The appellants together with three other individuals are accused persons in a trial that is yet to commence in the High Court (arraigned alongside the nine individuals are a number of corporations and trusts in which one or more of these individuals have an interest). The accused persons face charges of racketeering and money laundering pursuant to the provisions of the Prevention of Organised Crime Act 29 of 2004 (POCA), corruption pursuant to the provisions of the Anti-Corruption Act 8 of 2003 (the ACA), fraud in the form of tax evasion, conspiring to commit crimes, theft and obstructing or attempting to defeat or obstruct the course of justice – involving a total amount in excess of N$317 million siphoned from an unlawful scheme to personally benefit them from fishing quotas allocated by the State. The appellants have all been incarcerated since their arrest: the first to third appellants were arrested on 27 November 2019; the fourth appellant on 17 February 2020 and the fifth and sixth appellants on 21 December 2020. Fourth appellant applied for bail during June 2020, but it was refused by the magistrate. He appealed to the High Court, but his appeal was unsuccessful. Fourth appellant however then joined forces with the other appellants to bring the bail application which is the subject matter of this Supreme Court appeal.
The court a quo found that it would not be in the interest of justice to grant the appellants bail - this was on the back of findings that the court a quo could not ‘make a finding whether the applicants will or will not abscond’, that the appellants did not satisfy the court that if they are released on bail they will not distort or supress evidence and thus ‘the likelihood that they would interfere with the evidence is reasonably real’ and that their ‘personal circumstances, (their health, their family relations, employment and business environments)’ which the appellants placed before the court a quo, were ‘neither unusual nor do they singly or together warrant release of the applicants in the interest of justice’.
On appeal, the appellants took issue with the signed judgment released on 11 April 2022. Appellants further contended that several factors had not been considered by the court a quo at the bail hearing, ie that the court a quo did not properly consider the impact on the appellants’ constitutional rights to liberty (Art 7) and to a fair trial (Art 12); that the State does not have a strong case against them – by attacking the manner in which the investigation was conducted; raising an issue of credibility of the State’s
key witness and whether he will come to testify and that charges based on POCA are fatally flawed and evidence in relation to these charges cannot be admissible at trial.
It was contended on behalf of the appellants that the signed judgment differs from the transcribed judgment which the judge a quo read into the record via the recording system from a pre prepared document on 1 April 2022 (the transcribed judgment). Appellants submitted that as the judge was functus officio in that after he delivered the transcribed judgment, the signed judgment must be declared a nullity or alternatively those portions of the signed judgment that do not coincide with the transcribed judgment must be deleted and treated as a nullity (pro non scripto).
The primary question for consideration on appeal is not what the appeal court would have decided had it heard the bail application, but whether it is satisfied that the decision of the court a quo was wrong in which case the appeal court can give a decision it considers should have been given.
Held that, the general principle in Cargo Dynamics Pharmaceuticals v Minister of Health 2013 (2) NR 552 (SC) applies. This general rule is only strictly adhered to when it comes to signed judgments. Some leeway is however allowed when it comes to ex tempore judgments and it seems also to situations where the delivery of a judgment cannot, strictly speaking be said to be ex tempore, but is pronounced orally and not by the way of the handing down of a signed judgment. Further, s 176 of the Criminal Procedure Act 51 of 1977 (the CPA) makes provision for mistakes in pronounced judgments to be corrected.
Held that, the relevant paragraphs in the signed judgment supplements the transcribed judgment in line with the correct factual position and clears up a possibly obscure and ambiguous statement from the point of view of fourth to sixth appellants. Furthermore, even if the finding on this issue is not correct and that it was simply a mistake and not an ambiguity or obscurity then the court a quo was entitled to correct this mistake in terms of s 176 of the CPA as the judgment was signed by the judge in circumstances where it could not possibly prejudice the appellants in respect of appeal procedures that followed subsequent to its release.
Held that, paragraph 81 in the signed judgment did not form part of the transcribed judgment. This court does not agree with the State’s submission that this paragraph is in line with the tenor of the transcribed judgment. This is a different matter relating to the impracticality of addressing an issue with the appropriate conditions when considering bail to neutralise the likelihood of the appellants interfering with evidence. Whether conditions could be imposed to prevent appellants from interfering with evidence if granted bail was not a subject matter at all in the transcribed judgment. This additional justification to deny bail was not alluded to nor does it necessarily follow from the tenor of the transcribed record. In the result this paragraph in the signed judgment must be treated as pro non scripto.
It is thus held that, the signed judgment of 11 April 2022 sans para 81 thereof will be regarded as the judgment of the court a quo for the purposes of this appeal. For the purpose of the record it is ordered that para 81 of the signed judgment dated 11 April 2022 be struck from that judgment and regarded as pro non scripto as it was added to the judgment when the judge was functus officio having delivered an oral judgment to which the contents contained in para 81 could not be added to it subsequently.
Held that, the legal position on bail applications and appeals in Namibia has been restated recently by this court in State v Gustavo (SA 58/2022)  NASC (2 December 2022) endorsing the full bench decision in Nghipunya v State (HC-MD-CRI-APP-CAL-2020/00077)  NAHCMD 491 (28 October 2020) and this position is therefore applied in this appeal. With respect to the legal framework relating to bail applications and appeals, this court finds it necessary to express caution in respect of the use of South African case law as precedents. This is so because the South African underlying premise and legislation differs totally from that in Namibia. The South African Constitution contains a right to bail which is not present in the Namibian Constitution and furthermore the section in the South African CPA dealing with bail differs materially from s 61 of the Namibian CPA.
Held that, the reliance on Art 7 and Art 12 of the Constitution by the appellants is misdirected. The constitutional rights contained in these articles can and must be enforced independently from any bail application. If their liberty was interfered with in terms of a valid warrant of arrest in respect of a criminal charge then the release can only flow from a successful bail application or from an acquittal in respect of the criminal charges.
Appellants further submitted that all the charges based on POCA are fatally flawed as officials of the ACC investigated these charges (ie money laundering and racketeering) and that the evidence in relation to these charges cannot be admissible.
Held that, when the ACC refers matters to the Prosecutor-General, the referral need not only be in respect of the ACA offences, but can also be in respect of any other offences discovered during the investigation. The sections in the ACA fortify the position that where lawful investigations established facts that would sustain convictions or prosecutions in respect of more than one offence, it would be nonsensical to exclude it in respect of certain crimes but allow it in respect of others.
Held that, the objections raised on this basis are not likely to substantially affect the admissibility of the evidence in respect of the POCA charges.
Consequently, and once it is accepted prima facie, that the State has established a strong case to make against the appellants, then the appellants’ attack on the judgment of the court a quo falters at the starting block as the onus resting on the appellants to make out a case for their release on bail was not discharged. Further, considering the nature and magnitude of the allegations; the allegations relating to alleged attempts to interfere with the evidence and the likelihood of this continuing should they be released on bail and the role players involved (whose conduct struck at the very basis of our society) - the risk that any one of them will not stand trial or continue to interfere with evidence simply cannot be excluded and the court a quo cannot be faulted to not allow anyone of them bail.
All six appeals are dismissed.