ARINSA CaseBook 2020

Namibia

Applications and motions- Urgent application- sections 51, 52 and 58 of the Prevention of organised Crime Act 29 of 2004-variation of preservation of property order in terms of section 103 of the Rules of Court-

Namibia -

In the court a quo, applicant applied for and obtained a preservation order in respect of a Polo motor vehicle pursuant to s 51 of the Prevention of Organised Crime Act (POCA). As is the process, the preservation order was followed up by an application to have the property declared forfeited to the State pursuant to s 59 of POCA. The basis for the forfeiture order sought was that the Polo was an ‘instrumentality’ of the offences of kidnaping and rape. The court a quo found that the applicant failed to establish the offence of kidnapping and insofar as the rape was concerned, that the applicant failed to establish that the Polo was an instrumentality of the offence, and that it was merely incidental to the offence.

It is held that, this is not a case where the Polo was used merely to facilitate or make the offence possible. The vehicle was functional to the commission of the crime. The Polo was reasonably directly connected to the crime and that it was the method by which respondent transported the complainant to the spot where he intended to rape her and he did rape her.

It if further held that, the court a quo erred in finding that the use of the Polo in the present matter was merely incidental to the commission of the offence.

It is thus held that, the applicant does not only have prospects of success in the appeal, but that the appeal should be allowed in respect of the offence of rape.

Another issue this court dealt with is whether the court should allow in new evidence, an ‘affidavit’ of the complainant in the rape case?

To allow further evidence on appeal is only done in exceptional circumstances. It must be explained, based on evidence which may be true, why this evidence was not presented to the court a quo. Secondly, there must be a prima facie likelihood of the truth of the evidence. Thirdly, the evidence should be materially relevant to the outcome of the initial proceedings. The evidence sought to be introduced need not be incontrovertible but it must be apparently credible. Whereas the new evidence clearly raises questions as to the reliability of the complainant in respect of the details of the assault on her, it does not in any manner impugn the credibility of the persons who arrived on the scene and who basically caught the respondent red handed busy having sexual intercourse with the complainant.

It is thus held that, the application to present further evidence is declined.

Namibia -

Rule 61, irregular step proceedings.

Held: section 52 of POCA serves, inter alia, to permit a respondent to receive notice of the forfeiture proceedings envisaged under section 59 of POCA. Only a person who delivers notice in terms of section 52 may oppose the forfeiture proceedings.

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.

Namibia -

The Prosecutor-General has appealed against the decision of the High Court declining to make a forfeiture order in respect of certain assets that the Prosecutor-General (the PG) contends were proceeds of unlawful activities. The PG had earlier successfully applied for a preservation of property order in respect of the property that she sought to be forfeited. In the application for a forfeiture order, the PG did not attach the affidavits filed in support of the preservation application to her forfeiture application affidavit. Instead, she incorporated those affidavits and annexures by reference.

The High Court held that it was not permissible for the PG to rely on affidavits deposed to in the preservation application without annexing those affidavits to her affidavit in support of the forfeiture application. The court concluded that as the evidence of the PG was based on hearsay, there was no admissible evidence establishing that the preserved assets were proceeds of unlawful activities.

In the Supreme Court, the PG argued that the High Court erred in failing to appreciate that the preservation application and the forfeiture application are two sides of the same coin. As the evidence required in each application is essentially the same, it was not necessary to attach documents filed in respect of the preservation application to the affidavit supporting the forfeiture application.

The Supreme Court held that the important matter to consider is the question whether a person with an interest in the preserved property would suffer prejudice if the documents that were filed in the preservation of property application are not attached to the PG’s affidavit in the forfeiture application. The court reasoned that such person is unlikely to suffer prejudice as he or she would have been served with the documents filed at the preservation of property stage. As the evidence in the two phases is essentially the same, it was not necessary to burden the court with repetitive material that may also serve to increase the costs of litigation.

The court held further that the evidence tendered established fraud and money laundering and that the High Court should have ordered the forfeiture of the property on the basis that it represented proceeds of unlawful activities. The Supreme Court accordingly made a forfeiture of property order and also directed the respondents to pay the PG’s costs both in the High Court and in the Supreme Court.

Namibia

Preservation order- forfeiture applications- whether preservation application and forfeiture applications are two separate and distinct applications- rule 65 of the Rules of the High Court