'Strange’ Gustavo judgement criticised
High Court judge Herman Oosthuizen’s comments that the Fishrot accused is unlikely to be found guilty of the charges against him have been labelled ‘strange’ and ‘pre-emptive’.
23 December 2021 | Justice
The comprehensive bail but ‘strange’ judgement of one of the Fishrot accused by High Court Judge Herman Oosthuizen has ruffled some feathers.
According to Oosthuizen, it is unlikely Ricardo Gustavo will be found guilty of all or some of the charges - a position experts have criticised as presumptive.
Oosthuizen said while under oath, Gustavo not only proclaimed his innocence and his intention to stand trial, but also said he would not evade justice or interfere or tamper with state witnesses. He added that he believes Gustavo went out of his way to show that he is willing to cooperate with the State, such as having himself fitted with a GPS device to have his movements monitored around the clock.
“It is true that the State supplied the court with numerous documents it intends to use at the trial. It is also true that on some of those documents, the applicant was at pains to give a compelling explanation indicating innocence per se, but then it was not his duty. At the trial, the State will have the duty to prove that the accused is guilty beyond reasonable doubt.”
Political commentator Ndumba Kamwanya found Oosthuizen’s judgement “strange and pre-emptive”, which may not bode well for the future of the Fishrot trial.
“I think it is very strange to make these remarks in a bail hearing, because it pre-empts the criminal case. That pre-emptory statement is troublesome in terms of the pending case and gives a wrong impression... I am sure from a legal perspective it is something permissible to say, but my understanding is that the bail hearing should solely focus on the bail aspect,” he said.
Analyst Graham Hopwood said the judge is entitled to that view, but added that he thought the prosecution showed they had a serious case during the bail hearing.
“But the decision on guilt or innocence can only be taken by the trial judge on full presentation of the evidence.”
Hopwood added that while it is commonly understood that a judge will base his or her judgement on matters of law and not on public opinion, it was unnecessary to dismiss public opinion and outrage the way he did.
“He didn't need to be so dismissive. He could have just said he is basing his decision on legal principles. It is surely a good thing if people are outraged by alleged corruption and being able to express such views is fundamental to democracy.”
In his judgement, Oosthuizen dismissed social media, public gatherings and protests as barometers of public interest.
Defending his position to grant Gustavo bail, he said he is convinced that “appropriate strict bail conditions serve the public interest” and the “proper administration of justice”, and allows an accused to properly prepare for trial.