Magistrate Bornface Konga has cautioned public prosecutors against relying on vague references for “public interest” and the “administration of justice” when opposing bail without providing evidence to substantiate such claims.
Konga made the remarks on Friday while delivering his ruling in the bail application of former Onandjokwe nurse Festus Amwaalwa, intern doctor Kelsey Kudumo, medical doctor Gomes Valera, nurse Michael Kaviyu and Sanlam financial adviser Getrude Iipinge.
The five accused persons face 13 charges relating to an alleged fraudulent claim of N$1.2 million involving Klaudia Martin and Sanlam.
Martin allegedly received the money in December 2024 after laboratory results belonging to Elizabeth Elifas were allegedly presented as those of Martin.
The money was allegedly distributed to several individuals, including some of the medical personnel who have since been arrested.
The accused persons are also facing fraud allegations involving N$125 000 allegedly paid to murder accused Abner Mateus, N$154 000 involving Mateus’ nephew, Petrus Shikwaya, N$47 000 involving Hendrina Shooya and N$62 000 involving Martha Kalunde.
During the bail proceedings, the prosecution argued that releasing the medical personnel would not be in the interest of justice and could cause the public to lose confidence in public institutions.
Konga, however, cautioned against using the applicants’ professions or their positions in society as a basis for denying them bail.
“This court must caution against such an approach in that regardless of a person’s position in society, he or she still deserves the constitutional rights enshrined in the Constitution,” Konga said.
He said the applicants should not be “sacrificed” simply because they are medical professionals.
“The applicants, therefore, cannot be used as a sacrifice to the altar by not admitting them to bail on the basis of them being medical professionals,” he said.
Konga said where the interests of justice dictate that an accused person should be released on bail, the court should grant bail, and where the interests of justice require detention, bail should be refused.
The magistrate also questioned the state’s argument that releasing the accused could interfere with ongoing investigations.
The investigating officer had testified that investigations were still incomplete and could take about six months or longer as investigators continued uncovering new evidence.
However, Konga found that the investigating officer had not sufficiently explained how the release of the accused would compromise the investigation.
“He seems to suggest that he can investigate properly when the accused persons are in custody and when released, investigation can be compromised. The investigating officer did not elaborate how this will be or how the keeping in custody of the applicant will enhance his investigations,” Konga said.
The magistrate noted that some electronic devices and documentary evidence had already been sent for analysis, while other evidence was in the possession of the state and Sanlam.
“I don’t see how the applicants will interfere with such,” he said.
Konga further noted that other accused persons facing similar charges had already been released and found no rational basis for denying the five applicants bail.
He said concerns about the accused persons absconding or interfering with witnesses and investigations could be addressed through appropriate bail conditions.
“The court is strongly convinced that the fear of absconding or interference with witnesses or public investigations can be curtailed by appropriate bail conditions,” Konga said.
The court subsequently granted each of the five accused bail of N$25 000.