Setback On Organised Crime Act Procedure

THE prosecutor general will have another hurdle to get over in future cases in which the High Court is asked to freeze ill-gotten property under Namibia’s law against organised crime.

This is as a result of the latest judgment on the interpretation of the Prevention of Organised Crime Act (Poca), which Judge Harald Geier handed down in the Windhoek High Court on Friday last week.

The judgment was delivered in a case in which prosecutor general Martha Imalwa applied for and was granted an interim property preservation order in respect of a bank account into which N$800 000 that originated from the Ministry of Defence had been transferred in September last year.

When she asked for the property preservation order in October last year, Imalwa alleged that the money in the bank account, which is held in the name of a child, was the proceeds of unlawful activities in the form of fraud, theft, and money laundering offences.

The effect of the property preservation order was that no one was allowed to deal in any way with that money as long as the interim court order remained in place. The preservation order was lifted on Friday, though, after Judge Geier ruled that when the PG applied for the order she failed to ask the court to excuse her non-compliance with one of the regulations under Poca.

The PG yesterday gave notice that she would take an appeal against Friday’s judgment to the Supreme Court.

In respect of property preservation orders, Poca says the High Court must grant such an order without requiring that notice of the PG’s application should be given to anyone. That is as long as the court is satisfied that the property involved is the proceeds of unlawful activities or has been used to commit crime.

However, one of the regulations made under Poca says that when the PG applies for property restraint, preservation, or forfeiture orders, it should be done in writing and parties affected by such an application should be given seven days’ notice of the matter – unless the High Court permits the giving of shorter notice.

When she applied for the property preservation order in respect of the bank account in October last year, the PG did not ask the court to allow her to be freed from the requirements of the regulation, Judge Geier noted in his judgment on Friday.

In that respect, the order that the PG asked for was irregular and should not have been granted, he ruled.

He also stated, though, that his judgment was in essence refining and clarifying the prescribed procedures to be followed in accordance with Poca when the court was to be asked to make an order in terms of the act.

He said his judgment did not preclude the PG from approaching the court on an urgent basis and without giving notice to an affected party, as long as the procedures prescribed in the law and its regulations were followed.

The money in the bank account in question was transferred from the account of a close corporation, Sydney Hassen and Sons Trading CC, which in September last year received a payment of N$1,06 million from the Ministry of Defence for the provision of accommodation for NDF members.

Imalwa alleged in an affidavit when she applied for the preservation order that the payment to the close corporation was fraudulently obtained from the ministry after the CC’s member, Onesmus Nghitumu Taapopi, wrongly brought the ministry under the impression that he was the owner of a guest house in which Namibian Air Force members undergoing training in Windhoek were to be accommodated from July last year to July this year.

The guest house in Windhoek where the NDF members were to be accommodated in fact belonged to someone else and Taapopi did not conclude an agreement with the owner of the guest house to have NDF members staying there for a year, Imalwa claimed.

Although Taapopi won a round against the PG in court on Friday, that is not the end of his legal troubles. He has also been charged criminally and has appeared in court on a count of fraud in connection with his close corporation’s accommodation deal with the Ministry of Defence.

Taapopi was represented by Sisa Namandje and Mbushandje Ntinda in the case before Judge Geier. State aocate Kavejamua Kazondunge, assisted by Mariette Boonzaier, argued the PG’s side of the case.

Source : The Namibian