Court name
High Court Main Division
Case number
POCA 9 of 2011
Title

Shalli v Attorney – General and Another (POCA 9 of 2011) [2013] NAHCMD 5 (16 January 2013);

Media neutral citation
[2013] NAHCMD 5
Coram
Smuts J
Geier J





IN THE HIGH COURT OF NAMIBIA







REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: POCA 9/2011








In the matter between:








MARTIN SHALLI
....................................................................................APPLICANT








and








THE ATTORNEY-GENERAL
.......................................................1ST
RESPONDENT



THE PROSECUTOR-GENERAL
.................................................2ND
RESPONDENT








Neutral Citation:
Shalli v The Attorney – General (POCA 9/2011) [2013] NAHCMD
5 (16 January 2013)








Coram: SMUTS, J et
GEIER, J



Heard: 19 October 2012



Delivered: 16 January 2012










JUDGMENT





SMUTS, J









  1. The issue raised in this application
    is the constitutionality of the Prevention of Organized Crime Act,
    29 of 2004 (“POCA”). The applicant had in his notice of
    motion applied to set aside the entire Act as unconstitutional and
    invalid. In the alternative, sections 50-56 and 59-71 of POCA are
    sought to be set aside. In argument, the applicant’s attack
    became confined to the alternative and thus to the constitutionality
    of chapter 6 of POCA. It is entitled “Forfeiture
    of property and related matters
    ”. Before referring to
    this chapter within the scheme of the Act, and the challenges made
    upon it, the facts which have given rise to this application are
    first referred to.










  1. The applicant is General Martin
    Shalli. He is the former Chief of the Namibian Defence Force (“NDF”)
    and Namibia’s former High Commissioner to Zambia. In his
    capacity as Chief of the NDF, he was responsible for the
    implementation of an agreement in terms of which the Government of
    Namibia had purchased military equipment from a Chinese State-owned
    company, Poly Technologies Inc. It is alleged that he had received
    bribes from that company of some U$700,000 which, so it is alleged,
    he placed in bank accounts in Zambia. It is alleged that this
    conduct is in contravention of ss 33, 36, 43 and 45 of the Anti
    Corruption Act, 8 of 2003 and of ss 4, 5 and 6 of POCA.










  1. This application was prepared in
    anticipation of a further ex parte application for a
    preservation order under chapter 6 of POCA. There had been a prior
    preservation order which was set aside for reasons which are not
    relevant for present purposes. On 2 May 2012, this court, per Van
    Niekerk J, granted a further preservation order in the form of a
    rule nisi. This application was then brought. By agreement
    between the applicant and respondents, the return date in the
    preservation order is to stand over until this constitutional
    challenge has been heard and finalized. In the preservation order,
    the applicant was called upon to show cause why an order should not
    be made in terms of s 51 of POCA for the preservation of the money
    in two of the bank accounts in Zambia.










  1. The founding affidavit, prepared as a
    matter of urgency in view of the imminent issuing of a further
    preservation order, is brief and lacking in specificity as to the
    foundation of the constitutional challenges upon POCA as a whole or
    upon the sections which are identified in the notice of motion and
    referred to above in the alternative. The respondents take the point
    that the founding affidavit does not sufficiently identify the
    causes of action upon which the application is based or the
    provisions of POCA at which they are directed. The respondents
    however in their answering affidavit proceeded to identify three
    features of chapter 6 of POCA which they considered to be those
    which the applicant contended rendered the chapter 6 (and the Act)
    unconstitutional. In a more detailed reply, the applicant would
    appear to have accepted the identification of those three causes of
    action.










  1. Mr Trengrove SC who appeared for the
    respondents submitted that the applicant in heads of argument filed
    on his behalf had raised issues which were not pleaded or had not
    been pleaded with the required degree of precision and specificity.
    He submitted that the respondents had not had any or sufficient
    opportunity to address them and to plead to them and place evidence
    before court justifying the constitutional limitations contended for
    by the applicant. Mr Trengrove however proceeded to address argument
    on the causes of action identified and referred to in the answering
    affidavit and submitted that these did not establish a cause of
    action for the relief claimed in the notice of motion.










  1. This court has previously stressed
    that the rules of pleading apply to applications in which the
    constitutionality of statutory provisions is raised. It stressed the
    importance of precisely identifying the impugned provisions and that
    the attack upon them should be substantiated so that a respondent is
    fully apprised of the case to be met and evidence which might be
    relevant to it.1










  1. This application will be addressed on
    the basis of the causes of action as pleaded in the founding
    affidavit and the issues identified as constituting the challenge in
    the answering affidavit which were further dealt with in the
    replying affidavit.



















The overall purpose and
statutory context of POCA









  1. Before referring to the provisions
    relating to asset forfeiture embodied in chapter 6 of POCA, it is
    apposite to refer to the overall purpose of POCA and its statutory
    context. This court in Lameck referred to the restrictions
    and prohibitions contained POCA and held that these were in the
    public interest and serve a legitimate object, taking into account
    the Act’s overall purpose. In doing so this court embraced the
    way in which the purpose of similar legislation was set out by the
    South African Constitutional Court in the following terms:




The
Act’s overall purpose can be gathered from its long title and
preamble and summarised as follows: The rapid growth of organised
crime, money laundering, criminal gang activities and racketeering
threatens the rights of all in the Republic, presents a danger to
public order, safety and stability, and threatens economic stability.
This is also a serious international problem and has been identified
as an international security threat. South African common and
statutory law fail to deal adequately with this problem because of
its rapid escalation and because it is often impossible to bring the
leaders of organised crime to book, in view of the fact that they
invariably ensure that they are far removed from the overt criminal
activity involved. The law has also failed to keep pace with
international measures aimed at dealing effectively with organised
crime, money laundering and criminal gang activities. Hence the need
for the measures embodied in the Act.








It
is common cause that conventional criminal penalties are inadequate
as measures of deterrence when organised crime leaders are able to
retain the considerable gains derived from organised crime, even on
those occasions when they are brought to justice. The above problems
make a severe impact on the young South African democracy, where
resources are strained to meet urgent and extensive human needs.
Various international instruments deal with the problem of
international crime in this regard and it is now widely accepted in
the international community that criminals should be stripped of the
proceeds of their crimes, the purpose being to remove the incentive
for crime, not to punish them. This approach has similarly been
adopted by our Legislature . . .”.
2









  1. It was also pointed out by Mr
    Trengrove in argument that POCA also gave effect to the
    international obligations of the Namibian state under various
    international treaties. He referred to the United Nations Convention
    against Transnational Organised Crime 3
    which obliges state parties to take wide-ranging measures to combat
    organised crime and specifically to adopt measures to enable the
    confiscation of the proceeds of crime and property or equipment or
    other instrumentalities used in or destined for use in the
    commission of crimes. Mr Trengrove also referred to the United
    Nations Convention against Corruption. 4
    This obliges state parties to adopt measures to combat corruption
    including those which enable the confiscation of the proceeds of and
    instrumentalities of various forms of corruption by the freezing or
    seizure of items for the purpose of their eventual confiscation. Mr
    Trengrove also referred to the other provisions of POCA which give
    effect to these treaties by criminalising racketeering in chapter 2,
    criminalising various forms of money laundering in chapter 3,
    criminal gang activities in chapter 4, confiscating the benefits of
    crimes from criminals in chapter 5 and the forfeiture of
    instrumentalities or proceeds of crime wherever they may be found,
    whether in the hands of a criminal or not, as is set out in chapter
    6.









Asset forfeiture under POCA









  1. Both counsel referred to the two
    fundamental forms of forfeiture provided for in chapters 5 and 6
    respectively. Chapter 5, entitled “Confiscation
    of Benefits of Crime”,
    essentially provides for
    confiscation orders made against a person convicted of an offence.
    This procedure is described in more detail by this court in Lameck.
    5
    This form of confiscation is often referred to as “criminal
    forfeiture”
    . As is pointed out by Mr Trengrove, this is
    somewhat of a misnomer as the order is a confiscation order and is a
    civil judgment against the accused for the payment of an amount of
    money to the State after a preceding enquiry has been completed. Mr
    Gauntlett SC, who together with Mr F Pelser appeared for the
    applicant, also referred to this as criminal forfeiture although he
    also used the term of “forfeiture
    in
    personam
    which may more accurately describe the procedure. He differentiated
    this form of forfeiture from that contained in chapter 6 by
    reference to the latter as in rem forfeiture – or civil
    forfeiture as was also referred to by Mr Trengrove.










  1. Mr Gauntlett however submitted that
    both forms of forfeiture in POCA are constitutionally problematic in
    that they:










  • violate the right to property in the
    sense that property is rendered liable to forfeiture despite the
    crime not having been proved in accordance with the standard
    applicable to crimes, being beyond reasonable doubt, and
    irrespective of whether the prosecution of the crime was continued
    after the institution of POCA proceedings;



  • violate an accused’s fair trial
    rights in the parallel criminal proceedings by requiring an accused
    to provide a defence or prove an exception to the preservation or
    forfeiture provisions; and



  • violate an accused’s right to a
    fair procedure in POCA proceedings by truncating the proper
    procedural safeguards applicable to civil proceedings in peremptory
    terms; and



  • violate an accused’s right to
    dignity by subjecting him or her to legal proceedings for the
    perceived greater public interest allegedly served by POCA.









Given the nature of the applicant’s
challenge only the asset forfeiture required in chapter 6 is directly
addressed in this judgment.








Chapter 6 of POCA









  1. The nature of the remedy under
    chapter 6 is described in some detail in Lameck. 6
    In short, the asset forfeiture regime under chapter 6 entails the
    forfeiture of two categories of property. These are the
    instrumentalities
    of crime as defined in s 1 and the proceeds of unlawful activities,
    also defined in s 1. The latter definition includes within its sweep
    any property or any
    service, advantage, benefit or award that was derived, received or
    retained, directly or indirectly in Namibia or elsewhere at any time
    or after the commencement of this Act, in connection with or as a
    result of any unlawful activity carried on by any person and
    includes any property representing property so derived and includes
    property which is mingled with property that is proceeds of unlawful
    activity.”










  1. This court in Lameck, 7
    in following the Supreme Court of Appeal in South Africa 8
    referred to asset forfeiture under this chapter as having the
    following purposes:









The
interrelated purposes of Ch 6 include: (a) removing incentives for
crime; (b) deterring persons from using or allowing their property to
be used in crime; (c) eliminating or incapacitating some of the means
by which crime may be committed; and (d) advancing the ends of
justice by depriving those involved in crime of the property
concerned . . .”.









  1. Section 50 describes the proceedings
    contained in chapter 6 as being civil proceedings and not criminal
    proceedings. Mr Gauntlett however submitted that the description by
    the legislature of the proceedings as civil could not insulate a
    provision – or the provisions of the chapter – from
    constitutional scrutiny. I agree. The substance of the process would
    need to be examined. This court in Lameck held that the
    nature of those proceedings are civil with reference to the
    substantive provisions contained in that chapter. 9
    Chapter 6 proceedings are thus not merely civil by reason of the
    description of those proceedings contained in s 50(1). In reaching
    its conclusion, the court in Lameck stressed that those
    proceedings are not necessarily related to the prosecution of an
    accused and are open to the State to invoke whether or not there is
    a criminal prosecution. It is also apparent from the provisions
    contained in the chapter that even if there is a prosecution, the
    remedy would not be affected by its outcome. This court in Lameck
    also made it clear that the remedy in chapter 6 is directed at the
    proceeds and instrumentalities of crime and not at the person having
    possession of them. 10
    Although the remedy may contain some unusual features, it is in
    essence and in substance civil in nature.










  1. Asset forfeiture under chapter 6, is
    dealt with by means of two forms of orders. There are firstly
    preservation orders dealt with in ss 51-58 and forfeiture orders in
    ss 59-68. In essence, preservation orders are given for the purpose
    of freezing the instrumentalities and proceeds of crime pending the
    final determination of an application for the forfeiture of those
    items. As is pointed out by Mr Trengrove, a regime of this nature is
    in furtherance of the Convention against Transnational Organised
    Crime and the Convention against Corruption. Both oblige state
    parties to take measures to enable the freezing or seizure of such
    items and for the purpose of their eventual confiscation.










  1. The power of a court to grant
    preservation orders is set out in s 51 which provides:









(1)
The Prosecutor-General may apply to the High Court for a preservation
of property order prohibiting any person, subject to such conditions
and exceptions as may be specified in the order, from dealing in any
manner with any property.








(2)
The High Court must make an order referred to in subsection (1)
without requiring that notice of the application be given to any
other person or the adduction of any further evidence from any other
person if the application is supported by an affidavit indicating
that the deponent has sufficient information that the property
concerned is-



(a)
an instrumentality of an offence referred to in Schedule 1; or








(b)
the proceeds of unlawful activities,








and
the court is satisfied that that information shows on the face of it
that there are reasonable grounds for that belief.



(3)
When the High Court makes a preservation of property order it must at
the same time make an order authorising the seizure of the property
concerned by a member of the police, and any other ancillary orders
that the court considers appropriate for the proper fair and
effective execution of the order.



(4)
Property seized under subsection (3) must be dealt with in accordance
with the directions of the High Court.









  1. In terms of this section, this court
    must make a preservation order if the application is supported by
    evidence which discloses reasonable grounds to believe that the
    property in question is an instrumentality of an offence referred to
    in schedule 1 or the proceeds of unlawful activities as defined.11










  1. Once an order has been made, s 52
    requires the Prosecutor-General to publish an order in the
    Government Gazette, and to give notice to all persons known to have
    an interest in that property so as to provide them with the
    opportunity to apply for their interest in the property to be
    excluded and to oppose its forfeiture.










  1. Forfeiture orders referred to in ss
    59 - 68, provide for the forfeiture to the State of property which
    is the subject of a preservation order. The Prosecutor-General is
    empowered to apply for forfeiture on notice to interested parties.
    This court may only grant a forfeiture order if it is found on a
    balance of probabilities that the property is an instrumentality of
    an offence referred to in schedule 1 or the proceeds of unlawful
    activities. The far reaching effect of these orders is ameliorated
    by certain provisions in chapter 6 directed at protecting affected
    parties, given the fact that these orders are directed at the
    instrumentalities or proceeds of crime themselves wherever found and
    are not necessarily directed against a convicted criminal who used
    or subsequently possesses those items which may be preserved or
    declared forfeited in the hands of third parties.



  2. The legislature in chapter 6 also
    provides for an innocent owner defence to a forfeiture order to a
    third party. In ss 63 and 65, third parties would need to establish
    on a balance of probabilities that their interest in the property
    had been acquired legally and for consideration at a time when they
    did not know and did not have reasonable grounds to suspect that the
    property constituted an instrumentality or the proceeds of a crime.










  1. I have already referred to the power
    of the court on application to exclude the operation of a
    preservation order upon an interest in the property being
    established by a person subject to that order.










  1. Reasonable living and legal expenses
    can, upon application, be sought by an affected party from the
    property subject to such an order. A court may also rescind or vary
    a preservation order if it deprives an applicant of the means to
    provide for reasonable living expenses and causes undue hardship
    outweighing the risk that the property may be destroyed, lost,
    damaged, concealed or transferred.









The applicant’s challenges
upon chapter 6









  1. It would appear from the applicant’s
    founding affidavit that his challenge to chapter 6 is essentially
    threefold. Firstly the applicant contends that the civil forfeiture
    contemplated in chapter 6 is contrary to the constitutional
    presumption of innocence and in conflict with his right to a fair
    trial enshrined and protected by art 12 of the Constitution.
    Secondly, the applicant contends that the civil forfeiture regime in
    chapter 6 impinges upon his constitutional right to the protection
    of his property protected under art 16. Thirdly, there is the
    applicant’s challenge that civil forfeiture under chapter 6
    violates his right to dignity protected by art 8 of the
    Constitution.









Presumption of innocence and the
right to a fair trial









  1. Mr Gauntlett contended that there was
    not the required connection which rendered need to exist between
    forfeiture under chapter 6 and its purpose which rendered the
    deprivation as being procedurally fair. He submitted that there is
    no rational connection between the means and end or should a
    connection be found to exist, that the connection justifies a higher
    standard than the ordinary civil onus brought about by chapter 6
    which results in the deprivation being procedurally unfair (and in
    conflict with art 12). Mr Gauntlett submitted that the
    constitutional presumption of innocence requires that it is for the
    prosecution to prove guilt of an accused and that proof must be
    beyond reasonable doubt. He submitted that in order to pass
    constitutional muster, the standard of proof in confiscation under
    chapter 6 should be proof beyond reasonable doubt or a civil
    standard of proof which for all practical purposes is
    indistinguishable from the criminal standard. In support of this
    contention he referred to certain authority emanating from the
    European Court of Human Rights. 12
    He further submitted that it also offended the constitutional
    presumption of innocence for POCA to impose a presumption of guilt
    in the sense of presupposing that a crime has been committed.










  1. Mr Trengrove on the other hand
    contended that civil forfeiture under chapter 6 is directed at
    property and the proceeds and instrumentalities of crime and not
    against wrongdoers. He relied upon what was stated by 13
    this court in Lameck as well as by the South African Supreme
    Court of Appeal 14
    and the Supreme Court of Canada in support of this contention. 15










  1. Mr Trengrove submitted that a
    defendant in forfeiture proceedings under chapter 6 is not charged
    with an offence and that the presumption of innocence in art 12(1)
    (d) would not apply. Mr Trengrove further pointed out that art 12(1)
    (d) is identical in material respects to art 6(2) of the European
    Convention, and that significantly, the European Court of Human
    Rights, the Privy Council and the House of Lords and more recently
    the Supreme Court (in England) have consistently held that asset
    forfeiture generally and civil forfeiture in particular are not
    subject to the criminal standard of proof in terms of art 6(2) (of
    the European Convention). Mr Trengrove referred to Phillips v The
    United Kingdom
    16
    where the European Court held that civil proceedings are not subject
    to the presumption of innocence in art 6(2). 17
    That court held that the proceedings for civil recovery of proceeds
    under the Proceeds of Crime Act of 2002 (of England and Wales) are
    civil proceedings and not proceedings where a person is charged with
    a criminal offence within the meaning of art 6(2) of the European
    Convention.










  1. Mr Trengrove further referred to a
    decision of the Privy Council 18
    and the approach of the House of Lords in R v Rezvi 19
    that criminal forfeiture proceedings are civil proceedings which are
    not subject to the presumption of innocence in art 6(2). He further
    referred to a recent decision of the Supreme Court (of England and
    Wales) in Gale 20
    which came to the same conclusion that civil forfeiture proceedings
    under Part V (of the English) Proceeds of Crime Act 2002 are not
    subject to the presumption of innocence. In the leading judgment of
    that court, Lord Phillips distinguished the decisions of the
    European Court including the case of Y v Norway, relied upon by the
    applicant, and concluded by stating:









The
commission by the appellants in the present case of criminal conduct
from which the property that they held was derived, had to be
established according to the civil and not the criminal standard of
proof. For reasons that I have given, that remains my conclusion. It
is a conclusion which, prior to Geerings, appeared to be firmly
founded on the decision of the Privy Council in McIntosh. …..
In my view that foundation is unshaken.”
21









  1. Mr Gauntlett referred to certain
    decisions of the United States Supreme Court. He referred to Austin
    v United States22
    where that court rejected the argument that civil forfeiture is
    justified on the basis of removing the instruments of crime. Mr
    Gauntlett also referred to Halper v United States.23
    Mr Trengrove submitted that the American cases relied upon by the
    applicant are however not helpful by reason of the fact that
    different legal issues were raised by them such as a violation of
    the double jeopardy clause of the Fifth Amendment and the question
    whether criminal forfeiture violated the excessive fines clause of
    the Eighth Amendment.










  1. I have already referred to the
    finding of the full court in Lameck that asset forfeiture
    proceedings are civil in nature. I can find no reason why that
    finding (that civil forfeiture under chapter 6 is a civil remedy
    unrelated to a criminal prosecution and punishment of offenders)
    should not be followed. As civil proceedings and given their nature,
    they do not engage art 12(1) (d) of the Constitution. The
    presumption of innocence would not in my view arise. This approach
    is also consonant with the applicable foreign authority referred to
    above raised within a similar context.










  1. I accordingly conclude that asset
    forfeiture proceedings in chapter 6 of POCA do not violate the
    presumption of innocence applicable to criminal proceedings embodied
    in art 12(1) (d) as that subtitle is not applicable to such
    proceedings.










  1. It was also contended on behalf of
    the applicant that s 51(2) infringes upon the right of a fair
    hearing by requiring in peremptory terms that a preservation order
    is to be sought and granted without notice to the owner of the
    property. This sub-section makes it clear that a court hearing such
    an application must make a preservation order without requiring
    notice of the application to be given to any person affected by it
    once the application discloses reasonable grounds for a belief that
    the property concerned is an instrumentality of an offence referred
    to in schedule 1 or the proceeds of unlawful activities.










  1. Mr Gauntlett referred to the similar
    provision in legislation in South Africa. It is in strikingly
    similar terms. Yet instead of stating that a court “may”
    grant an order, (as in the South African legislation), the Namibian
    legislature chose to employ the term “must”
    instead. He submitted that the use of the term “must”
    in those circumstances would indicate a clear intention on
    the part of the Namibian legislature to require that such orders
    must be granted without notice, with “must”
    being given its ordinary peremptory meaning. He submitted that the
    peremptory and compulsory requirement of making a determination of
    this nature on an ex parte basis offends against the right to
    a fair trial protected by art 12(1) (a) of the Constitution.










  1. Mr Trengrove however countered that
    the “reasonable grounds
    to believe”
    standard for the granting of a preservation
    order sought ex parte is the same standard employed by ss 20
    and 21 of the Criminal Procedure Act, 51 of 1977 for the grant of a
    search warrant where an application for that warrant is also made ex
    parte
    . He further submitted that the purpose of such an order is
    to preserve the property pending the determination of the forfeiture
    application and that there would be inherently high risks in giving
    notice to those with an interest in the instrumentalities and
    proceeds of crimes who could dispose of them, encumber them or even
    destroy them if notice were to be given. He referred to the approach
    of the High Court in Phillips which referred to the
    technological advances made with regard to the transfer of funds at
    great speed to any locations in the world and the reason why the
    procedure for issuing a restraining order should be as expedient as
    possible.










  1. Whilst I accept that in applications
    of this nature compelling circumstances may frequently be raised to
    justify dispensing with notice to a party given the nature of such
    applications, the legislature has instead of vesting a court with a
    discretion to determine matters on that basis, made it peremptory
    for a court to grant such applications without notice and without
    the need for the prosecuting authorities to raise exceptional or
    compelling circumstances why notice should not be given. I would
    have thought that it should have been left to a court to deal with
    an application like this on the latter basis, requiring prosecuting
    authorities to justify dispensing with prior notice of such
    applications. It is not at all clear to me why the legislative
    decided otherwise instead. It would clearly have been better
    legislative policy and better accord with fundamental principles
    governing the fairness of proceedings to have vested that discretion
    in the court in each case so that the prosecuting authorities would
    be required to justify the use of proceedings without notice to
    parties affected by those proceedings. That would plainly have been
    the preferable course and one which the legislature should in my
    view have adopted.










  1. But would the failure to have done so
    and to require the court to grant orders once the reasonable belief
    is established on the papers violate an affected person’s
    (such as the applicant) constitutional right to a fair trial? Mr
    Trengrove submitted that the court may, as it had done in this
    instance, grant a rule nisi which he contends would comply
    with art 12 inasmuch as the requirements of the audi alteram
    partem
    rule would be met, given the inherent flexibility of that
    rule. The court would be granting a temporary order which an
    affected person could answer upon at a return date and in fact may
    even anticipate that return date beforehand. He further referred to
    the approach of a Full Court which had endorsed the approach of
    South African Courts that “an
    order granted
    ex
    parte
    is by its
    nature provisional irrespective of the form it takes.”
    24










  1. Whilst the formulation of s 51(2) and
    the use of the term “must”
    in that sub-section can with some justification be criticised, it is
    not clear to me that the use of that term and the peremptory
    requirement of an ex parte application is in violation of art
    12 and the rights of a fair trial of a person affected by such an
    application. A court hearing such an application should, as occurred
    in this instance, even if satisfied that the requisites for the
    granting of an order are to established, do so by way of a rule nisi
    which would afford a person affected the opportunity to be heard by
    the order. The interim operation of the order would achieve its
    purpose whilst a rule nisi would afford the person affected
    by the order the opportunity to be heard in due course or as a
    matter of urgency if that person would want to anticipate the order.
    By approaching the section in this way, as Van Niekerk, J did in
    this matter, would in my view meet the requirements of a fair trial
    protected by art 12(1). The applicant’s right to a fair trial
    in this matter were in my view not infringed by s 51 (2). But even
    in the absence of a rule nisi, as the Full Court has in my
    view, with respect, correctly held, an order granted ex parte
    is in any event provisional and subject to being set aside on
    application by a party affected by it.










  1. It follows that whilst being
    unfortunately formulated, the provisions of s 51(2) do not in my
    view violate the right of a fair trial protected by art 12(1) nor
    the applicant’s right to a fair trial in this matter.









The right to property









  1. Mr Gauntlett contended that the civil
    forfeiture regime in chapter 6 impinges upon the constitutional
    protection of property rights. He submitted that it was no answer to
    this challenge for the respondents to contend that property procured
    through crime is not protected by art 16. He submitted that such an
    approach would beg the underlying constitutional question as to
    whether civil forfeiture under chapter 6 is compatible with the
    Constitution, despite the justification for the deprivation of
    property (i.e. the fact that a crime must be found to have been
    perpetrated) not being required to be established. He further
    submitted that the respondents’ approach amounted to a “guilty
    property fiction”
    which would not provide a
    constitutionally competent justification. In support of this
    argument, he drew support from an article by Prof van der Walt. 25










  1. Mr Trengrove argued that if the money
    in the applicant’s Zambian banking accounts are the proceeds
    of bribes received from Poly Technologies Inc, then the applicant
    would not be able to credibly argue that art 16 protected him
    against forfeiture of those ill-gotten gains. He further contended
    that the applicant’s ownership of bribe money would not be
    constitutionally protected at all or even if it were to be, then the
    forfeiture of the money pursuant to the purposes of chapter 6 which
    would be a reasonable measure of general application in pursuit of
    the legitimate objectives in the public interest and thus meet the
    test for constraints upon the right to property laid down by the
    Supreme Court in Grape Growers.26










  1. I agree with both of those
    submissions. That would also accord with what was decided in Lameck
    and the approach of the Supreme Court in Grape Growers
    referred to by the court in Lameck. 27










  1. This court however held in Lameck
    that the proceeds of unlawful activity would not constitute property
    in respect of which constitutional protection is available. 28
    This court in that matter further held 29
    that the protection of property under art 16 is in any event not
    absolute but subject to constraints and restrictions which are
    reasonable, in the public interest and for a legitimate purpose as
    had been made clear by the Supreme Court in Namibia Grape Growers
    and Exporters Association and Others v Ministry of Mines and Energy
    and Others
    30
    where the following was stated:









If
it is then accepted, as I do, that art 16 protects ownership in
property subject to its constraints as they existed prior to
independence, and that art 16 was not meant to introduce a new format
free from any constraints then, on the strength of what is stated
above, and bearing in mind the sentiments and values expressed in our
Constitution, it seems to me that legislative constraints placed on
the ownership of property which are reasonable, which are in the
public interest and for a legitimate object, would be constitutional.
To this may be added that, bearing in mind the provisions of the
Constitution, it follows in my opinion that legislation which is
arbitrary would not stand scrutiny by the Constitution . . .”.









  1. Mr Trengrove also referred to the
    approach of the South African High Court 31
    where the Court held that by depriving a criminal of the spoils of
    crime gives expression to the common law principle that no one
    should be allowed to benefit from his own wrongdoing. 32
    Mr Trengrove also referred to the approach of the Supreme Court of
    Appeal in the Cook Properties matter 33
    where the Court held that it is constitutionally permissible for the
    State to employ the remedy of civil forfeiture to induce members of
    the public to act vigilantly in relation to goods they own or
    possess so as to inhibit crime.34










  1. Mr Trengrove also referred to the
    concluding portion of Prof van der Walt’s article where the
    latter stated:




In
principle, it seems acceptable to treat both criminal and civil
forfeiture of property as regulatory deprivations that are justified
by the State’s police power to regulate and control the use of
property in the public interest (in this case, for the legitimate
public purpose of effective policing, prosecution and conviction of
criminals involved in serious, organised and socially harmful
criminal activities). Therefore, even if a civil forfeiture causes
loss of property or other serious financial disadvantage, it could in
principle still be justifiable, without compensation, provided that
there is a rational connection between the public purpose served, the
means adopted and the individual effects --- there is nothing really
new or different about this notion or the adjudicative processes
involved in it, the courts in most jurisdictions are willing and
well-suited to apply them fairly and reasonably.”









  1. Mr Trengrove also referred to the
    approach of the European Court as well as the House of Lords in
    Rezvi 35
    where Lord Steyn concluded that asset forfeiture “is
    a proportionate response to the problem which it addresses”.
    I
    respectfully agree with that approach as well as with the South
    African High Court in Phillips and the South African Supreme
    Court of Appeal in the Cook Properties matter.










  1. I accordingly conclude that chapter 6
    does not violate the right to property under article 16 of the
    Constitution because art 16 does not protect the ownership or
    possession of the proceeds of crime. I further reiterate the
    approach of the court in Lameck that even if chapter 6 were
    to infringe upon art 16, then it would in my view be a proportionate
    response to the fundamental problem which it addresses, namely that
    no one should be allowed to benefit from their wrongdoing and that a
    remedy of this kind is justified to induce members of the public to
    act with vigilance in relation to goods they own or possess so as to
    inhibit crime. It thus serves a legitimate public purpose.









The right to dignity









  1. The challenge on this ground is not
    fully specified in the founding papers. It was however contended by
    Mr Gauntlett on the applicant’s behalf that the scapegoating
    of individuals in order to deter crime by making examples of them,
    is a violation of human dignity as it treats an individual as a
    means to an end (of dis-incentivising of criminal conduct) without
    proving that the individual concerned is guilty of the underlying
    criminal act. He further submitted that the humiliation which
    accompanies civil forfeiture by requiring an individual to disclose
    all their private financial affairs to the police and then in public
    and on trial, would amount to humiliation and be in violation of art
    8.










  1. Mr Trengrove however on the other
    hand submitted that even though proceedings for the forfeiture of
    instrumentalities or the proceeds of crime would result in
    indignity, this would be inherent in proceedings of that kind. But
    because the proceedings themselves are constitutionally permissible,
    he argued that the indignity inherent in them would thus be
    constitutionally sanctioned and would not violate art 8(1). I agree
    with that submission. Once the proceedings themselves are found not
    to violate the Constitution in other respects, the inherent
    indignity which would accompany them would thus not in my view
    violate art 8 of the Constitution.36









Conclusion









  1. It would follow that the applicant
    has not in this application established that the provisions of
    chapter 6 of POCA violate his constitutional rights in the respects
    contended for in the application.










  1. The application is accordingly
    dismissed with costs. Those costs include the cost of one instructed
    and one instructing counsel.














__________________



DF SMUTS



Judge








I agree








___________________



H GEIER



Judge





















































APPEARANCES








APPLICANT: JJ Gauntlett SC and F
Pelser



Instructed by LorentzAngula Inc








RESPONDENTS: W Trengrove SC



Instructed by Government Attorney









1Lameck
v President of Namibia (“Lameck”) 2012(1) NR 255 (HC) at
par [58], p 271 and the authorities referred to in footnote 21





2National
Director of Public Prosecutions v Mohamed NO 2002(4) SA 843 (CC)





3Ratified
by Namibia on 16 August 2002





4Ratified
by Namibia on 3 August 2004





5Supra
at para’s 62 to 79, p 272-273





6Para’s
80-83 at p 276-277





7Supra
at par [81]





8In
Prophet v National Director of Public
Prosecutions 2006(1) SA 38 (SCA) at par [34] and subsequently
followed by that court in National Director of Public Prosecutions
RO Cook Properties (Pty) Ltd; National Director of Public
Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another;
National Director of Public Prosecutions v Seevnayaran 2004 (2) SACR
208 (SCA) par [18]. Approved in Mohunram and Another v National
Director of Public Prosecutions and Another (Law review project as
amicus curiae)
2007 (4) SA 222 (CC) at par [57]





9At
par [82]





10Supra
at paras 81-82





11See
also generally the unreported judgment of this court: the Prosecutor
– General v Kanime (POCA 3/2012) [2012] NAHCMD 111 (20
December 2012) at para [49]





12Y
v Norway [2003] ECHR 80 at par [46]





13Lameck
supra at
par [81]-[82] referred to in par [14] above





14National
Director of Public Prosecutions v Cook [2004] 2 All SA 491 (SCA) par
[20]





15Chatterjee
v Ontario (Attorney General) [2009] 1 SCR 624 at par [4], [43] and
[46]





16[2001]
ECHR 437 pars 31-35





17Walch
v United Kingdom [2006] ECHR 1154





18McIntosh
v Lord Advocates [2003] 1 AC 1078 at par 14 and 25





19[2002]
UKHL 1 par 10-13





20Serious
Organized Crime Agency v Gale [2011] 1 WLR 2760 pars 2-5 and 13-54
(Lord Phillips), pars 56-57 (Lord Clerke), pars 114 (Lord Brown) and
para 123 (Lord Dyson)





21Gale
supra par
18-53





22509
US 602 (1993) at 622





23490
US 435 (1989)





24Prosecutor-General
v Lameck 2010(1) NR 156 (HC) par [4] and the authority referred to
in that paragraph





25Van
der Walt “Civil Forfeiture of Instrumentalities and Proceeds
of Crime in the Constitutional Property Clause” 2000 SAJHR 1
at 9 and at 36 – 37 where the learned author criticised the
application of the “guilty property fiction” which Mr
Gauntlett submitted was at the root of the respondents’
constitutional justification for the provisions.





26Cited
below in par [41]





27Lameck
supra par
[52]





28Supra
at par [50]





29Supra
at par [51]





302004
NR 194 (SC) at 212 E-F





31National
Director of Public Prosecutions v Phillips 2002(4) SA 60 (W) at par
[43]





32National
Director of Public Prosecutions
supra
at
par [43] the principle was also adopted by this court in Pinto v
First National Bank of Namibia Ltd (A 98/2011) [2012] NAHCMD 43 (31
October 2012) at par [97] reported at
http://www.saflii.org/na/cases/NAHC/2012/285.html





33Cook
Properties
supra at
par [28]





34Pinto
v First national Bank of Namibia Ltd at par [97]





35Supra
at par [17]





36This
is akin to the constitutional permissibility of the exposure to such
indignity as suffered by all persons subjected to lawful criminal
proceedings for instance.