration while awaiting trial.
She argues that bail matters are inherently urgent, given their direct impact on personal liberty.
Dunaiski concludes that the High Court should exercise its discretion in her favour, allowing the appeal to be heard on its merits rather than being dismissed on technical grounds. She remains in custody pending the outcome of the application.
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