High Court overturns Namcor-Enercon bail refusal, sharply rebukes magistrate

High Court judges Eileen Rakow and Philanda Christiaan last week delivered a scathing rebuke of Windhoek magistrate Linus Samunzala after overturning his decision to deny bail to several accused in the high-profile Namcor–Enercon fraud and corruption case, finding that his ruling was riddled by multiple material misdirections that failed to meet basic legal standards.

In a detailed judgment delivered on Friday, the court found that Samunzala had, in several critical respects, failed to properly exercise his judicial discretion when refusing bail.

The six accused – Peter Elindi (N$50 000), Malakia Elindi (N$50 000), Immanuel Mulunga (N$50 000), Jennifer Hamukwaya (N$50 000), Olivia Dunaiski (N$20 000) and Leo Nandago (N$20 000) – were granted bail following successful appeals to the Windhoek High Court after spending more than eight months in custody since their arrests in July last year.

The High Court set aside a September magistrate’s court ruling that had denied them bail.

In their ruling, the judges said Samunzala had failed, in particular, to consider whether appropriate bail conditions could mitigate the perceived risks.

"The complete absence of such an enquiry in the judgment reflects a failure to properly exercise the discretion entrusted to the court and is inconsistent with the approach endorsed… where the Supreme Court stressed that liberty must be jealously protected," the ruling states.

A central issue in the appeal was the magistrate’s reliance on public interest as grounds for denying bail.

The appeal court found that this reliance was not grounded in specific facts but rather in broad generalisations about the seriousness of economic crimes and the public attention the matter had attracted.

In this context, the magistrate was further found to have failed to identify how the release of each accused would prejudice the administration of justice.

No individual assessment

The judgment also criticised the magistrate for adopting a “one-size-fits-all” approach, treating the accused as a collective rather than assessing each case on its individual merits.

The appeal court said this was particularly evident in the treatment of the fifth appellant, Dunaiski, whom the magistrate described as “the only truthful applicant”, yet who was denied bail without any distinction being drawn between her and her co-accused.

Hamukwaya’s personal circumstances also drew sharp criticism from the appeal judges. The ruling noted that she is the mother of three minor children, aged five, 10 and 13, who were effectively left without parental care following the incarceration of both parents.

The High Court also took issue with the magistrate’s heavy reliance on evidence presented by Anti-Corruption Commission (ACC) investigating officer Oberty Inambao.

The court found that the magistrate accepted the investigating officer’s opinions without properly assessing their reliability or adequately engaging with criticisms raised during cross-examination.

Perception of bias

The judgment also raised concerns over the use of the term “Fuelrot” to describe the case, noting that such language, commonly used in media and public discourse, could create a perception of bias.

Having found that the magistrate’s decision was vitiated by several errors, the High Court upheld the appeals and set aside the refusal of bail.

The court set strict bail conditions, including the surrender of travel documents, movement restrictions, reporting requirements and prohibitions on interfering with witnesses or the investigation.

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