Court name
High Court Main Division
Case number
POCA 3 of 2012
Title

Prosecutor-General v Kanime (POCA 3 of 2012) [2013] NAHCMD 317 (24 September 2013);

Media neutral citation
[2013] NAHCMD 317
Coram
Geier J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



EX TEMPORE
JUDGMENT



Case
no: POCA 3/2012








In the matter between:













THE PROSECUTOR-GENERAL
..................................................................APPLICANT








and








NATANGWE KONDJENI
KANIME
..........................................................RESPONDENT













Neutral citation: The
Prosecutor-General v Kanime
(POCA 3/2012) [2013] NAHCMD 317 (24
September 2013)








Coram: GEIER J








Heard: 24
September 2013



Delivered: 24
September 2013








Flynote: Sanctions
hearing – failure by respondent to show ‘lawful excuse’
for the non-compliance with the court’s case management order
as required by rule 37 (16) – imposition of previous costs
orders not showing desired effect – court deeming it fit to
impose sanctions in terms of Rule 37(16)(i) and bar respondent to
bring an application in terms of Section 60(1) of POCA in opposition
to a forfeiture of property order which had been brought by applicant
-













Summary: The facts
appear from the judgment.















ORDER
















  1. The respondent is barred
    from bringing an application in terms of Section 60 (1) of POCA.










  1. The
    respondent is to bear the costs of the hearings of the 16
    th
    and 23rd
    of July as well as of 24 September 2013.
















RULING















GEIER J:








[1] This
matter is the sequel to the confirmation of a Provisional
Preservation of Property Order which was granted against the
respondent on 20 December 2012.













[2] The Prevention of
Organised Crime Act No 29 of 2004 (herein after referred to POCA)
provides in Section 52 (3) that:








Any
person who has an interest in the property which is subject to the
preservation of property order may give written notice of his or her
intention to oppose the making of a forfeiture order or apply, in
writing, for an order excluding his or her interest in the property
concerned from the operation of the preservation of property order.’








[3]
Section 52(5) then prescribes the content and the form of the notice
that such an interested person has to give.
1













[4] It is common cause
that the respondent is such a person, with an interest in the
property, which was preserved, as a result of the confirmed order of
20 December 2012 and also that he has failed to give the requisite
notice in terms of Section 52 (3).













[5]
If I understand counsel’s argument correctly, a person who has
failed to give such a notice within the time specified by Section
52(4)
2,
may, in terms of Section 60(1) of POCA
3
apply
to the High Court for condonation of that failure and leave to give a
notice accompanied by the required information.













[6] It is also common
cause that the applicant, the Prosecutor General of Namibia in this
matter, has indeed brought an application for the forfeiture of the
property that was so preserved, and that the respondent has, to date,
failed to apply in terms of Section 60(1), for leave to give the
required notice accompanied by the required information.













[7] The forfeiture of
property application was in this instance served on the correspondent
legal practitioners of Inonge Mainga Attorneys, in Windhoek, on the
23rd of May 2013.













[8] The matter was
initially set down for hearing on the 25th of June 2013.













[9]
At such hearing Mr Boesak, who appeared on behalf of the respondent,
applied for a further opportunity to file the requisite application.
4













[10]
In such circumstances the matter was postponed to the 2
nd
of
July 2013 on which occasion Mr Boesak again, on behalf of the
respondent, indicated that his client was still of the intention to
file the appropriate application.













[11]
In such circumstances the matter was again postponed, this time to 16
July 2013, and the respondent was now directed, by case management
order, ‘to file such papers as he deems fit by that date’.
5













[12] On the 16th
of July 2013 it appeared that the respondent had not complied with
paragraphs 3 and 5 of the case management order of 2 July 2013 and in
such circumstances the court ordered the respondent’s legal
practitioners to file an affidavit, on or before the close of
business of 19 July 2013, explaining the non-compliances with the
case management order of 2 July 2013, and to show cause, why any of
the sanctions, as contemplated by Rule 37(16)(i)–(iv) should
not be applied.













[13] The matter was then
postponed to 23 July 2013.













[14] The aforesaid
affidavit was not delivered within the time stipulated, in that it
was served on the 19th of July, but only filed at court on
the 22nd of July 2013.













[15] On the 23 of July
2013, Mr Boonzaaier, on behalf of applicant indicated that his client
wished to oppose the respondent’s application and file an
answering affidavit thereto.













[16] In the circumstances
the court put the parties to terms in regard to the further exchange
of papers and the matter was postponed to the 24th of
September 2013 for the determination of sanctions, if any.













[17] The applicant
thereafter filed an answering affidavit to respondent’s
sanctions affidavit to which the respondent has since replied.













THE EXPLANATION
OFFERED













[18]
Ms Mainga, the legal practitioner for the respondent, in her
explanatory affidavit sketched the background and the circumstances
which gave rise to a situation in which the intended application in
terms of Section 60(1) of POCA was not brought timeously, and also
not in accordance with the case management order given by this court.
She states further that she was not originally involved and thus she
did not immediately become aware of the fact that a forfeiture
application had been served on her correspondents on the 23
rd
of May 2013 and that she only became aware thereof,
through an email received from Ms Shipopyeni, on 31 May 2013, who
would send the papers with a candidate legal practitioner, who
returned to her offices on the 3
rd
of June 2013. Ms Mainga then received the papers in the
forfeiture application on that date and immediately perused the
application and noted that a Notice in terms of Section 53 (3) had
not yet been filed.













[19] She contacted the
respondent and requested him to come in for consultations and bring a
deposit. The consultation materialised on 11 June 2013 at which she
advised the respondent that a Notice of Oppose had not been filed by
his previous legal practitioners of record.













[20] An affidavit was
sought from Mr Kaumbi, the previous legal practitioner of record, who
was not immediately available. Telephonic contact was made with him
on the 18th of June 2013 and oral confirmation was given
that no such notice had been filed.













[21] On the 18th
of June 2013 respondent was advised that the remedy available to him
was to bring an application in terms of Section 60 (1) of POCA. Ms
Mainga apparently tried to finalise this application, but was unable
to do so in time.













[22] She does not say
precisely in her affidavit what this is supposed to mean - I presume
however that this was intended to be a reference to the 14day
period, which is set, for the bringing of such applications by
Section 60 (1).























[23] I pause to point out
that also the respondent was thus pertinently made aware of the
requirements set by Section 60(1) as far back as the 18th
of June 2013.













[24] Ms Mainga then went
on to explain that the respondent intended to utilise senior counsel
to assist him in the defence of the forfeiture application and that
the intention was to obtain the assistance of Advocate Hinda SC, in
addition to the instruction of junior counsel. It was in such
circumstances that Mr Boesak found himself at the forefront of the
respondent’s quests to seek extensions for the filing of the
intended Rule 60 (1) Application.













[25] Ms Mainga confirmed
further that the postponements of the 2nd and the 16th
of July were requested and that the reason therefore was to be
attributed ‘to a confusion in the documents that were forwarded
to junior counsel who was unable to finalise a draft dealing
particularly with the prospects of success’ of the respondent’.













[26] It also emerged that
the services of senior counsel, due to the inability to secure the
necessary funds, were ultimately not secured.













[27] Ms Mainga’s
affidavit however fails to explain why the necessary application
still had not been brought by the 19th of July, the date
on which the respondent’s sanctions affidavit was attested to.













[28]
I pause to state that even to this day
6
no
application in terms of Section 60 (1) has been filed or tendered.













[29] It also appears from
Ms Mainga’s explanation that no specific detail was provided as
to what was really done and when - since the realisation that an
application in terms of Rule 60 (1) of POCA was required and to have
same finalised.













[30] Mr Boesak, who also
appeared on behalf of the respondent, at the sanctions hearing,
implored the court to afford the respondent yet a further
opportunity. He submitted that the respondent was in essence
prevented and thus excused from filing or at least tendering to file
the intended Rule 60 (1) application even at this late stage, because
of the sanctions hearing, which had intervened in the meantime. Mr
Boesak also requested the court to take into account the nature of
the application with its far reaching consequences for the
respondent.













[31] Ms Boonzaaier, on
behalf of the applicant in the main proceedings, submitted that no
good cause had been shown for the respondent’s conduct
to be condoned and that the court should thus utilise its powers to
prevent the respondent from further opposing the applicant’s
forfeiture of property application.













[32] It also did not
escape her attention that the threatened Rule 60 (1) application had
to date not yet been brought and that no real reason or explanation
was offered, why that application had not been filed within the
initial 44 day period afforded, which had elapsed, nor that there was
any explanation why, for some 100 days later, there was still no such
application.













[33] She submitted that
the applicant was prejudiced by the conduct of the respondent. In
this regard she asked the court to take into account that the
mechanisms of the notice, as required by Section 52 (3), were there
to assist the applicant in deciding whether or not to persist with a
forfeiture of property application. As a result - and if I understand
Ms Boonzaaier’s argument correctly - the respondent’s
failure to give such notice, as well as the respondent’s
failure to have launched any application in terms of Section 60 (1)
by September 2013, prejudiced the applicant particularly as she was
constrained to launch its preservation of property application within
the period of 120 days as prescribed by Section 53(1).








[34] She also pointed out
that the prescribed 14 days for the bringing of a Rule 60 (1)
application had long expired. The said section requires a respondent,
who has become aware of the existence of a Preservation of Property
Order, to make such application within 14 days and that it was clear
from the papers that the respondent has been aware of such an order
for a much longer period, as indicated in Ms Mainga’s affidavit
and - according to which – she also advised the respondent of
his rights in this regard.













SANCTIONS













[35] A sanctions hearing
such as the present one is governed by the provisions of Rule 37 (16)
and the question, in terms of that Rule is, whether the respondent
has shown any ‘lawful excuse’ for not complying with the
court’s case management order of 2 July 2013.













[36] In that context I
suppose it would also be relevant to consider whether good cause for
any condonation or extension or excuse for the non-compliance with
the court’s order and the forms and procedures required in this
case by POCA has been shown.













[37] I have already
indicated that the respondent’s explanation is lacking. What is
further of relevance is that no application in terms of Section 60 is
at least tendered or is available for scrutiny with reference to
which the court would be able to ascertain the veracity of any
defence the respondent may wish to raise in the forfeiture
application.













[38] It is clear that the
merits or demerits of any such a defence would heavily weigh with a
court when a court considers whether or not to extend any time
periods or to condone a party’s non- compliance with rules or
with case management orders. Unfortunately, this important factor is
not available for consideration.













[39] Also if one looks at
the downside of Mr Boesak’s submission that the court should
consider the far reaching consequences of the nature of the
application - of which the respondent was clearly aware all along -
due to the advice received - one would have expected the respondent -
particularly as a consequence of such advice - to prosecute his
defence with vigour in order to escape from the far- reaching nature
and consequences of the relief sought by the applicant.













[40] It appears
particularly, if one has regard to these factors and the vague
explanations proffered, that the respondent has not given a
reasonable explanation for his default and thus has not shown a
‘lawful excuse’ for the various non –compliances in
this case.













[41] The question then
arises, what sanctions should be applied or imposed?













[42] It has emerged that
the cost orders made on 25 June and 2 July 2013 against respondent
have had no impact on the conduct of the respondent.













[43] Nevertheless Mr
Boesak has urged the court to impose yet a further cost order on the
respondent, and allow him a further opportunity to bring the intended
application.













[44] Ultimately - and
what inclines me not to accede to that plea and to grant the relief
that is sought by the applicant (in the main application) - is the
respondent’s failure to utilise the ample opportunity he has
had to take any steps to meaningfully defend the forfeiture of
property order which he is facing. The failure to meaningfully take
any such steps to oppose that threat is indicative of the fact that
he is not serious in this regard.













[45] In the result I deem
it fit to exercise my powers in terms of the provisions of Rule 35
(16) (i) of the Rules of Court and order that the respondent is
barred from bringing an application in terms of Section 60 (1) of
POCA.













[46]
The respondent is also directed to bear the costs of the hearings of
the 16
thand
23
rdof
July as well as of today.




























----------------------------------



H GEIER



Judge








APPEARANCES













APPLICANT: M Boonzaier



Government Attorney,
Windhoek








RESPONDENT: A W Boesak



Instructed by Inonge
Mainga Attorneys c/o Shikale & Associates, Windhoek





























1(5)
A notice under subsection (3) must contain full particulars of the
chosen address for the delivery of documents concerning further
proceedings under this Chapter and must be accompanied by an
affidavit stating-



(a) full particulars of
the identity of the person giving notice;



(b) the nature and the
extent of his or her interest in the property concerned;



(c) whether he or she
intends to-



(i) oppose the making of
the order; or



(ii) apply for an order-



(aa) excluding his or
her interest in that property from the operation of the order; or



(bb) varying the
operation of the order in respect of that property;



(d) whether he or she
admits or denies that the property concerned is an instrumentality
of an offence or the proceeds of unlawful activities; and



(e) the-



(i) facts on which he or
she intends to rely on in opposing the making of a forfeiture order
or applying for an order referred to in subparagraph (c)(ii); and



(ii) basis on which he
or she admits or denies that the property concerned is an
instrumentality of an offence or the proceeds of unlawful
activities.





2(4)
A notice under subsection (3) must be delivered to the
Prosecutor-General within, in the case of-



(a) a person on whom a
notice has been served under subsection (1)(a), 21 days after the
service; or



(b) any other person, 21
days after the date on which a notice under subsection (1)(b) was
published in the Gazette.





360
Failure to give notice



(1) Any person who, for
any reason, failed to give notice in terms of section 52(3), within
the period specified in section 52(4) may, within 14 days of him or
her becoming aware of the existence of a preservation of property
order, apply to the High Court for condonation of that failure and
leave to give a notice accompanied by the required information





4Meaning
an application in terms of Section 60(1) od POCA





5The
court also ordered the respondent to pay the wasted costs occasioned
by the postponement and the respondent was notified in the order
that ‘any failure to comply with the obligations imposed on
the parties by that order will entitle the other to seek sanctions
as contemplated in Rule 37(16)(e)(i) – ( iv) – and that
– ‘any failure to comply with any of the above
directions will ipso facto make the party in default liable for
sanctions, at the instance of the other party or the court acting on
its own motion, unless it seeks condonation thereof not less than 5
court days before the next scheduled hearing, by notice to the
opposing party’.





624th
September 2013