S v Namwandi and Another (CC 1/2022) [2025] NAHCMD 178 (17 April 2025)

THE STATE

and

SAKARIA MEGAMENO NAMWANDI ACCUSED 1

ASSET LEGACY INVESTMENT CC/2019/04807 ACCUSED 2

Neutral citation: S v Namwandi and Another (CC 1/2022) [2025] NAHCMD 178 (17 April 2025)

Coram: SHIVUTE J

Heard: 23 – 27 October 2023, 12-16 February 2024, 17-20 June 2024, 5 August 2024, 24 October 2024 and 9 December 2024.

Delivered: 17 April 2025

Flynote: Criminal Procedure – Trial – within – a – trial – State sought to introduce certain documents during trial – Defence objected to documents to be admitted in evidence – Basis for objection – All Bank statements were obtained in contravention of Article 13 of the Namibian Constitution – All documents were obtained without a search warrant – Requirements of section 22 CPA not met – All documents were obtained in contravention of section 6(2) of the Banking Institutions Act 2 of 1998 – Bank of Namibia did not authorize any person in writing to investigate or search any book for both accused persons during October 2019 – No authorization by the Governing Board prior to 7 November 2019 – Documents privileged under cover ‘without prejudice’ – All bank statements for accused 1 and 2 were obtained in violation of section s179(1)(b) of the CPA – State failing to disclose any notices in terms of section 179(1)(b) of the CPA.

Summary: The accused persons were charged with 123 counts of fraud with alternatives of 123 theft by false pretences, one count of Money Laundering contravening section 4(b)(i) and (ii) of the Prevention of Organised Crime Act 29 of 2004 (POCA) one count of racketeering contravening section 2(5) of the POCA and its alternative, conducting banking business while not authorized, contravening section 72(1)(a) of the Banking Institutions Act 2 of 1998, conducting a Ponzi Scheme contravening section 55 A (1) of Banking Institutions Act, one count of fraud (tax evasion) accused 1 only, one count of failure to pay tax contravening section 65(1)(a) of the Income Tax Act 34 of 1981 accused 1 only, another count of fraud(tax evasion) in respect of both accused persons and failure to pay tax contravening section 65(1)(a) of the Income Tax Act in respect of both accused persons. During the trial the State sought to introduce certain documents in evidence and they were objected on the grounds as stated above:

Held: Article 13(1) of the Constitution protects unwarranted interference with the right to privacy. However, the right to privacy is not absolute as there is a limitation to it, save it is done in accordance with the law and as necessary in a democratic society for the prevention of crimes and the protection of the rights and freedoms of others. Right to privacy not infringed as there are limitations to it. The documents are to be admitted in evidence.

Held: it is correct that a bank official may not rely on section 22 of the CPA, because he is not a police officer. However, the State led evidence in terms of section 236 of the CPA which deals with proof of entries in the bankers’ books. Evidence was led from bank officials who were in custody of the documents in issue and they authenticated the documents. Section 64(10) of the Banking Institutions Act provides for the disclosure of the bank records, books, registers and correspondence for the purpose of instituting or in the course of any criminal proceedings provided that such disclosure must be limited to the affairs or account of the customer suspected of such offence. Therefore, there is no reason why such documents should not be admitted in evidence.

Held: it was not necessary for the BoN to obtain search warrants for the purpose of examining the transactions reported to it by Bank Windhoek and FNB. The BoN had a statutory duty to analyse and assess whether the accused persons were violating any provisions of the Banking Institutions Act. Again, Financial Institutions have a duty to report all suspicious transactions in terms of sections 32,33 and 34 of the Financial Intelligence Act (the FIA).

Held: concerning the grounds dealing with the contravention of section 6(2) of the Banking Institutions Act that no authorization was obtained from BoN by the Supervisory Department, when the Supervisory Department of the BoN received reports of suspicious activities from Financial Institutions in respect of the accused persons’ accounts held at those institutions, the Supervisory Department needed to do a pre-investigation first to analyse the bank statements in question. At that stage it was not necessary for the Supervisory Department to require written authority before it analyses and establish whether there was a reasonable suspicion that unlawful activities were conducted in respect of the accounts. Otherwise, without establishing first a reasonable cause to believe that the accused persons were conducting business in contravention of section 5 of the Banking Institutions Act, I cannot conceive basis upon which the Board maybe approached with the request to grant the authorisation. After Mr Nel established the basis of the suspicion he proceeded to apply for the authorization. Therefore, there is no reason for the documents obtained through Mr Nel not to be admitted in evidence.

Held: with regard to documents under the cover ‘without prejudice’. This principle is applicable to civil cases where parties are normally engaged in negotiations for the purpose of settling civil disputes. The application of the principle ‘without prejudice’ to criminal matters would have the effect of violating public policy and will not be in the interest of justice as it would have the effect of enabling otherwise guilty persons to evade justice and prejudice the victims of their conduct. In the interest of public policy and interest of justice it is justifiable for the documents marked ‘without prejudice’ to be admitted in evidence as they are not protected by the principle ‘without prejudice’.

Held: the notices that were not disclosed timeously were notices issued to Bank Windhoek and FNB to freeze the accused persons’ accounts held at those Financial Institutions. Article 12(e) of the Namibian Constitution deals with fair trial. In terms of Article 12(e) although not specifically stated the accused is entitled to the information contained in the police docket including copies of witnesses’ statements. Such notices were disclosed to the accused persons albeit late. The defence had sufficient time to peruse the record. If they didn’t, they could have applied to the court to be granted more time. The documents obtained through such notices, were timeously disclosed to the accused persons. Therefore, Article 12(e) of the Constitution is not infringed. Documents effected with those notices are admissible in evidence.

Held: the police and the bank wrongly used section 179 (1)(b) of the CPA for search and seizure or to obtain documents from the Banking Institutions. However, the fact that a wrong section was used, this does not render the documents obtained through those notices to be inadmissible. At times fairness will require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence albeit obtained unconstitutional, nevertheless be admitted. The fact that the notices were defective does not apply automatically that they be excluded. Where real evidence was discovered consequent upon an irregular search, the court is still required to make a value judgment regarding the admissibility of such evidence, to determine whether it would be detrimental to the administration of justice. This court is of the view that as is necessary, in a democratic society in the interest of public policy, for the prevention of crime and for the protection of society, it would be justified for the notices to be admissible as well as the documents obtained through such notices. Therefore, Article 13 of the Constitution does not apply.

ORDER

All the documents objected to are admissible as evidence in the main trial.

SHIVUTE J:

[1] The accused persons Sakaria Megameno Namwandi herein referred to as accused 1 and Asset Legacy Investment CC 2019/04807, a Close Corporation duly constituted in terms of the Close Corporations Act 26 of 1988 as amended, under the sole management and control of accused 1 and hereinafter, referred to as accused 2 represented by accused 1, its sole member are charged with the following charges:

Counts 1 – 123 Fraud as read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

Alternative to Counts 1 – 123: Theft by false pretences as read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977(In respect of both Accused).

Count 124 – Money Laundering: Contravening section 4(b)(i) and (ii) as read with sections 1, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004 as amended; and further as read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused)

Alternative to Count 124 – Money Laundering: Contravening section 6(a)-(c) as read with sections 1, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004 as amended; and further as read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

Count 125 – Racketeering: Contravening section 2(1)(a)(b) and (c) as read with sections 1, 2(2)(a) and (b), 3, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004 as amended; and further as read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respects of both Accused).

Alternative to Count 125 – Racketeering: Contravening section 2(5) as read with sections 1, 2(2)(a) and (b), 3, 8 and 11 of the Prevention of Organised Crime Act 29 of 2004 as amended; and further read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

Count 126 – Conducting Banking Business while not authorised: Contravening section 72(1)(a) read with sections 1, 2, 5(1)(a) – (e), 6, 7 and 72(2)(a) of the Banking Institutions Act 2 of 1998 as amended; and further read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

Count 127 – Conducting a Ponzi Scheme: Contravening section 55A(1) read with sections 1, 2, 55(2) and 72(2)(a) of the Banking Institutions Act 2 of 1998 as amended; and further read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

Count 128 – Fraud (Tax Evasion) read with section 94 of the Criminal Procedure Act 51 of 1977 (in respect of Accused 1 only).

Count 129 – Failure to pay Tax – Contravening section 65(1)(a) read with sections 12(1), 15(1), 25(a), 55, 56, 59, 60, 65, 66, 83, 87 and 97 of the Income Tax Act 34 of 1981 as amended, and further read with section 94 of the Criminal Procedure Act 51 of 1977(in respect of Accused 1 only).

Count 130 – Fraud (Tax Evasion) read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

Count 131 – Failure to pay Tax – Contravening sections 65(1)(a) read with sections 12(1), 15(1), 25(a), 55, 56, 59, 60, 65, 66, 83, 87 and 97 of the Income Tax Act 24 of 1981 as amended, and further read with sections 94 and 332(5) of the Criminal Procedure Act 51 of 1977 (in respect of both Accused).

[2] The State during the trial sought to introduce bank statements or bank statement extracts as well as spreadsheets and other various bank related documents in respect of both accused persons’ accounts. The defence objected to the admission of all the bank statements received by Mr Nel on 18 October 2019 from First National Bank and bank statements received on 25 October 2019 in relation to the accused persons. The defence further challenged the admissibility of the bank account information relied upon by the Supervisory Department of the Bank of Namibia as well as bank statement extracts obtained by the police from the accused persons’ bank accounts held at various Banking Institutions.

[3] The objection is based on the following grounds:

1. That the Bank Statements for accused 1 and 2 were obtained in contravention of Article 13 of the Namibian Constitution – right to privacy.

2. That all the Bank Statements for accused 1 and 2 were obtained without a search warrant and that the requirements of section 22 of the Criminal Procedure Act 51 of 1977 had not been met.

3. That all the Bank Statements for accused 1 and 2 were obtained in contravention of section 6(2) of the Banking Institutions Act 2 of 1998 in that, the Bank of Namibia did not authorize any person in writing to investigate, search any book, records, including the Bank Statements of accused 1 and accused 2 during October 2019.

4. That Mr Romeo Nel was not duly authorized by the Governing Board of the Bank of Namibia to analyse or investigate, in particular, search for any book, record, or the Bank Statements of the accused persons.

Alternatively, Mr Romeo Nel was not authorized by the Board of the Bank of Namibia to analyse or investigate the accused persons and their Statements prior to 7 November 2019.

5. The authenticity of these Bank Statements are placed in dispute.

6. Further, the accused persons were not provided with disclosure of any notice in terms of section 50 of the Banking Institutions Act 2 of 1998 and as the evidence was obtained and procedures were not followed for that purpose which constitutes breach of Article 12 of the Constitution – the right to a fair trial.

7. All the Bank Statements for Accused 1 and 2 were obtained in violation of section 179(1)(b) of the Criminal Procedure Act 51 of 1977(the CPA) as amended. The State did not provide any disclosure of any notice in terms of section 179(1)(b) and or any summons in terms of the section.

Alternatively: The accused will object to the admissibility of any or all the statements obtained pursuant to section 179(1)(b) of the CPA as amended, on the basis that section 179(1)(b) is applicable to criminal proceedings in the lower courts and not to criminal proceedings in the High Court.

8. The accused persons will object to the production of resolution 07/2019 dated 6 November 2019 from the Bank of Namibia into evidence on the basis that it was not timeously disclosed to the accused persons for them to adequately prepare their defence as it was disclosed on 18 April 2023 in the late afternoon of the commencement of the trial and thus, in breach of Article 12 of the Namibian Constitution − right to a fair trial, including the right to full disclosure before the commencement of the trial.

The State’s Case

[4] As a result of the objections raised by counsel for the defence, the court held a trial-within- a-trial. The State called Mr Nel, who was the Director of the Bank of Namibia Supervisory Department. He was responsible for supervising and regulating commercial banks. He also receives statutory information from the Banking Institutions. He further testified that he investigated on behalf of the Bank of Namibia (BoN) the accused persons’ banking activities of taking deposits from members of the public, contravening section 5 of the Banking Institutions Act 2 of 1998, as the accused persons were not an authorised Banking Institution. Upon the Financial Intelligence Centre (FIC) receiving a report concerning suspicious transactions on the bank accounts of the two accused persons, FIC immediately effected interventions on the said bank accounts in order to avoid dissipation of the funds held in those accounts.

[5] After the expiration of the FIC interventions, his department took over from FIC. His department started with an assessment in October 2019, by accessing the business activities of accused 1 and a business entity Asset Legacy Investment Close Corporation, accused 2. On the basis of the report they received from the FIC and the information they have through accessing the business activities of both accused persons, they wrote to various commercial banks for further information in terms of section 50 of the Banking Institutions Act 2 of 1998, as amended. On the basis of the information they received from the commercial banks, they concluded that the accused persons were carrying out banking business while they were not authorised to do so.

[6] Based on the assessment, the witness made a recommendation to the Governor of the Bank of Namibia and the Governing Board to carry out the investigations and to freeze the accounts. He then, received the approval on 25 October 2019 from the Governor. After he received the approval the accounts of both accused persons were further frozen, a formal submission was made to the Board for the Board’s involvement and authorization for investigation and execution. The Board appointed the witness in terms of section 6(2) of the Banking Institutions Act on 6 November 2019. Various authorities were granted in that appointment, which include the asking for further documentation and related transactions over a period of 12 months from the Banking Institutions where such activities took place.

[7] The witness tendered the following documents in evidence during a trial-within-a-trial. Exhibit AA1 from First National Bank (FNB) dated 8 November 2019, exhibit AA2 dated 11 November 2019, from BoN and exhibit AA3 dated 24 October 2019 the letter from Acting Director Banking Supervision. The witness further produced spreadsheets captured from the documents they received from FNB namely; exhibit BB1, BB2, and BB3. He also received information that stretches 12 months from Bank Windhoek and tendered them in evidence as exhibits CC1, and CC2. The witness further produced his affidavit bearing a date stamp of 3 October 2023, exhibit EE 1 together with a search warrant, list of investors documents exhibit EE 2, a request from BoN to Bank Windhoek dated 16 October 2019, exhibit FF1, a response from Bank Windhoek to Bank of Namibia dated 10 October 2019 exhibit FF2, Notice to freeze an account dated 1 November 2019 exhibit FF3, Appointment letter of Romeo Nel in terms of section 6 of the Banking Institutions Act exhibit FF4.

[8] Further documents that were produced by Mr Nel were exhibit FF5 Notice to freeze bank accounts of the accused persons dated 8 November 2018 in terms of section 6(2) (f) of the Banking Institutions Act, exhibit FF6 a further request from BoN to Bank Windhoek for bank account statements in terms of section 50 of the Banking Institutions Act, requesting for the submission of 12 months bank account statements of various people who transacted with Accused 1 as well as Accused 2. Upon request, they received exhibit FF7 which is an e-mail extract from Bank Windhoek to BoN Banking Supervisory Department dated 11 November 2019 pertaining information regarding the accounts of both accused persons contained in the attached statements. The witness finally handed in exhibit FF8 which is a delegation authority to Banking Supervision Department Memo: Director Banking Supervision to the Governor where the Governor approved the delegation authority to Banking Supervision Authority on 3 February 2014.

[9] Mr Phillander who is a Deputy Director of Legal Services at BoN testified that he was responsible for secretarial services to the Board. He produced the minutes of the Board and the resolution dated 6 November 2019, authorising Mr Nel and other BoN officials to execute powers conferred on the BoN in terms of section 6(2) of the Banking Institutions Act. An affidavit of S. R. Philander, the minutes of the special Board Meeting and the resolution were marked exhibit GG 1.

[10] The State further called Mr Brink, who is a manager of Risk Management Department at FNB. He confirmed receipt of communication from both the FIC and the Supervisory Department of the BoN concerning the freezing of the bank accounts of both accused persons with FNB that were receiving deposits from various members of the public. He again confirmed sending bank statement extracts to Mr Nel in respect of the said accounts thereby confirming the authentication of the extract bank statements. One of his department’s duties is to investigate suspicious transactions. If they have reasons to believe that the transactions are indeed suspicious they compile a report to the FIC in terms of section 42 of the Financial Intelligence Act 13 of 2012 (the FIA) for further investigations. The documents are sent as secure documents to the bank to a system that has a message board.

[11] The witness produced the following documents: Exhibit GG2 a letter from FIC to FNB Ref. Case 1718/07/OCT-19 where Mr Brink was given direction not to proceed in carrying out transactions in terms of section 42 of the Financial Intelligence Act in respect of both accused persons’ accounts held at FNB. Exhibit GG3 Notice from BoN dated 16 October 2019, with reference number 14/3/4 written in terms of section 50 of the Banking Institutions giving directions to submit bank statements to BoN in respect of accounts among others for the two accused persons as well as a response from FNB. Exhibit GG4 Notice from BoN to FNB to freeze bank accounts and response with ref. no.: 14/3/6, exhibit GG5 Notice from BoN to FNB requesting extract statements of the accused persons’ bank accounts in terms of section 50 of the Banking Institutions Act with ref. no.: 14/5/1 and the response from FNB.

[12] The witness further produced exhibit HH1 which is excel electronic format for account number 62270361183 and exhibit HH2 excel statement in respect of account number 62270361050 both in the name of accused 1. He again produced exhibit HH3, excel statement in respect of account 62270261870 which is for accused 2 as well as exhibit HH4 which is a notice in terms of section 179 (1)(b) of the CPA.

[13] Ms Tsowases, a Compliance Manager at Bank Windhoek, testified that her department’s core obligation was to see to it that the bank complies with its regulatory duties in terms of the Banking Institutions Act as well as duties under the FIA, just to mention a few. The obligations are to monitor clients account for suspicious transactions and to report suspicious transactions and to effect any regulatory instruction that come from FIA. If a client transacts outside his profile such transaction is considered suspicious. The witness confirmed receiving exhibit FF1 from BoN to Bank Windhoek to which Bank Windhoek responded with exhibit FF2. She also confirmed seeing and handling exhibits FF3 and FF5 Notices to place restrictions on the accounts and exhibits FF6 the request of bank accounts statements and exhibit FF7 which are email bank statement extracts from Bank Windhoek to BoN Supervisory Department.

[14] According to the witness, both accused persons’ bank accounts at Bank Windhoek were receiving money from various depositors. The witness tendered exhibit JJ1, which is a bank statement in respect of account CHK-80007130552 dated 16 October 2019, in the name of Accused 1 and exhibit JJ2 the bank statement in respect of account CHK – 8014514236 dated 8 November 2019, in the name of Accused 2.

[15] Another witness called by the State was Mr Eiman who was an employee of the Financial Intelligence Centre as a Deputy Director of Financial Investigations and Analysis Division. The overall duties of the FIC is to combat money laundering, terrorist financing and to comply with section 8 of the FIA. He was deployed to receive suspicious transactions reports from accountable institutions including the banks and non-financial institutions and evaluate those reports. The FIC is also responsible for requesting information from law enforcement agencies and competent authorities. On 10 September 2019 and 10 October 2019, he received reports concerning the suspicious transactions on the accounts of the two accused persons. He confirmed that his division intervened in terms of section 42 of the FIA. The relevant accounts of the two accused persons at Bank Windhoek and FNB were frozen to avoid dissipation of the funds retained in those accounts. The FIC interventions at Bank Windhoek were from 10 - 28 October 2019. Whilst the FIC interventions at FNB were from 11 - 29 October 2019.

[16] The witness in these respects tendered exhibit KK1, an affidavit deposed to by him. Exhibit KK2 annexure A, which is a document addressed to Bank Windhoek dated 10 October 2019 from FIC. Exhibit KK3 annexure B which is a document from FIC addressed to FNB dated 11 October 2019 and exhibit KK4 which is annexure C, a document from FIC addressed to Bank Windhoek dated 11 November 2019.

[17] Mr Fillipus an investigator at Bank Windhoek Forensic Department testified that he was responsible for, among other things, to provide the police with the requested information during their investigations. He further confirmed and authenticated all the documents and information provided by him to the police during their investigations in this matter. The witness tendered into evidence exhibits LL1, LL2 with annexures PF01 and PF02 from Bank Windhoek, obtained by him. He also tendered exhibits LL3, the bank statement in respect of Accused 1 relating to account no.: 8007130552 and exhibit LL4, the bank statement in respect of Accused 2’s account no.: 8014514236.

[18] Apart from the above exhibits, he also tendered exhibits LL5 an affidavit which he deposed to, exhibits LL6 and LL7 which are opening records of Accused 1 relating to account no.:8007130552 and opening records of Accused 2 relating to account no.: 8014514236; exhibit LL8 which is a request by Warrant Officer Leo dated 5 October 2021 in respect of the accounts of accused 1 and accused 2. He again tendered exhibit LL9, which is an affidavit he deposed to on 5 November 2021.

[19] Mr Van Schoor testified that he is employed by FNB as a Forensic Investigator. One of his duties is to assist the Namibian Police with the extracts of bank statements or any other documents required from FNB. An affidavit is normally accompanying the documents to indicate that the documents or extract statements were obtained from the bank’s system. He was provided with the Notice in terms of section 179 of the CPA before he extracted the documents. The witness authenticated all the documents and information provided by him to the police during their investigation in relation to this matter.

[20] The witness tendered exhibit MM1, bank statements in respect of Accused 2’s account no.:6270261870; exhibit MM2 opening statement and bank statement in respect of one Hileni Ankome account no.:62251773034; exhibit MM3 a bank statement of Accused 1 in respect of account no.:62270361183; exhibit MM4 an opening record in respect of account no.:62253630399; exhibit MM5 the bank documents relating to Gold Lifestyle account no.:62270361050 of Accused 1 and account opening records and bank statements from 4 October 2019 to 5 January 2020. He also tendered exhibit MM6 which is opening records in respect of account no.:62248745343 for Accused 1; exhibit MM7 an affidavit by Mr Van Schoor in terms of section 212 of the CPA dated 12 February 2021; exhibit MM8 a Notice dated 4 February 2020; exhibit MM9 a Notice dated 3 June 2020 and exhibit MM10 which is an extract from the register.

[21] Ms Beukes who is also a Forensic Investigator at FNB confirmed and authenticated the documents and information provided by her to the police during the investigation on this matter. This witness tendered the following documents:

Exhibit NN1 consisting of a bundle of documents of Gold Lifestyle account no.: 62270361050; bank statement extracts and opening records. Exhibit NN2 bank statement extracts from the business account no.:62270261870 for Accused 2; exhibit NN3 which is bank statement in respect of the savings pocket account no.: 62270261888; exhibit NN4 the Gold business account and savings pocket account opening records; exhibits NN5 spreadsheet for transactions from Accused 2’s Gold business account no.:62270261870; 62270361183 Money Maximise account for Accused 1 and 62270361050 Gold Lifestyle account and the attached records. The witness further produced exhibit NN6, the source document dated 25 November 2021 from Accused 2’s Gold business account no.:62270261870 and exhibit NN7 which is a document linking the cell phone number +264812652986 to Accused 2.

[22] The State again called Mr Samunzala, a Principal Magistrate stationed in Windhoek, who issued a search warrant in this matter on 30 November 2021. The witness identified the search warrant that is part of exhibit EE1. The witness explained that although the search warrant bears the date stamp of 29 November 2021, the search warrant was issued on 30 November 2021. The anomaly came about because, he omitted to change the date stamp. It was put to the witness that at the time a search warrant was issued on the strength of police officer ya Kasita’s affidavit the documents subject to the search were already in possession of the BoN Supervision Department and they were given to them ‘without prejudice’. The witness responded that he was not aware if they were obtained under the principle of ‘without prejudice’.

[23] Mr Green a Senior Inspector in the Namibian Police attached to Asset Recovery Unit confirmed that he issued the Notice in terms of section 179 (1)(b) dated 7 July 2023 which is a subject of exhibit HH4. The Notice appeared to have been signed by a person who holds the rank of Detective Sergeant. However, he stated that at the time the Notice was brought to him he held the rank of an Inspector. He did not know who made the endorsement of Detective Sergeant on the Notice as the endorsement was not made by him and it is not his handwriting. He tendered an affidavit in that regard and it was marked as exhibit OO1.

[24] Henock Kasita Leo, a Warrant Officer, testified that he was assigned to the Criminal Investigation Directorate. He is the Investigating Officer in this matter and the matter required documentary evidence and obtaining statements from witnesses. He used a section 179(1)(b) of the CPA to collect the evidence. He applied for a search warrant and seizure in relation to the Investor Agreements obtained from the custody of the BoN. The witness identified the search warrant which is part of exhibit “EE1”. The witness further testified that before a search warrant was obtained he learned in the meeting that there were documents dropped at BoN by a lawyer which were Investor Contracts and proof of payment of Accused 2. That is why he used a Notice in terms of section 171 (1)(b) of the CPA to apply for a search warrant to be conducted at BoN. He further testified that further documents were also obtained from various Commercial Banks and that Notices in terms of section 179(1)(b) were used. The witness also identified exhibit HH4.

The Defence Case

[25] At the close of the State case in the trial-within-a-trial, the defence called the accused persons’ erstwhile legal practitioner, Mr Shimakeleni. He testified that the Investor Contracts that were submitted to the Bank of Namibia by the accused persons were under cover of ‘without prejudice’ principle. Mr Shimakeleni tendered a bundle of documents composing of correspondence addressed to the Director of Legal Services, BoN, marked by ‘Hand & Email’ were received and marked as exhibit PP1. The witness testified further that he engaged BoN on the instructions of his clients by then because they were of the opinion that the best approach to the matter was to try and solve the matter amicably without resorting to any legal proceedings. Mr Shimakeleni was not involved in preparing the Investor Agreements that were taken to the reception at BoN by a messenger from his law firm. Therefore, he was not in a position to clarify whether the agreement documents were original or not; whether they were given as complete agreements for each investor or not; and whether they were representatives of all the agreements that accused persons entered into with investors.

Submissions by counsel

[26] In respect of the first ground for objection regarding the accused persons’ right to privacy in terms of Article 13 of the Namibian Constitution, counsel for the State contended that Article 13 requires judicial authorization only in respect of searches of the persons and/or homes of individuals. In so far as the correspondence or communications of an accused persons are concerned, the limitation in section 179(1)(b) of the CPA is necessary in a democratic society for the prevention of crimes and the protection of rights or freedoms of others and is consistent with Article 13(1) of the Constitution.

[27] Whilst Article 13(2) of the Constitution pertains to searches of the persons and homes of individuals, the documents relating to the extracts from Bank statements of the two accused persons held at the various Banking Institutions were furnished following requests by either Supervision Department of the BoN or the police which were engaged in a legitimate investigation. No searches were conducted to obtain them and none of these documents was obtained from the homes of the accused persons. Therefore, Article 13 finds no application. Counsel argued that it was imperative that the State should have access to documents that tend to prove the guilt of an accused person otherwise it would be impossible to hold people accountable for their crimes. Bank statements and other documents are particularly important to the successful prosecution of Money Laundering Offences as such documents tend to show the movement of the illicit funds.

[28] Counsel for the State further argued that section 236 of the CPA does provide for unequivocal admission of entries as per the bankers’ books provided that certain requirements are met as set out in section 236(1)(a)-(d) 2(1)(a)-(c) and (3)-(4). There is no specific designation on how the bank records must be procured from Financial Institutions neither is the consent of the accused persons as account holders required. Such bank records or statement extracts could even be requested over the counter as long as the police officer would have been able to justify that the account holder is subject to a criminal investigation.

[29] Counsel for the State further argued that section 64 of the Banking Institutions Act under the subheading ‘Confidentiality and Secrecy’ provides for the disclosure of information relating to a Bank client’s transactional information under subsection 10 which provides that subsection (7) does not apply to the disclosure of any record, book register correspondence or other material referred to in that subsection under circumstances referred to in paragraphs (d), (g) and (h) in that section.

[30] Counsel for the State further argued that the disclosure made by the Financial Institutions to both BoN Supervisory Department and to the investigating officer, was duly authorised under the Banking Institutions Act as amended. The provisions relating to the Bank Records, both in the CPA and the Banking Institutions Act as amended are clear and unambiguous. Therefore, reliance cannot be placed directly on Article 13 of the Constitution to negate the unambiguous expression of the legislative will. In support of this proposition, counsel referred this court to the matter of De Klerk v The Prosecutor-General (HC-MD-CIV-MOT-POCA-2022/00487[2024] NAHCMD 247 (24 May 2024) at para 46.

[31] Counsel for the State again argued that assuming the Notices served by the police in terms of section 179(1)(b) of the CPA were obtained in violation of Article 13 of the Constitution, it is still the State’s argument that the court has a discretion to allow such evidence as there is no absolute exclusionary rule to evidence obtained in conflict to the constitutional principles. In this regard counsel referred this court to S v Shikunga & another 1997 NR 156(SC) 1997 (2) SACR 470 (Nms); S v Kandovazu 1998 NR 1 (SC) as well as Key v Attorney General Cape Provincial Division & another 1996 (4) SA 187 (CC) at 195 G – 196 D paras 13 and 14.

[32] Counsel continued to argue that assuming that the court finds that the section 179(1)(b) Notices served on the various Banking Institutions for purpose of obtaining the Bank Statement extracts were defective, this does not result in an automatic exclusion of the evidence that was obtained unlawfully in our law. The decision whether to exclude evidence that was obtained unlawfully and in violation of constitutional rights rests with the trial court. For this proposition counsel relied on Engelbrecht v S [2017] NASC 25(14 July 2017) and S v Townsend CC19/2013 [2021] NAHCMD 193 (14 April 2022) Counsel further argued that the police had the legal authority to investigate the alleged crimes in terms of section 13(6) of the Police Act 19 of 1990 as amended.

[33] Concerning the issue that all the Bank statements for the accused persons were obtained without a search warrant and that the requirements of section 22 of the CPA had not been met, counsel for the State contended that there was no need for the BoN to have obtained any search warrants for the purpose of examining the transactions as reported by the various Commercial Banks to determine if the accused persons were violating any provision of the Banking Institutions Act. This is so because the BoN is imbued with the authority to supervise and regulate all Financial Institutions falling under the Banking Institutions Act as amended. Furthermore, all Reporting and Accountable Institutions as defined under Schedule 1 of the FIA are required to report all suspicious transactions and activities in terms of sections 32, 33 and 34 to the FIC. Otherwise failure to do so might be met with administrative sanctions. The reporting duty placed on the Financial Institutions is not affected by the confidentiality rule save for client attorney privilege in circumstances as prescribed in section 44(2) of the FIA.

[34] Counsel for the State argued further that there was no need for the police to have obtained any search warrant in order to obtain Bank Statement Extracts and/or any transactional information from the Commercial Banks relating to the accused persons in the process of carrying out legitimate investigations into alleged offences committed by the accused persons when they accepted investor funds into their bank accounts. Section 13(c) of the Police Act empowers the police to investigate any offence or alleged offence. Furthermore, the protection of confidentiality and secrecy afforded by section 64 of the Banking Institutions Act as amended is circumscribed where the information is provided by a Financial Institution for the purpose of instituting, or in the course of any criminal proceedings or if the disclosure may, subject to subsection 10, in terms of any law be made to a police officer investigating an offence specified in such law. Again, subsection (10) limits the disclosure anticipated to the affairs or account of the customer suspected of such offence.

[35] Counsel for the State further argued that there was no need for a search warrant to be obtained for purposes of obtaining the relevant documents relating to the affairs or accounts of the accused persons. Neither BoN nor the police need the accused persons’ consent as suggested during cross-examination of the witnesses that testified in the trial-within-a-trial. Therefore, section 22 of the CPA does not find application in this matter. Moreover, section 26 of the CPA authorises a police officer to enter premises without a warrant for purposes of obtaining evidence, provided that such police official shall not enter any private dwelling without the consent of the occupier.

[36] With regard to exhibits EE1-EE2 which are an affidavit and search warrant as well as list of investor documents that were obtained from the BoN by the police, counsel for the State argued that the police became aware during their investigations that the accused persons had deposited some documents at the BoN in the hope of dissuading the Supervisory Department of the BoN from pressing criminal charges against the accused persons. Although accused 1 contended that such documents were provided on ‘without prejudice’ basis, counsel for the State argued that supposing the alleged documents were so provided, that would only have been applicable if BoN had agreed to the stipulation and later wanted to use the documents in a civil action against the accused. A ‘without prejudice’ stipulation is not applicable to criminal matters as such matters cannot be subject to any settlement. It is only civil disputes which are subject to negotiation in order to settle.

[37] Criminality may remove the protection of ‘without prejudice’ principle, especially if the term is used to cover up blackmail, fraud misrepresentation or undue influence or some other nefarious dealing, it may be admissible as evidence against the offending party. It was again counsel’s contention that exhibit EE1 were being submitted to the BoN ‘without prejudice’ for purposes of an attempted settlement facilitating repayment of the investor’s funds held in various bank accounts belonging to the accused persons. It has never been showed though that the BoN agreed to the stipulation. A negotiation between the accused persons and the bank is not binding on the police or the Prosecutor General who is the constitutionally appointed authority in regard to prosecutorial decisions. Since the matter has been reported to the police during December 2019, the BoN had no authority to negotiate a settlement with the accused persons.

[38] Neither did the BoN have the power to withhold evidence from the police otherwise it would be compounding the criminal offences committed by the accused persons and may themselves face charges of defeating the course of justice or an attempt thereof. The application of the principle ‘without prejudice’ to criminal matters would have the effect of violating public policy and will not be in the interest of justice as it would have the effect of enabling otherwise guilty persons to evade justice and prejudice the victims of their conduct. Counsel further argued that there are exceptions to the principle of’ ‘without prejudice’ where public policy dictates. Counsel referred this court to KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd [2016] 3 ALL SA 832 (WCC) or 2016 (5) SA 485 (WCC). Counsel argued further that the proposed settlement was an attempt to evade prosecution for the criminal conduct which the accused persons were being accused of.

[39] Section 6 of the Banking Institutions Act does not require the consent of the person to be investigated prior to the investigation and analysis of statements voluntarily provided by the Commercial Banks. The Supervisory Department of the BoN is vested with investigative powers and it needed to establish a reasonable cause or a reason to believe that the accused persons were conducting banking business in contravention of section 5 of the Banking Institutions Act before they could seek for a written authorization to investigate and to summarily freeze the bank accounts of the accused persons. The BoN requested the commercial banks, namely Bank Windhoek and FNB to provide bank statement extracts following a report of suspicious transactions. The two Banks provided the relevant documents through email. The BoN then analysed the Bank statement extracts to form an opinion whether there is a reason to believe that the accused persons were conducting business in contravention of section 5 of the Banking Institutions Act.

[40] The Board issued a resolution on 6 November 2019, as indicated in exhibits FF4 and appointment letter of Mr Nel and exhibit GG1 an Affidavit of Mr Philander to which the Board Minutes and Resolution authorised an investigation into the activities of the accused persons. Prior to 24 October 2019 an approval was sought from the Deputy Governor of the BoN for various courses of action listed in exhibit AA3 to be taken in anticipation of the interventions placed by FIC to avoid dissipation of the funds held in the identified bank accounts at the expiration of those interventions on 28 October 2019.

[41] In connection with ground 5 concerning authenticity of these Bank Statements, counsel for the State argued that all the documents electronically sent to Mr Nel by Bank Windhoek and FNB were authenticated by Ms Tsowases, a compliance Manager at Bank Windhoek, and Mr Brink a Manager at FNB-Risk Management Department respectively. Furthermore, the Bank Records provided to the police during their investigation by Mr Philip Fillipus a Forensic Investigator from Bank Windhoek were authenticated by him. Whilst Mr Van Schoor and Ms Benade Forensic Investigators from FNB’s Forensic Department authenticated the records from FNB.

[42] Concerning ground 6 of objection that the accused persons were not provided with the disclosure of any Notice in terms of section 50 of the Banking Institutions Act and that procedures were not allegedly followed and resulted in the infringement of Article 12 of the Constitution which deals with a fair trial, counsel for the State argued that when the accused persons were invited to indicate if they were going to challenge the production into evidence of the relevant Bank Statements and transactional information, they stated that the State was put to proof of each and every allegation against each accused person. Furthermore, both accused persons elected to exercise their constitutional rights to remain silent and not to incriminate themselves as enshrined in Article 12 of the Namibian Constitution. Whilst it is the accused persons’ prerogative to give a blanket denial when specific questions have been posed in a Pre-Trial Memorandum, they cannot be allowed to turn around and claim that they were not provided with disclosure of certain Notices assumed to have been served on the Banking Institutions by the BoN as such Notices are not primarily evidence on their own accord, which the State would have intended adducing during the trial of the accused persons. The reporting duties of a Banking Institution in terms of section 50 of the Banking Institutions Act as amended arise by virtue of law and do not necessarily require service of a Notice unless the alleged activities are first identified by the BoN.

[43] The law requires that all accountable institutions are to report to the BoN all suspicious transactions undertaken by a banking institution on behalf of their clients. Counsel again argued that the objection by the accused persons could have been avoided if the accused persons had responded to each paragraph of the State’s Pre-Trial Memorandum instead of giving a blanket response. Furthermore, the accused persons would have been well within their rights to have applied for time to scrutinize such documents as would not have been served on them before the commencement of the trial.

[44] Ground 7 deals with the bank statements for both accused persons that were allegedly obtained in violation of section 179(1)(b) the CPA. Counsel for the defence opposed the admissibility of those statements because, the State did not provide any disclosure of any Notice or summons in terms of the said section. Alternatively, section 179(1) (b) of the CPA is only applicable to criminal proceedings in the Lower Courts and not in the High Court. Counsel for the State conceded that the Notices referred to where not disclosed to the defence prior to their objection. The reason being that, such notices are part of the police investigative tools which on their own accord do not form part of the evidence, which the State would otherwise have sought to produce against the accused persons. The documents that were obtained as a result of such Notices are the Bank Statement extracts, Spreadsheet and other documents that were obtained from various commercial banks that form part of the evidence against the accused persons were duly disclosed to them. With regard to the alternative objection, the State argued that all criminal matters go to the Lower Court prior to their being transferred to a Superior Court. Therefore, throughout the investigation stage, the only court that a witness who is to give a statement or provide any evidence in their custody can be subpoenaed to appear in terms of section 205 of the CPA as amended.

[45] A matter only becomes eligible for transfers to a court of superior jurisdiction after all investigation are deemed to have been completed. Although Notices in terms of section 179(1)(b) of the CPA appear to be defective, the Notices do not render the trial against the accused persons to be unfair as section 236 of the CPA provided for proof of entries in bankers’ books and section 64(10) paragraphs (d), (g) and (h) of the Banking Institutions Act provides for the disclosure of a client’s information by a Banking Institution under those circumstances as an exception to secrecy. Counsel for the State argued further that this court must declare the documents obtained from the Commercial Banks through the Notices issued in terms of section 179(1)(b) as admissible against the accused persons. Counsel for the State referred this court to Mukena v Prosecutor-General of Namibia & others (HC-ME-CIV-MOT-GEN-2022/00214)[2014] NAHCMD 497 (30 August 2024) at paras 107 to 108, where it was decided among other things that: ‘None of the documents obtained by the police in terms of the impugned Notices are covered by the rights protected by Article 13. In so far as the correspondence or communications of an accused person are concerned, it is our view that the limitation in sections 179(1)(b) is necessary in a democratic society for the prevention of crime and the protection of the rights or freedoms of others and is consistent with Article 13(1) of the Constitution.’ The court further stated that in terms of section 13 of the Police Act, the Police are empowered to investigate crimes and garner evidence. Therefore, there is no basis why this court should set aside the documentation obtained in terms of the Notices.

[46] With regard to the Board resolution, counsel for the State argued that the resolution is not evidence of any wrong doing by the accused persons and as such had not been disclosed earlier as it was not envisaged that it would be required. Furthermore, it was also not, in the possession of the State. The Board Resolution was only requested from the BoN when it became apparent that the accused persons were raising objection as to the authority of Mr Nel to have obtained Bank Account transactional information of the accused persons from the Commercial Banks to enable them to decide whether the two accused persons were conducting illegal banking business. Again if the accused persons were not provided with disclosure timeously upon application the court is empowered to postpone the matter to enable the accused persons to have adequate time to prepare for their defence. The resolution was disclosed to the defence during April 2023, by now the accused persons have had ample and adequate time to prepare their defence. Counsel therefore, urged this court to allow all the documents tendered in the trial-within- a- trial to be admitted in evidence and become part of the evidence in the main trial.

[47] On the other hand, counsel for the defence in this regard argued that, it was clear from the evidence of Mr Nel that the bank statements of both accused persons were obtained in contravention of Article 13 of the Namibian Constitution, because he did not have a search warrant to search and seize the accused persons’ bank statements. Mr Nel also did not have permission from the accused persons to seize and search the accused persons’ bank statements. Counsel further argued that section 22 of the CPA which deals with circumstances in which articles may be seized without a search warrant only applies to police officials and not Bank officials. Therefore, the bank documents of the accused persons seized during October 2019, were unlawfully obtained. Counsel further referred this court to chapter 2 of the CPA, under which search warrants, seizure, forfeiture and disposal of property connected with offences should be dealt with.

[48] Counsel for the defence further argued that the bank statements received by Mr Nel on 18 October 2019 from FNB and documents received on 25 October 2019, infringed the accused’s constitutional rights in terms of Article 5 of the Constitution that deals with the protection of fundamental rights and freedoms. Since the Constitution is the supreme law of Namibia, such documents obtained in contravention of the fundamental rights should not be admitted into evidence. It was again counsel for the defence’s contention that section 50 of the Banking of Institutions Act , does not empower any Bank official to conduct any assessment or investigation on bank statements of individuals. Therefore, Mr Nel’s investigations into the accused persons’ bank accounts was unlawful.

[49] Counsel for the defence in respect of the third and fourth grounds of objection argued that, Mr Nel had no authorization from the Board of the BoN to conduct any investigation regarding the bank statements of the accused persons during October 2019. Counsel further argued that section 6(1) of the Banking Institutions Act is the only section that empowers a bank official from the BoN to conduct investigation. This section clearly provides for the limitation on the fundamental rights contemplated in sub-Article (1) of Article 13 of the Namibian Constitution by authorising interference with the privacy of any person’s home, correspondence or communication. However, for an official to conduct investigations, he/she must have a reason to believe that the person is conducting business in contravention of section 5 or section 55A of the Banking Institutions Act, but such authorization to the bank official has to be in writing.

[50] Since Mr Nel had no authorization to conduct investigations in respect of accused persons’ bank statements, such statements tendered into evidence by Mr Nel should be inadmissible. Although Mr Nel testified that when he obtained the bank statements from FNB and Bank Windhoek he was merely conducting an assessment, this assertion is contrary to his own affidavit he deposed to on 5 November 2021, when he said the bank conducted an analysis of such bank statements as part of the investigation in terms of section 6 of the Banking Institutions Act to determine whether the accused persons were conducting business in contravention of section 5 of the Banking Institutions Act. According to his own evidence, so counsel argued, he obtained the accused persons’ bank statements as part of the investigation in terms of section 6. Mr Nel should have observed the requirements of section 6 of the Act before carrying out any investigations. By conducting the investigation before obtaining a written authorization, the State failed to prove that the statements of the accused persons were obtained lawfully.

[51] The State tendered into evidence the letter of appointment of Mr Nel dated 7 November 2019. This letter was to appoint Mr Nel in terms of section 6(2) of the Banking Institutions Act but this letter did not authorise Mr Nel to conduct any investigations regarding the two accused persons. It merely authorized Mr Nel to direct FNB and Bank Windhoek to summarily freeze the bank accounts of the accused persons in terms of section 6(2) of the Act and to direct the two banks to retain all monies in the above mentioned accounts pending further instructions by the BoN. The letter directed Mr Nel to act in terms of section 6(2) (f) and not to act in terms of section 6(2)(a) which deals with search and seizure of books.

[52] Counsel for the defence did not argue grounds 5 and 8 of the objections as he decided to abandon them. Ground 5 deals with authenticity whilst ground 8 deals with the objection to minutes and resolution dated to 6 November 2019 from the BoN, on the basis that they were not timeously disclosed to the defence.

[53] Counsel for the defence in supporting his proposition to objections in respect of ground 7 and its alternative, argued that no Notice in terms of section 179(1)(b) of the CPA was disclosed to the accused persons before the commencement of the trial. The State has the duty to make disclosure before the accused pleads to the charge unless the prosecution apply for a deferment. The State had in its possession the Notices and they withheld such crucial information from the accused persons which amounts to a violation of accused persons’ right to a fair trial in terms of Article 12(e) of the Namibian Constitution. Counsel referred this court to S v Scholtz (2) (SA 6 of 1994) [1996] NASC (2) (6 February 1996).

[54] Counsel for the defence contended again that all the Notices tendered into evidence by the State are titled; Notice in terms of section 179(1)(B) of the Criminal Procedure Act 51 of 1977. Counsel argued that there is no such section in the Criminal Procedure Act. It is therefore, counsel’s argument that all bank statements of the accused persons obtained by the State in pursuant of these defective Notices were obtained unlawful. These were exhibits obtained through Ms Benade namely exhibits; MM4, MM6, MM3, MM1, NN1, NN2 and NN4. Again Mr Brink relied on those Notices for the confirmation of authenticity. Counsel argued that these Notices were issued in terms of the wrong section. The Prosecutor-General conceded that the notices are in substance not the notices contemplated by s 179(1)(b) of the CPA. Counsel referred this court to Mukena v Prosecutor-General of Namibia & others supra. He argued that section 179(1)(b) relates to the procurement of witnesses to attend to court and to produce documents at court and not to garner documentations of applicants from banks.

[55] With regard to contracts and list of investors dropped off at the BoN by Mr Shimakeleni, the erstwhile legal representative of the accused persons, that were under the hand ‘without prejudice’ counsel argued that as a matter of public policy the court always encourages parties to engage in settlement negotiations as a means of resolving their disputes amicably and avoiding litigation if possible. If the negotiations failed, any

admissions made by them during such discussions will not be used against them in their ensuing litigation. When the negotiations between the BoN and the accused persons were taking place, there was no criminal case opened against both accused persons. If the BoN intended to lay criminal charges against the accused persons at that stage, they would not have actively engaged the accused persons to provide contract and the list of depositors as per Mr Eiseb’s email dated 6 December 2019. Counsel submitted that contracts and the list of investors are privileged documents and they should be ruled inadmissible.

Determination

[56] Having heard the evidence adduced during the trial-within-a-trial and arguments from counsel, I will now deal with the objections relating to the admissibility of the documents. The first ground of objection is that the bank statements for accused 1 and 2 were obtained in contravention of Article 13 of the Namibian Constitution.

[57] Article 13 which deals with right to privacy provides as follows:

‘(1) No persons shall subject to interference with the privacy of their homes, correspondence or communications save as in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.

(2) Searches of the person or the homes of individuals shall only be justified:

(a) where these are authorised by a competent judicial officer.

(b) in cases where delay in obtaining such judicial authority carries with it the danger of prejudicing the objects of the search or the public interest, and such procedures as are prescribed by Act of Parliament to preclude abuse are properly satisfied.’

[58] Article 13 of the Constitution is of vital importance because it protects individuals from unwarranted interference of their privacy which is a fundamental human right as entrenched in Chapter 3 of our Constitution.

[59] It has been a point of criticism that when Mr Nel obtained the bank statements, he did not have a search warrant or permission from the accused persons to search and seize the bank statements or documents relating to the accused persons. It has further been argued that the State or Mr Nel may not rely on section 22 of the CPA for searching and seizing the bank statements as section 22 of the CPA only applies to police officials and Mr Nel is not a police officer. Therefore, the bank statements were obtained in contravention of Article 13 of the Constitution.

[60] Although Article 13(1) protects unwarranted interference with the right to privacy, the right to privacy is not absolute as there is a limitation to it provided that it is done in accordance with the law and as necessary in a democratic society among other things for the prevention of crime and the protection of the rights or freedoms of others. The limitation upon fundamental rights and freedoms may be done as provided for in Article 22 of the Constitution. Furthermore, concerning judicial authorization, the Constitution requires judicial authorization only in respect of searches of the person and or homes of individuals. As far as correspondence and communications of accused persons are concerned the, limitation may apply in respect of the prevention of alleged crimes.

[61] Article 13(2) of the Constitution concerns searches of the person and homes of individuals. The documents in connection with the bank statements extracts of the two accused persons held with various Banking Institutions were provided following requests for them by either the Supervision Department of BoN or the police which were conducting a lawful investigation. None of these, documents was obtained from the homes of the accused persons and there were no searches conducted to obtain them. It can be safely concluded that Article 13 of the Constitution has no application in this matter. Furthermore, I agree with counsel for the State’s argument that the State should have lawful access to documents that may prove the guilty of an accused person, otherwise it would be impossible to hold people accountable for their alleged crimes. Bank statements and other documents are particularly important to the successful prosecution of money laundering offences as such documents tend to show the movement of the illicit funds.

[62] Concerning the issue that Mr Nel, a bank official from BoN Supervisory Department, may not rely on section 22 of the CPA because he is not a police official, I find merit in this argument by counsel for the defence. However, section 236 of the CPA provides for proof of entries in bankers’ books as follows:

‘(1) The entries in the account books including any ledger, day book or cash book of any bank shall, upon the mere production at criminal proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges –

1. that he is in the service of the bank in question;

2. that such account has been the ordinary books of such bank;

3. that the said entries have been made in the usual and ordinarily course of the business of such bank; and

4. that such account books are in the custody or under the control of such bank,

be prima facie proof at such proceedings of the matters, transactions and accounts recorded in such account books.

(2) Any entry in any account book referred to in subsection (1) may be proved at criminal proceedings upon the mere production at such proceedings of a document purporting to be an affidavit made by any person who in that affidavit alleges –

(a) that he is in the service of the bank in question ;

(b) that he has examined the entry and the account book in question; and

(c) that a copy of such entry and set out in the affidavit or in an annexure thereto is a correct copy of such entry.’

[63] Mr Brink from FNB Risk Management Department testified about receipt of communication from both FIC and the Supervisory Department of BoN concerning the freezing of the two accused persons’ bank accounts held at FNB. He confirmed sending exhibits GG2 – GG5 and exhibits HH1 – HH4 to Mr Nel relating to the accused persons’ accounts. The testimony of Mr Brink authenticated the documents he sent to Mr Nel. Ms Tsowases a Compliance Manager at Bank Windhoek also testified and confirmed sending Bank statement extracts to Mr Nel regarding the accounts of the accused persons. Her testimony authenticated the documents she sent to Mr Nel, namely exhibits JJ1 – JJ2. Again Mr Fillipus from Bank Windhoek Forensic Department who is an investigator responsible for, inter alia, providing the police with the requested information during the investigations confirmed sending exhibits LL1 – LL9 to the police. The above exhibits were tendered into evidence during his testimony as well as his affidavit exhibit LL9. His testimony had also authenticated all documents he sent to the police.

[64] Again, the State tendered into evidence during the trial-within-a-trial through Mr Van Schoor and Ms Benade from FNB Forensic Department the documents they provided to the police. These witnesses authenticated the documents they sent to the police in respect of the accounts related to the accused persons. Documents tendered by Mr Van Schoor in evidence were exhibits MM1 – MM 10. Whilst exhibits tendered in evidence by Ms Benade were exhibits NN1 – NN7.

[65] This court, applying the provisions of subsections (1) and (2) of section 236 to the testimonies of the above witnesses, is of the view that the requirements of the section have been met and the court may be justified to admit them into evidence. Most of the documents produced were obtained via electronic mail. Section 25 of the Electronic Transactions Act 4 of 2019 allows the admissibility of business records obtained via electronic mail if requirements of section 25(9) of the said Act are met.

[66] Furthermore, although section 64(1) of the Banking Institution Act 2 of 1998 does prohibit the disclosure of any information acquired during the performance or exercise of such duties, subsection 2 of section 64 makes an exception to disclose such information under the heading ‘Confidentiality and Secrecy’. Section 64(10) of the Banking Institutions Act provides that subsection (7) (which deals with the prohibition against the disclosure of information relating the affairs or accounts of customers) shall not apply to the disclosure of any record, book register, correspondence or other material referred to in that subsection where the disclosure is required for –

‘(d) the purpose of instituting, or in the course of, any criminal proceedings;

(g) if the disclosure is required or authorised by any other provision of this Act or by any other law;

(h) if the disclosure may, subject to subsection (12), in terms of any law be made to a police officer investigating an offence specified in such law; or . . .’

Subsection (12) of section 64 provides that a disclosure contemplated in paragraph (h) of subsection (10) of that section ‘shall be limited to the affairs or account of the customer suspected of such offence.’

[67] Ueitele J in De Klerk v The Prosecutor–General (HC-MD-CIV-MOT-POCA-2022/00487) [2024] NAHCMD 247 (24 May 2024) stated as follows at para 46:

‘In Prosecutor-General and Others v Assegaai and Others 2020 (1) NR 25(HC), this court relying on the South-African Constitutional Court’s decision of Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 (CC), reasoned that the High Court cannot simply ignore an Act of Parliament and place reliance directly on a provision in the Constitution, nor is it permissible to side-step an Act of Parliament by resorting to common law. The court furthermore expressed its doubt whether the inherent jurisdiction of the court is such that it empowers a Judge of the High Court to make orders which negate the unambiguous expression of the legislative will.’

[68] The disclosure made by the Financial Institutions to both BoN Supervisory Department and to the police was duly authorised under section 64(10) of the Banking Institutions Act and section 236 of the CPA as alluded to earlier. The provisions of those Act are very clear and unambiguous. Therefore, reliance directly on Article 13 of the Constitution cannot be used to negate the intention of the legislature. This court is alive to the fact that the Banking Institutions Act 2 of 1998 has been repealed by Act 13 of 2023, but the offences under consideration are alleged to have been committed before the repeal of Act 2 of 1998, hence the application of the said Act to the facts of this case.

[69] Furthermore, it was not necessary for BoN to obtain search warrants for the purpose of examining the transactions reported to it by Bank Windhoek and FNB regarding the transactions of the accused persons’ bank accounts. BoN had a duty to determine whether the accused persons were violating any provisions of the Banking Institutions Act as it is empowered to supervise and regulate all Financial Institutions in terms of the Banking Institutions Act. Again all Financial Institutions have a duty to report all suspicious transactions or activities in terms of sections 32, 33 and 34 of the Financial Intelligence Act 13 of 2012 to the Financial Intelligence Centre. Failure to do so might be met with serious administrative sanctions. There was also no need to obtain consent from the accused persons as account holders before records were procured from the Financial Institutions. Section 64 (10) of the Banking Institutions Act does not require a consent from account holders. It would be suffice if the person requesting such information to give reasonable grounds to justify that the account holder is subject to a criminal investigation. It follows that the contention that the provisions of section 22 of the CPA had not been met is unmeritorious.

[70] I now move to deal with the third and fourth grounds. These two grounds are intertwined as they both deal with the contravention of section 6(2) of the Banking Institutions Act, in that all Bank statements of accused 1 and 2 were obtained without the authorisation of any person in writing including Mr Nel in order to investigate, search any book and records during October 2019. BoN received reports of suspicious transactional activities in relation with the accused persons’ bank accounts held at Bank Windhoek and FNB. For the BoN Supervisory Department to establish a reasonable cause whether the accused persons were conducting business in contravention of section 5 of the Banking Institutions Act, it requested via email statements from the above mentioned commercial banks and the banks provided statements to the BoN Supervisory Department to analyse the bank statements in question. It was not necessary at that stage for the BoN Supervisory Department to require written authority to analyse and establish whether there was reasonable cause to believe that the accused persons were involved in unlawful activities as the Department is invested with investigation powers to make such analysis and form a view if there was indeed a contravention of section 5.

[71] On 24 October 2019 the Acting Director of the BoN Supervisory Department sought approval from the Deputy-Governor of the BoN regarding various courses of action as evident in exhibit AA3, to be taken in anticipation of the interventions placed by FIC in order to avoid dissipation of the funds held in accounts of the accused persons suspected of illegal activities at the expiration of those interventions on 28 October 2019. Furthermore, the State during a trial-within-a–trial tendered exhibit GG1 through Mr Phillander regarding the Board Minutes and Resolution of 6 November 2019 authorising an investigation into the activities concerning the accounts of the accused persons as well as exhibit FF4, which is an appointment letter of Mr Nel authorising him to investigate in terms of section 6 of the Banking Institutions Act.

[72] It was a contention by counsel for the defence that Mr Nel by saying in his affidavit that the Bank then conducted an analysis of such bank statements as part of the investigation in terms of section 6 of the Banking Institutions Act, Mr Nel conceded that he conducted investigation and not analysis. This court is of the opinion that Mr Nel was required first to conduct preliminary investigation in order to establish that there is a reasonable cause to believe that accused persons were conducting business in contravention of section 5 of the Act before a decision is taken whether or not to seek authorisation in writing from the Board to conduct a full investigation. Otherwise without gathering, preliminarily, facts I cannot conceive basis upon which the Board may be approached with the request to grant the authorisation. After Mr Nel established the basis of the suspicion, he proceeded to apply for authorisation. Therefore, I am of the opinion that the provisions of section 6 of the Act were not contravened.

[73] With regard to alleged investor agreements or contracts which are marked as exhibit EE2 under the ‘without prejudice’ principle, this court is called upon to make a finding whether such documents are admissible. ‘Without prejudice’ principle is a phrase used to indicate that a written or oral communication, made ‘without prejudice’ to the rights or interest of the parties involved in a civil litigation and cannot be used as evidence against the party making it. If this phrase is made with a genuine intention to settle the dispute, the communication will generally not be admissible against the party making it. It is of vital importance that the party relying on the ‘without prejudice’ must show that the dispute existed at the time of the communication or that the communication was in contemplation of litigation or there is already legal proceedings that had started.

[74] In Van Tonder v Road Accident Fund (2023/013183) [2024] ZAGPJHC 1009

(7 October 2024) the following was stated:

‘The scope of the ‘without prejudice’ rule has been further clarified in subsequent cases, reinforcing its broad applicability in the context of settlement negotiations. However, it is essential to recognise that the protection afforded by the rule is not absolute. Various exceptions exist where public policy or other considerations dictate that communications marked as ‘without prejudice’ may be admissible in evidence. By way of example, ‘without prejudice’ correspondence may be used to prove an act of insolvency, to prove an acknowledgement of liability to interrupt prescription.’

[75] In the present matter, it is alleged that the two accused persons were conducting business while not authorised to do so contravening the Banking Institutions Act. The exhibits subject to ‘without prejudice’ phrase were allegedly submitted to BoN for purposes of an attempted settlement facilitating repayment of the investor’s funds held in various bank accounts belonging to the accused persons which are subject of the charges in this matter. According to my understanding, this phrase ‘without prejudice’ has broad applicability in the context of settlement negotiation in respect of civil cases. It has never been shown that BoN agreed to negotiate with the accused persons in order to settle. It has also never been established that there was a dispute between BoN and the accused persons.

[76] It is trite law that the party who is relying on the ‘without prejudice’ bears the burden on a balance of probability to satisfy the court that there was an existing dispute at the time of the communication or that communication was in contemplation of litigation or that there is already legal proceedings that had started.

[77] Applying the principle stated in the Van Tonder matter supra, there are various exceptions to the ‘without prejudice’ rule. One exception is where public policy dictates that communications marked such may be admissible. Criminality may remove the protection of ‘without prejudice’, especially if the principle is used to cover up fraud or the alleged commission of an offence. The application of the principle ‘without prejudice’ to criminal matters would have the effect of violating public policy and will not be in the interest of justice as it would have the effect of enabling otherwise guilty persons to evade justice and prejudice the alleged victims of their alleged unlawful conduct.

[78] BoN has no power to withhold evidence from the police. To hold otherwise would have the effect of enabling the Central Bank to compound the criminal offences allegedly committed by the accused persons, which in turn may result in the Bank facing charges of defeating the course of justice or an attempt thereof. In the interest of public policy and the interest of justice it is justifiable for exhibit EE2 to be admitted in evidence.

[79] As the fifth ground (together with the eighth ground) have been abandoned, I will proceed to deal with the sixth ground which is that accused persons were not provided with disclosure of any notice in terms of section 50 of the Banking Institution Act. In this connection, it was contended that the evidence was obtained and procedures were not followed for that purpose which constitute an unlawful breach of Article 12 of the Constitution (the right to a fair trial). The notices that were not disclosed were notices served on the banking institutions by the BoN. Section 50 of the Banking Institutions Act requires a banking institution to report to the BoN or to any other person or authority any transaction it becomes aware of and which indicates or raises suspicion that any person involved in the transaction may be engaged in an illegal activity. This is a duty placed on banking institutions by the Act.

[80] Article 12(1)(e) of the Namibia Constitution provides as follows:

‘All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and shall be entitled to be defended by a legal practitioner of their choice.’

The expression ‘facilities for preparation and presentation of their defence’ referred to in the Article above must go beyond the physical facilities in which to prepare the defence. It must include information to be presented as part of the defence. It would be difficult to hold that adequate facilities for preparation and presentation of the defence case within the meaning of Article 12(1)(e) were given when the facilities provided did not give the defence the opportunity to examine the State witness statements in appropriate case unless a case was made out by the party seeking to withhold the information. S v Kandovazu 1998 NR 1 (SC).

[81] This court respects the provisions of the Constitution concerning fair trial. The accused is entitled to the information contained in the police docket including copies of the statements of witnesses whether or not the police intend to call the witnesses. In the present matter, counsel for the defence argued that the defence was not provided with the disclosure of the notices that were sent by BoN to the commercial banks to freeze the funds in the accounts of the accused persons timeously, as they were only disclosed to them during April 2023. These notices were necessary to avoid dissipation of funds in the relevant accounts when accused persons became aware of the investigations against them. Counsel for the State correctly argued that such notices were used as an investigative tool and are not primarily evidence on their own accord which the State would have intended adducing during the trial of the accused persons. The notices have been disclosed to the defence albeit late, they had sufficient time to examine them and prepare their defence. If they needed more time they could have applied to the court to be given more time. In view of these considerations, I am of the opinion that the accused persons’ right to a fair trial has not been infringed and there is no basis why this court should not admit the documents obtained in terms of the notices. The documents obtained through the notices were duly furnished to the accused persons.

[82] The last ground of objection is that all bank statements for accused 1 and 2 were obtained in violation of section 179(1)(b) of the Criminal Procedure Act 51 of 1977 as amended. The State did not provide any disclosure of any notice in terms of section 179 (1)(b) or any summons. It was in the alternative that the defence would object to the admissibility of any or all the statements obtained pursuant to section 179(1)(b) of the CPA, on the basis that section 179 (1)(b) is applicable to criminal proceedings in the lower courts and not criminal proceedings in the High Court.

[83] Section 179(1) of the CPA reads as follows:

‘(b) If any police official has reasonable grounds for believing that the attendance of any person is or will be necessary to give evidence or to produce any book, paper or document in criminal proceedings in a lower court, and hands to such person a written notice calling upon him to attend such criminal proceedings on the date and at the time and place specified in the notice, to give or to produce any book, paper or document likewise specified such person shall for the purpose of this Act, be deemed to have been duly subpoenaed so to attend such criminal proceedings.’

[84] Counsel for the defence avers that section 179(1(b) is under chapter 23 of the CPA which provides for the purpose for securing attendance of witnesses. The notices contemplated in section 179(1)(b) of the CPA are merely subpoena and it cannot be argued that it empowers police officials to conduct search and seizure.

[85] The issues to be determined by this court regarding the notices issued in terms of section 179(1)(b) are whether the police could use the section for search and seizure of articles. Furthermore, whether the evidence obtained through the employment of such section are admissible in evidence.

[86] The notices issued in terms of section 179(1)(b) were part of the investigative tools and not to subpoena witnesses to attend court proceedings and bring along or produce any documentary evidence at their disposal. It is evident that the police by using section 179(1) (b) of the CPA to compel commercial banks to provide evidence at their disposal used a wrong section.

[87] Having stated that the police used a wrong provision of the law to obtain the bank statements extracts and investor contracts does it render the trial unfair and that the right to privacy as per Article 13 of the Constitution has been infringed?

[88] The fact that defective notices were used does not render the trial unfair because, in terms of section 13 of the Police Act 19 of 1990 the police are invested with the power to investigate crimes and garner evidence. Again, apart from the notices, this court received evidence in terms of section 236 of the CPA from witnesses employed by FNB and Bank Windhoek concerning proof of evidence in bankers’ books. This court earlier on had discussed the provisions of section 236 of the CPA and it is not necessary to recite what already discussed. Furthermore, in terms of section 64(10)(d); (g) and (h) of the Banking Institutions Act the disclosure of a client’s information by a Banking Institution under the circumstances stated in the paragraphs is an exception to confidentiality and secrecy requirement. Moreover, the documents obtained as a result of those notices were duly furnished to the defence.

[89] With regard to Article 13(1), which deals with the right to privacy, these notices were not directed to search the homes of the accused persons where judicial authorisation is necessary. Concerning communications or correspondence, the right to privacy is a fundamental right as enshrined in our Constitution, but subject to reasonable and justifiable limitation as discussed earlier in this judgement.

[90] The following were stated in Key v The Attorney General Cape of Good Hope Provincial Division Case No. CCT 21/94/ (23 May 1995):

‘In any democratic criminal justice system there is a tension between, on the one hand the public interest in bringing criminals to book and on the other, the equally great public interest in ensuring that justice is manifestly done to all even those suspected of conduct which would put them beyond the pale. To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international human rights bodies, enlightened legislatures and courts to prevent or curtail excessive zeal by State agencies in the prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin NO and Others 1996 (1) SA 984 (CC) fairness is an issue which has to be decided upon the facts of each case, and the trial judge is the person best placed to take that decision. At times fairness will require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence albeit obtained unconstitutional, nevertheless be admitted.’

[91] Where real evidence was discovered consequent upon an irregular search, the court is still required to make a value judgment regarding the admissibility of such evidence to determine whether it would be detrimental to the administration of justice.

[92] The fact that the notices were defective does not apply automatically that they should be excluded. In applying the above principles this court is of the view that as is necessary in a democratic society in the interest of public policy, for the prevention of crime and for the protection of society, it would be justified if the notices are admissible.

[93] In the result, the following order is made:

All the documents objected to are admissible as evidence in the main trial.

_________________

N N Shivute

Judge

APPEARANCES

THE STATE: E Ndlovu

Of Office of the Prosecutor-General.

ACCUSED: J Andreas

Instructed by the Directorate of Legal Aid.