LAWYERS representing the men implicated in the FishRot scandal, Advocate Vas Soni and Thabang Phatela have this morning argued before a full bench in the supreme court that the High court had misdirected itself by denying the accused men bail.
The lawyers, who made an appeal against the refusal of bail of the accused men by the High Court last year in April, said that there were sections that were added on the paragraphs of the judgement that was published a few days later which were not part of paragraphs of the judgment that was delivered and read into the court record.
Vas Soni pointed out that the alteration of the judgment could not only be interpreted as a mere technical error or grammar issue but that of a serious concern with regards to the principles of legality and fairness.
“The question of concern is, if your lordships were to dismiss the appeal we are bringing before you, which Judgement stands? Since there were two different judgments delivered on the same and if not, which judgment is to be set aside?” Said Vas Soni.
In response, the court asked whether or not technical errors on the judgment would have made any change to the materiality of the case, given that it was just a mere change in the section but not the entire decision.
To this, the lawyers argued that although it is technical errors, the question remains on the supremacy of the constitution and the doctrine of legality.
“My lord, the problem the court faces are; where is the redline that separates what is permissible from what is not? If the constitution does not allow it, then why must it be done” Vas Soni argued.
He further argued that the first judgment was not given immediately after the arguments but was prepared well with time and delivered 10 days later, and that the Judge had prepared a written judgment which he read into the court record.
“The basis on which the bail was opposed, the role that the high court judge attributed in this particular case, the approach adopted by the judge in the entire bail application, and the misdirection of legal principles are some of the facts to be considered in this appeal” said Van Soni.
The lawyers said that there is no proper basis on which their clients were denied bail, adding that their clients demonstrated that they are indeed best candidates for bail and to keep them in detention will render their trail unjust.
In closing, the defense lawyers argued that for as much as the state alleges that it has a strong case against the accused men, the reliance on its main witnesses and whistle blower Johannes Stephenson, who is also an accomplice that could not even come to Namibia to testify, is worrisome.
They submitted that the decision of the High court be found wrong, and that with a consideration of all factors including the legal issues brought forth, that the accused be release on bail with any appropriate bail conditions.
The men implicated in the Fishrot saga have been behind bars since their arrest in 2019, and were denied bail in April last year by Judge Shafimana Uetele of the High Court.