S v Esau and Another (HC-MD-CRI-APP-CAL 82 of 2020) [2021] NAHCMD 84 (26 February 2021)

S v Esau and Another (HC-MD-CRI-APP-CAL 82 of 2020) [2021] NAHCMD 84 (26 February 2021)

The magistrate did not misdirect himself in refusing bail. There was a strong prima facie case against the appellants, and the seriousness of the offences, public interest, and administration of justice justified refusal of bail. The use of affidavits was not disallowed, but the appellants' choice disadvantaged them compared to the State's viva voce evidence. The magistrate did not make a finding of guilt but properly assessed the strength of the State's case. The appellants failed to discharge the onus to show they are suitable candidates for bail.

Citation
[2021] NAHCMD 84
Parties
1st Appellant/appellant: Bernard Martin Esau; 2nd Appellant/appellant: Tamson T Hatuikulipi; Respondent: The State
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
26 February 2021
Case Number
HC-MD-CRI-APP-CAL 82 of 2020
Procedural Posture
Criminal Bail Appeal / Appeal Against Refusal of Bail
Outcome
Appeal dismissed
Legal Topics
Bail, Anti Corruption, Money Laundering, Fraud, Public Interest, Administration of Justice
Source Language
English
Criminal Law Criminal Procedure Bail Anti Corruption Money Laundering Fraud Public Interest Administration of Justice

Case Brief

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Parties

Bernard Martin Esau

1st Appellant/appellant

Tamson T Hatuikulipi

2nd Appellant/appellant

The State

Respondent

Procedural Posture

Criminal Bail Appeal / Appeal Against Refusal of Bail

Legal Issues

  1. 1 Whether the magistrate erred in refusing bail to the appellants
  2. 2 Whether the use of affidavits in bail applications was improperly disallowed or disadvantaged the appellants
  3. 3 Whether the magistrate made a finding of guilt instead of assessing bail

Ratio Decidendi

The magistrate did not misdirect himself in refusing bail. There was a strong prima facie case against the appellants, and the seriousness of the offences, public interest, and administration of justice justified refusal of bail. The use of affidavits was not disallowed, but the appellants' choice disadvantaged them compared to the State's viva voce evidence. The magistrate did not make a finding of guilt but properly assessed the strength of the State's case. The appellants failed to discharge the onus to show they are suitable candidates for bail.

Court Disposition

Appeal dismissed

Orders

  • Condonation for non-compliance with Rule 118(5) granted; appeal considered on merits.
  • Appeal against refusal of bail dismissed.