State lodges appeal against Gustavo bail
04 January 2022 | Justice
Prosecutor-General (PG) Martha Imalwa has set the ball rolling to fight the release of Fishrot accused Ricardo Gustavo from jail in December.
Judge Herman Oosthuizen granted the former Investec executive bail of N$800 000, which Gustavo paid hours after the ruling.
In her appeal notice, Imalwa said High Court Judge Herman Oosthuizen was misdirected and failed to consider and make an ‘appropriate’ ruling.
Her dismay also stems from the fact that Oosthuizen found himself ‘swayed’ with the offer to have Gustavo fitted with a GPS device while fully aware that no legal framework exists that provides for the use of GPS devices to track suspects.
“There is no legal framework that provides for the use of such GPS monitoring devices in Namibia and, more so, the honourable judge did not even identify the type of GPS device or by who and how it should be determined that can be effectively put to use in Namibia.”
According to her, Oosthuizen has a narrow view on public interest and failed to consider that the public interest is broader and needs a comprehensive interpretation.
“Evidence tendered by the State showed that the respondent [Gustavo] was or is a member of a sophisticated syndicate whose criminal activities allegedly had a devastating and crippling negative effect on the economy and the state resources and that the public interest surrounding the now infamous Fishrot scandal is debatably intense,” she said.
Imalwa insisted that Gustavo faces serious charges and has failed to answer to the documentary evidence provided by the State and that he will be convicted on some of the charges he had no defence to during the bail hearing.
He will flee
According to Imalwa, Gustavo has no work ties to Namibia and is likely to lose his assets, which are currently frozen and forfeited to the State, which makes him a flight risk.
She also charged that Oosthuizen failed to consider that Gustavo frequently travels to Angola, where he still has family ties after his parents emigrated to Namibia.
“Not finding that Gustavo’s refusal to take the court in confidence regarding the basic details of this so-called offer or employment indicates that Gustavo did not show that he will be gainfully employed upon release on bail. That four of his co-accused are members of the criminal enterprise including a Namibian citizen are at large, and can easily accommodate Gustavo.”
GPS constitutional crisis
The Anti-Corruption Commission (ACC) yesterday said it finds itself in a “constitutional crisis” over the GPS device that was supposed to be fitted to Gustavo, saying he cannot be tracked “like an animal”.
When he granted Gustavo bail last month, Judge Oosthuizen permitted the State, at its own cost, to affix a personal GPS device to Gustavo’s wrist or ankle in order to monitor his movements around the clock.
It was also ordered that the same GPS devices, at the cost of the State, would be fixed onto the vehicles at his disposal while he is out on bail.
Gustavo himself, during his plea for bail in a bid to convince the court that he is not a flight risk, volunteered to be fitted with a GPS bracelet by means of which the State, police and the ACC could monitor him.
However, ACC investigator Phelem Masule said nothing of this sort has been done yet, because it is a violation of the Namibian Constitution and Gustavo’s rights.
“We did not do anything. We never thought of doing something like this, as it has never been done. How do you take person and tie them like an animal? That GPS story is something we have never dealt with in the system. There are even health implications for putting such a device on a human being. Who is going to answer for that? It has never even been tested. It has never been done. We have to be guided on this,” he said.
Masule also pointed out that they do not have the resources available to procure such devices and may have to put in a special request.