Namibia - Shilengudwa v the Prosecutor General, Namibia
Namibia -
The Prosecutor – General (PG) obtained a
preservation order under the Prevention of Organised Crime Act (POCA) in
respect of certain properties of the applicants. The properties relate to an
impugned property transaction wherein the second respondent (BIPA) seeks to
obtain certain relief. The PG proceeded in terms of s 59(1) of POCA to apply
for a forfeiture order and, by way of notice of motion supported by founding
and confirmatory affidavits, called upon the applicants to indicate their
intention to oppose and to then file answering papers in accordance with the rules
of this court. The applicants declined the invitation and filed a rule 61
application, contending that the aforesaid steps taken by the PG are irregular
and stand to be set aside. BIPA, in filing its s 52(5) POCA affidavit out of
time, sought condonation for leave to file its s 52(3) notice. BIPA contends
that such application was filed and incorporated on 12 June 2018 in its s 52(5)
affidavit and as such it substantially complied with s 60(1). It further filed
a notice of motion on 3 October 2018, seeking to incorporate certain paragraphs
of its s 52(5) affidavit, wherein it sought leave to file the statutory notice.
Held: what
rule 61 contemplates is a step or proceeding not authorized in terms of the
rules of court.
Held that: rule 65(1) is applicable to proceedings
instituted under POCA.
Held further that:
an application for forfeiture is an application in terms of section 59(1) of
POCA which must comply with regulation 7, read with rule 65(1) of the rules of
this court.
Held that: a
section 52 POCA notice does not serve to oppose a forfeiture application which,
at that stage, has not even been issued.
Held further
that: a section 52 POCA notice serves, amongst others, to permit a respondent
to receive notice of a subsequent forfeiture application in terms of 59(2)
POCA.
Held that: it
is only a person who served a section 52 notice who may oppose a section 59(1)
application in the manner provided for in section 59(4). and then may elect to
oppose such application in terms of section 59(4) POCA.
Held further that:
a section 59(1) POCA application must comply with regulation 7 and rule 65(1)
of the rules of this court. In these circumstances it can hardly be contended
that the applicant’s application is one which is irregular within the meaning
of rule 61.
Court accordingly
dismissing the rule 61 and condonation application with costs.
