REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
REASONS
Case no: HC-MD-CIV-MOT-EXP-2025/00024
In the ex parte application of:
THE PROSECUTOR-GENERAL
Neutral Citation: Ex parte The Prosecutor General (HC-MD-CIV-MOT-EXP-2025/00024) [2025] NAHCMD 32 (07 February 2025)
CORAM: MASUKU J
Heard: 29 January 2025
Order issued: 29 January 2025
Delivered: 07 February 2025
Flynote: Urgent application in terms of s 50A of the Prevention of Organized Crimes Act, (‘the Act’) – Unexplained wealth − The Prosecutor-General (‘PG’) sought an urgent ex parte relief to preserve the assets pending further investigation, as the assets were at risk of being dissipated – The observance of the right to be heard of the person in possession of the property sought to be declared unexplained wealth.
Summary: The court heard an ex parte urgent application by the PG to declare certain property, including bank balances in the First National Bank accounts of Likuwa Transport (Pty) Ltd and Kanyinga (Pty) Ltd, respectively, and cash in the amount of N$37 179 found in the possession of Mr and Mrs Likuwa, as unexplained wealth under s 50A of the Act. The PG sought this declarator due to suspected links of the property to illegal activity, and the court found the application to be urgent, noting that the assets could be dissipated before a formal hearing.
The court expressed concerns over the apparent finality of declaring the property as unexplained wealth.
Held: That the matter is urgent as required by rule 73 of the High Court Rules and that the applicant made the necessary allegations required.
Held that: If the Likuwas were to be afforded notice of the application, there is a possibility that they could dissipate the property to the detriment of the interests of justice.
Held further that: The Act, in s 50A(3), allows a party in possession or control of property reasonably suspected to be unexplained wealth, an opportunity to explain the source of the assets through an affidavit.
Held: That there is need for procedural fairness, thus ensuring that the rights of the person in possession of the property in question to explain the source of the assets or the wealth in question, are protected while still allowing the PG, in appropriate cases, the right to prevent the dissipation of assets.
Held that: Declaring the assets as unexplained wealth permanently would bypass the respondents' right to explain the source of the wealth, which would violate procedural fairness under s 50A (3) of the Act.
Revised order, making an interim declarator of the property unexplained assets granted.
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REASONS FOR RULING
MASUKU, J:
This is an ex parte application brought by the Prosecutor-General, (PG), in terms of the provisions of s 50A of the Prevention of Organised Crime Act 29 of 2004, as amended (‘the Act’). Stripped to the bare bones, the PG seeks an order declaring certain property seized by the police ‘unexplained wealth’ in terms of s 50A aforesaid.
On 28 January 2025, after reading the papers and listening to the argument presented by Ms Hamunyela, representing the PG, I granted an order, in essence making an interim declaration that the property in question constitutes unexplained wealth. Because I take the view that there is an issue that needs clarity in that regard, I deemed it necessary to briefly set out the reasons for the order eventually issued. I do so below.
It appears from the founding affidavit of the PG, filed in terms of the said provision, that the police, acting on a tip-off, visited the home of a couple, Mr Shikupuro Likuwa and Mrs Bernadine Likuwa, to whom I will, for ease of reference call ‘the respondents’, in this ruling. On arrival there, the police seized property, including money in cash and some prohibited drugs. It is deposed by the PG that the respondents are linked to two entities, namely Likuwa Transport (Pty) Ltd and Kanyinga (Pty) Ltd, which hold two accounts with First National Bank of Namibia, (‘FNB’).
The main relief sought by the applicant in this matter, is an order declaring the positive balances in the FNB accounts of the entities mentioned immediately above, together with a sum of N$37 179 found at the respondents’ home, unexplained wealth in term of s 50A of the Act. It is important to mention that this matter was brought ex parte and on an urgent basis.
I am, on reading the papers, satisfied that the application is indeed urgent, as deposed to by the PG. In this regard, it is deposed on oath that the funds held in the FNB accounts were the subject of a statutory intervention effected by the Financial Intelligence Centre (‘FIC’) and which expires at midnight on 29 January 2025. The PG alleges that if an order is not issued preventing access to and usage of the money held in the accounts in the interim, the amounts in the said accounts may be dissipated at the click of a button, to the prejudice of the interests of justice and further processes in relation to the matters still under investigation. Furthermore, the PG deposes, if the matter were to be dealt with in the ordinary course, the earliest date available to deal with the matter, having regard to the practice directions, would be 7 February 2025, which would be tantamount to locking the stables after the horses have already bolted.
I am accordingly satisfied that the PG has fully met the provisions of rule 73 of this court’s rules and that the matter deserves to be dealt with on an urgent basis. I am also satisfied that there is need in this case, for the PG to approach the court on an ex parte basis, considering the provisions of s 50A(3) and the harm deposed to in the founding affidavit, that may have eventuated in the event the respondents were given prior notice of this application.
Having said this, it must be mentioned that the relief related to urgency will not be granted to the PG merely for the asking. In this regard, even where it is alleged that the FIC’s statutory intervention is about to lapse, the PG must make a full disclosure to the court as to when she became aware of the said intervention and its date of lapsing. If that disclosure is not required, then the PG can in some cases be properly accused of having created or allowed the urgency to fester to her office’s benefit. This should not be countenanced.
Furthermore, I should necessarily point out that not every application in terms of the s 50A, must be brought on an ex parte basis. The circumstances of each case should individually dictate whether ex parte proceedings are justified. For instance, if the property suspected to be unexplained wealth is a building, there is very little that the owner can do to dissipate it, so as to require an ex parte application. Each case must thus be dealt with in the light of its own peculiar facts. No one-size-fits-all approach should thus be adopted.
The main issue that has motivated the writing of this ruling relates to the relief sought by the PG. The draft order issued by the PG, reads as follows:
‘1. The applicant’s non-compliance with the forms, manner and service with the time limits prescribed by the Rules of this Court and the failure to comply therewith is condoned, and that this matter be heard as one of urgency as envisaged in Rule 73 of the Rules of court.
As contemplated in section 50A of the Prevention of Organised Crime Act 29 of 2004 (‘the Act’), the following properties listed below, herein referred to as the ‘unexplained assets’, are declared unexplained assets, subject to the conditions and provision as provided for in this order: The positive balance held in the First National Bank gold-business account number 62272285448 held in the name of Likuwa Transport (Pty) Ltd;
The positive balance held in the First National bank gold business account number 62272284375 held in the name of Kanyinga Trading (Pty) Ltd;
The sum of N$37 170-00 in cash, booked in Pol 7/210/2024 under CR 43/12/2024 at the Omulunga Police Station.
3. The applicant must effect service of this order, the unexplained wealth order application, and the notice in the form as set out in Annexure A hereto as soon as practicable after this order on Shipuko Likuwa (“Mr Likuwa”) and Mrs Bernadice Likuwa (Mrs Likuwa).
4. Mr Likuwa and Mrs Likuwa must, within 21 calendar days after service of this order on them, deliver an affidavit in terms of section 50A (2) of the Act to the applicant at her office situated at Corporate House Building, JP Karuaihe Street, Windhoek, setting out:
4.1 The nature and extent of his or her interest in the unexplained assets per paragraph 2.1 to 2, 3 above;
4.2 An explanation on how he or she obtained the unexplained assets referred to in paragraphs 2.1 to 2.3 above; and if the unexplained assets are held on behalf of a third party, any such information pertaining to such third party in respect of such unexplained assets; and
4.3 Provide with the affidavit all supporting documents in relation to the explanation of the source of the unexplained assets.
3. (sic) If Mr Likuwa and or Mrs Likuwa delivers (sic) an affidavit to the applicant within 21 days of being served with the aforesaid notice, in the form as set out in Annexure A, the applicant may if she is –
3.1 Satisfied with the explanation set out in the affidavit, let the unexplained wealth order expire; or
3.2 Not satisfied with the explanation set out in the affidavit, within 30 days of the delivery of such affidavit, bring an application in terms of section 51 of the Act for a preservation of property order.
4. (sic) If Mr and/or Mrs Likuwa fails to deliver an affidavit within 21 days of such service of the notice provided for in section 50A and (5) of the Act, the applicant may, within 30 days of the 21-day period, bring an application in terms of section 51 of the Act for a preservation of property order.
5. (sic) In terms of section 50(4) of the Act all persons with knowledge of this order, other than as required and permitted by this order, are prohibited from removing, and/or taking possession of and control over, and/or dissipating and/encumbering and/or interfering with, and/or diminishing the value of, and/or attaching or selling in execution, and/or dealing in any other manner with the unexplained assets to which this order relates.
6. (sic) Mr Likuwa and or Mrs Likuwa, and or any other person who holds an interest in the unexplained assets, may, on good cause shown, and on two days’ notice, apply for the reconsideration of this order.’ (underlining added).
I have purposely underlined the word ‘declared’, occurring in para 2 of the draft order above. The use of the word, in the unqualified manner it has been employed, raised spasms of disquiet within me. This is so because when read in the context of the order sought, the court is moved by the PG to make a declaration that the property in question constitutes unexplained wealth or assets. The declaration sought is not in any manner, shape or form, qualified.
Section 50A(1) of the Act does, indeed entitle this court, in appropriate circumstances, to issue a declarator that the property in question, constitutes unexplained wealth or assets. To deal with the matter more comprehensively, it is necessary that I quote liberally from the relevant provisions of the Act. Section 50A reads as follows:
‘50A. (1) The Prosecutor-General may apply to the High Court for an unexplained order declaring the property concerned to be an unexplained asset and the court may, subject to such conditions as it considers necessary, issue an unexplained wealth order in respect of the property.
(2) For purposes of subsection (1), the unexplained wealth order must require the person who is the owner, holder, custodian or bona fide possessor of the unexplained asset to provide an affidavit on oath that sets out –
(a) the nature and extent of his or her interest in the property in respect of which the order is made;
(b) an explanation on how he or she obtained the property, including how any costs incurred in obtaining the property were met, and if the property is held on behalf of a third party, any such information pertaining to such third party in respect of such property; and
(c) any such other information in connection with the property as may be so specified in the order or information that the person against whom the order is made considers necessary.
(3) The High Court may make an order referred to in subsection (1) without requiring that notice of the application be given to the person against whom the order is sought or the adduction of any further evidence from any person if the application is supported by an affidavit indicating that the deponent has sufficient information that –
(a) the property is an unexplained asset;
(b) the owner, possessor or custodian of such property was afforded a reasonable opportunity to explain the disproportion between the asset concerned and his or her known legitimate sources of income to a member of the police or an authorised officer of the Anti-Corruption Commission; and
(c) satisfies the court that the information shows on the face of it that there are reasonable grounds for believing that the property concerned is an unexplained asset.
4. The High Court may make an order prohibiting any person from dealing in any manner with an unexplained asset subject to the provisions of subsection (1) and to any conditions and exceptions that the court may specify in the order.
5. A person against whom the unexplained wealth order is made must, within 21 days after the service of unexplained wealth order, deliver the affidavit under subsection (2) to the Prosecutor-General.
6. An unexplained wealth order expires 30 days after the date on which the affidavit referred to in subsection (5) has been delivered to the Prosecutor-General, except if there is an application in terms of section 51 for a preservation of property order pending before the High Court in respect of the unexplained wealth order.’
As I understand the above provisions, they allow this court to issue an order declaring certain property or assets as unexplained wealth. This order may be issued following an ex parte application filed by the PG. The reason for the ex parte procedure, may be dictated by circumstances where if the respondent were to know of the application in advance, he or she may be tempted to dispose of the asset, spirit it away, destroy it or, if the property is money, spend it, if possible, with both hands as it were. In this regard, the court is granted a wide amplitude to issue an order that fully addresses any dangers that may eventuate, leading to the unexplained asset being dissipated or vanishing into thin air before a declarator as to the property is made.
The application may also be moved ex parte if there is evidence before court placed on affidavit, to the effect that the property in question is unexplained wealth or asset and that the person in question was afforded an opportunity to explain the disparity between his or her legitimate means or sources of income. The court needs to be satisfied on the evidence placed before it on affidavit that the property is an unexplained asset. If so satisfied, it may then issue the order ex parte.
It is important to underscore that the declaration of the property as unexplained wealth, is not made in final fashion without the person affected or with an interest in the said property being afforded an opportunity to explain how the asset was obtained. In terms of ss (2) of s 50A of the Act, the possessor or the person in whose custody the property was found, must be afforded an opportunity to explain how the said property was obtained. This requirement answers to the process of a fair hearing and is to some extent, a recognition of the right to property and not to be despoiled thereof in a willy-nilly manner, without due process.
In terms of ss (3) of s 50A, this court may make an unexplained wealth order devoid of notice to the person affected. This is when there is placed before court an affidavit deposed to and placing information before the court to the effect that the property concerned, is an unexplained asset and the owner, possessor or custodian thereof was afforded sufficient opportunity by the police or the Anti-Corruption Commission to explain the disproportionality between the ownership or possession of the asset and his or her known legitimate means of income. Lastly, the court must further be satisfied that the information placed before it mentioned immediately above, shows or suggests on the face of it that there are reasonable grounds for believing that the property in question qualifies to be regarded as an unexplained asset.
I interpose to mention that in the instant case, the PG states and this is confirmed by police officers involved in the investigations, that after the discovery of the drugs and money both in the bank accounts of the companies linked to the respondents and that in cash, seized at the respondents’ place of abode, the police officers sought to engage the respondents with a view to affording them an opportunity, in the presence of a legal practitioner of their choice, to explain their possession of the assets and they refused to co-operate. The legal practitioner was contacted but he did not pick the calls from the police. This, according to the affidavits filed, left the PG with no other option than to approach the court on an ex parte basis in the circumstances.
I now revert to the provision under consideration. Once this court has issued an unexplained wealth order, that order must be served on the person affected. That person has 21 days from the service of the order to file an affidavit to be delivered to the PG. That affidavit must explain the wealth or assets in his or her possession, forming the subject matter of the application. In this regard, the affidavit must set out the nature and extent of the interest of the said person has in the said asset or property; how the said person acquired or obtained the property, including how costs incurred in obtaining the property, were met. If the property is held on behalf of a third party, information relating to that third party must be furnished. Lastly, the affidavit must provide any other information in connection with the property as may be specified in the order or such information as the deponent to the affidavit may consider necessary.
Two scenarios arise once the affidavit explaining the wealth or asset, has been filed by the possessor of the property. Firstly, the person in whose possession or control the property was found, may explain the assets or wealth concerned to the satisfaction of the court and by extension, the PG. In that event, the PG may not pursue the matter, resulting in the order issued expiring or lapsing after the expiry of 30 days after the filing of the explanatory affidavit.1 If the affidavit is not satisfactory, the PG may then move the court, after considering the explanation filed, to issue an order, which is final in nature, declaring the property as unexplained wealth or asset.
I now revert to the issue of the declaratory order sought that the property in question be declared unexplained wealth. It appears to me that there are two scenarios that arise. In the first instance, the police should, before an application is made by the PG for the issuance of an unexplained wealth order, ensure that the person in possession of the property or who has an interest therein, is afforded an opportunity to explain the property in question. If the person does not explain the property properly or the explanation is not satisfactory, then the PG is entitled to proceed to court to make an application, setting out in particular, the requirements of s 50A(3) of the Act, quoted above.
As indicated above, in this case, the respondents were, according to the affidavits filed by the PG, afforded an opportunity to explain the assets to the police. They however did not seize the opportunity to give any explanation regarding the property in question. That being the case, the PG was then entitled, perhaps compelled to approach the court for an appropriate order for a declarator. What concerns me is that in the draft order, the PG applies for an out and out declaration that the property is unexplained wealth. This is done in full appreciation that in terms of s 50A(3) of the Act, the respondents are entitled to give an explanatory affidavit once an order to that effect is issued.
If the court proceeds to grant the relief sought as couched in the draft order, some grave injustice may have been perpetrated. This is so because the order declaring the property unexplained wealth sought by the PG, is on all accounts final in nature and possibly in effect. This is because a declaration of property as unexplained wealth is final. Once issued, there is no room for the affected person to file an explanation or to seek to make representations explaining the nature and source of the property. To have granted the order sought as prayed for, would have rendered the provisions of s 50A(3) nugatory in that the declaration would have been final in nature and effect. Once it is final, then it is no longer open to the respondent to explore or exercise the rights imbued by ss (3) of the Act, to explain the wealth or the asset in question.
I am acutely aware that the last paragraph in the draft order, is in the form of an anticipation of a return date by the respondents on two days’ notice. This is fair and commendable. The problem though is that if the court were to issue the declaration of unexplained wealth, in the form sought, it would be final and not amenable to being anticipated even before the expiry of the period of 30 days after service of the order on the respondents.
I therefore asked Ms Hamunyela whether it was proper to issue the order, especially in paragraph 2 of the draft order in the terms suggested. As I conveyed my difficulties to her, as explained above, she readily agreed that the appropriate order to issue in relation to the declarator, is an interim one, which is subject to alteration by the court or to abandonment by the PG once an affidavit filed makes a plausible case and explanation of the wealth or assets in question.
The rationale for making the order interim rather than a final one, is to strike the necessary balance between the PG’s need to prevent asset dissipation and Mr and Mrs Likuwa’s right to a fair trial. This procedure provided in the Act ensures that Mr and Mrs Likuwa understand that the order is provisional and that they have a right to give an explanation on affidavit, of the unexplained wealth or asset on affidavit as required by s 50A(3) of the Act. This is essential to prevent potential abuse of power in asset forfeiture proceedings
It is for the above reasons that I issued prayer 2 as an interim order, as it were, making it subject to the provisions of s50A(3). In this way, should the respondents be minded to file explanatory affidavits that satisfactorily explain the assets, the court could discharge the order, or the PG could abandon the said order by allowing it to lapse as it does, after 30 days of the lodging of the explanatory affidavit.2 I thought it was appropriate to give some guidance on this aspect to ensure that whilst the court gives effect to the legislative solicitudes and enforces the provisions of the Act and its militant approach to organised crime, the rights of persons who may be able to explain the wealth in their hands, are not sacrificed on the altar of expediency, to their detriment and without recourse.
It was for the reasons recorded above that I issued an order in the following terms, thus aligning prayer 2 with the rights protected under s 50A(3):
The applicant's non – compliance with the forms, manner and service with the time limits prescribed by the Rules of this court and the failure to comply therewith is condoned, and that this matter is heard as one of urgency as envisaged in Rule 73 of the Rules of court.
As contemplated in section 50A of the Prevention of Organised Crime Act 29 of 2004 ("the Act"), the following properties listed below, herein referred to as the 'unexplained assets', are in the interim, declared unexplained assets, subject to the conditions and provision as provided for in this order:
2.1 The positive balance held in the First National Bank gold-business account number 62272285448 held in the name of Likuwa Transport (Pty) Ltd;
2.2 The positive balance held in the First National Bank gold-business account number 62272284375 held in the name of Kanyinga Trading (Pty) Ltd;
2.3 The sum of N$ 37,170-00 in cash, booked in Pol 7/210/2024 under CR 43/12/2024 at the Omulunga Police Station.
The applicant must effect the service of this order, the unexplained wealth order application, and the notice in the form as set out in Annexure A hereto as soon as practicable after this order on Shikupuro Likuwa ("Mr. Likuwa") and Mrs. Bernadine Likuwa (Mrs. Likuwa).
Mr. Likuwa and Mrs. Likuwa must, within 21 calendar days after service of this order on them, deliver an affidavit in terms of section 50A (2) of the Act to the applicant at her office situated at Corporate House Building, JP Karuaihe Street, Windhoek, setting out:
4.1 The nature and extent of his or her interest in the unexplained assets per paragraph 2.1 to 2.3 above;
4.2 An explanation on how he or she obtained the unexplained assets referred to in paragraphs 2.1 to 2.3 above; and if the unexplained assets are held on behalf of a third party, any such information pertaining to such third party in respect of such unexplained assets; and
4.3 Provide with the affidavit all supporting documents in relation to the explanation of the source of the unexplained assets.
If Mr Likuwa and or Mrs Likuwa delivers an affidavit to the applicant within 21 days of being served with the aforesaid notice, in the form as set out in Annexure A, the applicant may if she is –
5.1 Satisfied with the explanation set out in that affidavit, let the unexplained wealth order expire; or
5.2 Not satisfied with the explanation set out in that affidavit, within 30 days of delivery of such affidavit, bring an application in terms of section 51 of the Act for a preservation of property order.
If Mr and/ or Mrs Likuwa fails to deliver an affidavit within 21 days of such service of the notice as provided for in section 50A (2) and (5) of the Act, the applicant may, within 30 days after the expiry of the 21-day period, bring an application in terms of section 51 of the Act for a preservation of property order.
In terms of section 50A(4) of the Act all persons with knowledge of this order, other than as required and permitted by this order, are prohibited from removing, and or taking possession of and / or control over, and / or dissipating, and / or encumbering and / or interfering with, and / or diminishing the value of, and / or attaching or selling in execution, and / or dealing in any other manner with the unexplained assets to which this order relates.
Mr Likuwa and/or Mrs Likuwa, and or any other person who holds an interest in the unexplained assets, may, on good cause show and on two (2) days' notice apply for the reconsideration of this order.
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T S MASUKU
Judge
APPEARANCES
APPLICANT: J Hamunyela
Of Office of the Prosecutor-General, Windhoek
1 Section 50A (6) of the Act.
2 Section 50A(6).