Court name
High Court Main Division
Case number
POCA 2 of 2013
Title

Shaululu v Prosecutor General and Others (POCA 2 of 2013) [2014] NAHCMD 222 (24 July 2014);

Media neutral citation
[2014] NAHCMD 222
Coram
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: POCA 2/2013




DATE:
24 JULY 2014





In the matter
between:





JOHANNES MANDUME
SHAULULU...........................................................APPLICANT





And





THE
PROSECUTOR-GENERAL.....................................................FIRST
RESPONDENT





THE
ATTORNEY-GENERAL......................................................SECOND
RESPONDENT





THE GOVERNMENT OF
NAMIBIA..............................................THIRD
RESPONDENT





Neutral citation:
Shaululu v The Prosecutor-General (POCA 2/2013) [2014] NAHCMD 222 (24
July 2014)





Coram: PARKER AJ





Heard: 18 June
2014





Delivered: 24
July 2014





Flynote: Practice –
Applications and motions – Application for condonation in terms
of Prevention of Organized Crime Act 29 of 2004 (POCA) –
Applicant failing to bring application to condone failure to give
notice in terms of s 52(3) of POCA – Applicant applying to
court to condone applicant’s failure to bring an application to
condone applicant’s failure to give the notice within the time
limit – Court concluded that an application to condone in terms
of s 60(1) of POCA cannot be considered by court after expiration of
the time limit to bring such application – What the court is
entitled to condone in terms of s 60(1) is the applicant’s
failure to give notice in terms of s 52 of the Act and not the
applicant’s failure to launch a condonation application under s
60(1) – Court held that the court has no power under s 60(1) to
condone a failure to apply to court to condone a failure to give
notice under s 52 – Consequently court dismissed the
condonation application.





Summary: Practice –
Applications and motions – Application for condonation in terms
of Prevention of Organized Crime Act 29 of 2004 (POCA) –
Applicant failing to bring application to condone failure to give
notice in terms of s 52(3) of POCA – Applicant applying to
court to condone applicant’s failure to bring an application to
condone applicant’s failure to give the notice within the time
limit – Applicant failed to give notice in terms of s 52 of
POCA and applicant failed to bring application under s 60(1) to
condone applicant’s failure to give such notice – Court
held that the court has no power to condone applicant’s failure
to bring application for condonation in terms of s 60(1) of POCA –
Court gave reasons for not accepting the applicant’s reasons
for not giving the notice under s 52 and not bringing application to
condone the failure to give the notice under s 52 of POCA.





Flynote: Practice –
Judgments and orders – Rescission of order – Application
in terms of s 58(3) of Prevention of Organized Crime Act 29 of 2004
(POCA) – Preservation of property order granted ex parte in
absence of applicant – When to be granted – Where relief
of no final nature sought – Relief constitutes only a
preliminary step in the proceeding which contemplates the bringing of
application for forfeiture of the preserved property within a
stipulated time in terms of s 53(1) of POCA – Court held that
the Prosecutor General only need to make a prima facie case where the
court is satisfied that there is evidence which if accepted will
establish the Prosecutor-General’s belief based on reasonable
grounds within the meaning of s 51(2) of POCA that the property
sought to be preserved is an instrumentality of an offence under
Schedule 1 of POCA or proceeds of unlawful activities – In
instant case the Prosecutor General had made out a prima facie case –
The test to be applied in deciding whether or not a prima facie case
has been made is that the court should be satisfied that there is
evidence, if accepted, will establish the belief of the Prosecutor
General based on reasonable grounds that the property in question is
an instrumentality of an offence under Schedule 1 of POCA or proceeds
of unlawful activities – Court held that the mere fact that
such evidence could be contradicted cannot disentitle the Prosecutor
General to the grant of a preservation of property order.





Summary: Practice –
Judgments and orders – Rescission of order – Application
in terms of s 58(3) of Prevention of Organized Crime Act 29 of 2004
(POCA) – Preservation of property order granted ex parte in
absence of applicant – When to be granted – Where relief
of no final nature sought – Relief constitutes only a
preliminary step in the proceeding which contemplates the bringing of
application for forfeiture of the preserved property within a
stipulated time in terms of s 53(1) of POCA – Court held that
the Prosecutor General only need to make a prima facie case where the
court is satisfied that there is evidence which if accepted will
establish the Prosecutor-General’s belief based on reasonable
grounds within the meaning of s 51(2) of POCA that the property
sought to be preserved is an instrumentality of an offence under
Schedule 1 of POCA or proceeds of unlawful activities – Court
found that the evidence placed before the court that granted the
preservation of property order established to the satisfaction of
that court that the Prosecutor General’s belief was based on
reasonable grounds that the property is an instrumentality of an
offence under Schedule 1 of POCA or proceeds of unlawful activities –
The Prosecutor General’s belief was not groundless or frivolous
and so the court was inclined to grant the preservation of property
order – The court concluded that applicant has not established
that the preservation of property order was erroneously sought or
erroneously made or that it was made as a result of a mistake common
to the Prosecutor General and Shaululu – Consequently, the
court rejected the relief for rescission of the preservation of
property order.








ORDER








That the application
is dismissed with costs.








JUDGMENT








PARKER AJ:





[1] This is an
application brought on notice of motion in which the applicant, Mr
Shaululu, seeks relief in terms set out in the notice of motion as
follows:





(a) Declaring
section 51(2) of the Prevention of Organised Crime Act, Act 29 of
2004 to be unconstitutional, null and void and of no force or effect.





(b) Rescinding and
setting aside the preservation order granting on 10 May 2013 in the
main application.





(c) In the
alternative to prayer 2 above: Condoning the late filing of the
Applicant’s notice of opposition and granting leave to the
Applicant to file his answering affidavits in the main application
within five (5) days of an order in terms hereof.





(d) Directing that
the First Respondent, together with such further Respondents electing
to oppose this application, to pay the costs of this application.





(e) Granting the
Applicant such further and or alternative relief as the above
honourable court may deem fit.





[2] For good reason
which will become apparent in due course, I should, in the nature of
the application, consider the relief set out in paras (a) and (c) of
the notice of motion at the threshold; para (a), because it raises a
constitutional challenge, and para (c), because if I refuse to grant
Shaululu’s application for condonation, that will be the end of
the matter because Shaululu would then not be entitled to participate
in the proceedings concerning an application for a forfeiture order
as provided in s 52(6)(b) of the Prevention of Organized Crime Act 29
of 2004 (‘POCA’).





Para (a): Declaring
section 51(2) of the Prevention of Organised Crime Act, Act 29 of
2004 to be unconstitutional, null and void and of no force or effect





[3] I note that a
selfsame constitutional attack on s 51(2) of POCA was rejected by a
bench of three judges in Shali v Attorney-General [2013] NAHCMD 5 (16
January 2013). Shaululu sought to distinguish the Shali case from the
present case on the basis that, according to Shaululu, the property
in question in that case was in a foreign bank ‘which can with
ease be dissipated’ but in the instant case the property
involved was at all material times in the custody and under the
control of officials of the Namibian Police (NAMPOL).





[4] It is worth
noting, in this regard, the following. The property in question was
seized in virtue of NAMPOL’s power exercised during
investigations of a crime allegedly committed by Shaululu and not in
execution of an order of the court (or any other competent court). It
follows irrefragably and reasonably that the NAMPOL officials can, in
the exercise of their power, return the property to Shaululu at any
time. In that event nobody, including the Prosecutor General (the
second respondent), can tell when the NAMPOL officials will return
the property to Shaululu; neither has anybody, including the
Prosecutor General, the power to stop the NAMPOL officials from
returning the property to Shaululu. And Shaululu, upon receiving the
property would be at liberty to dissipate it in any way he likes. I
therefore, find that it is of no moment in practice where the
property in the Shali case was and where the property in the present
case is.





[5] It is in such
situation as I have sketched previously lies the rational basis for a
preservation order applied for and granted ex parte. As the
Prosecutor General states in her answering papers, ‘There was
at all times the risk that the investigating officer might have to
release the Toyota motor vehicle and the cash in terms of s 31 or s
34 of the Criminal Procedure Act 51 of 1977 if it was decided not to
proceed with the criminal prosecution or if the criminal (trial)
court refused a further postponement, compelling the prosecution to
withdraw the charges. I could never be sure that, if Mr Shaululu were
given notice of the application for a preservation order, the goods
might not be released to him and the purpose of the (preservation of
property) application defeated before it was heard. (Emphasis added)





[6] The Prosecutor
General’s statement resonate in the words of Maritz J in
Bergmann v Commercial Bank of Namibia Ltd 2001 NR 48 at 51A-B which
are instructive because they capture succinctly the essence of the
purpose of an ex parte application in our rule of practice. There,
Maritz J stated that ‘[U]nless it would defeat the object of
the application or … it is … unreasonable, an applicant
should effect service of an urgent application as soon as reasonable
possible on a respondent …’ In other words, where the
service of an application brought on urgent basis and ex parte will
defeat the object of the application or it is unreasonable to serve
it on the respondent, the applicant can dispense with service of the
application on the respondent. Besides, ‘[A]n applicant may’,
stated Teek JP, ‘employ the ex parte procedure when no relief
of a final nature is sought against an interested party’.
(Bourgwell Ltd v Shepavolov and Others 1999 NR 410 at 422I) Teek JP
continued: ‘The existence of a particular practice such as the
one in question renders it unnecessary or improper to require that
due notice be given to the other party in accordance with the
provision of Rule 6(5) of the Rules, especially when the relief
sought by such an application only constitutes a preliminary step in
the proceedings, which proceedings like in casu contemplate the
bringing of a legal suit within a stipulated time.…’
Thus, both on Maritz J’s and Teek JP’s propositions of
law and on the facts, and in the circumstances, of the instant case,
I have no good reason to find fault with the Prosecutor General’s
employing of the ex parte procedure in this matter.





[7] Based on the
reasoning and conclusions put forth previously in response to
Shaululu’s statement that the Shali’s case is
distinguishable, it is my view that any argument that the Shali case
is distinguishable on the facts of the present case as respects the
interpretation and application of s 51(2) of POCA is, with respect,
fallacious and self-serving. In any case, whether or not a statutory
provision is Constitution compliant does not depend upon the facts of
a particular case, as stated by the respondents.





[8] I have no good
reason, therefore, not to accept and adopt the Shali case: the Shali
case is good law. It follows that I should, and I do, reject the
relief sought in para (a) of the notice of motion. I should note that
the essence and relevance of the reasoning and conclusions respecting
the determination of the relief in para (a) find a home in the
consideration of the relief in para (b), too, which I now proceed to
consider.





Para (b): Rescinding
and setting aside the preservation order granting on 10 May 2013 in
the main application.





[9] The first sign
post to read in the enquiry respecting para (b) of the notice of
motion is this: as the respondent’s state in their papers, a
preservation of property order is a necessary precursor to an
application for forfeiture of the property in question provided in s
59(1) of POCA. In other words; the order sought in the preservation
of property application only constitutes a preliminary step in the
proceedings, which proceedings contemplate the bringing of an
application for forfeiture of the preserved property within a
stipulated period in terms of s 53(1) of POCA. See Bourgwells Ltd v
Shepavolov and Others at 422I-423A. For these reasons, the burden of
the court determining a preservation of property application is, in
terms of s 51(2) of POCA, as Mr Trengove submitted, that the court
should be satisfied that the information available to the Prosecutor
General shows on the face of it, that is, to a prima facie extent,
that there are reasonable grounds to believe that the property sought
to be preserved is an instrumentality of an offence referred to in
Schedule 1 of POCA or the proceeds of unlawful activities.





[10] Thus, the
second sign post is whether sufficient facts were placed before the
court, which granted the preservation application, that established
‘on the face of it’, ie to a prima facie extent, that the
property sought to be preserved is an instrumentality of an offence
referred in Schedule 1 of POCA on the proceeds of unlawful
activities.





[11] On the papers
placed before the court in the preservation of property application
the court, which granted the preservation order, the court accepted
that the Prosecutor General had sufficient grounds to believe that
the property sought to be preserved is an instrumentality of an
offence under Schedule 1 of POCA or proceeds of unlawful activities.
The test to be applied in deciding whether or not a prima facie case
has been made in relation to a preservation of property order is that
the court should be satisfied that there is evidence, which if
accepted, will establish the Prosecutor General’s belief based
on reasonable grounds within the meaning of s 51(2) of POCA. The mere
fact that such evidence could be contradicted, as Mr Tjombe
submitted, would not disentitle the Prosecutor General to the grant
of a preservation of property order. It is only when it is quite
clear that the Prosecutor General’s belief is groundless or
frivolous will the court be disposed to refusing the preservation
application. (See Bourgwells Ltd v Shepavolov and Others at 418A-419F
where the court approved South African and English cases on the point
under consideration.) In the instant matter the Prosecutor General’s
belief was not found to be groundless or frivolous.





[12] In a proceeding
like the present where diverse facts justify the drawing of different
inferences – some of which could establish the Prosecutor
General’s case – the court should not pause to consider
the weight and persuasiveness of each possible inference that can be
drawn, but rather the court should confine its enquiry to the
question whether one of the possible inferences to be drawn is in
favour of the Prosecutor General in order for the court to determine
whether a prima facie case has been established. See Bourgwells Ltd v
Shepavolov and Others.





[13] Having applied
the aforegoing principles to the facts that were accepted by the
court in the preservation application as established I conclude that
the Prosecutor General made a prima facie case required for the
granting of a preservation of property order in terms of the relevant
provisions of POCA. Doubtless, those accepted facts constitute prima
facie proof that the property in question is an instrumentality of an
offence under Schedule 1 of POCA or the proceeds of unlawful
activities.





[14] Based on the
aforegoing reasoning and conclusions, I do not find that the
preservation of property order was erroneously sought or erroneously
made or that the order was made as a result of a mistake common to
both the Prosecutor General and Shaululu within the meaning of s
58(3) of POCA. Consequently, I refuse to exercise my discretion to
make an order rescinding the preservation of property order granted
on 10 May 2013. The relief sought in para (b), therefore, also fails;
and it is rejected.





[15] In the notice
of motion, the applicant has moved the court to consider para (c) of
the notice of motion as alternative to para (b) and also if the court
refused to grant the relief in para (a) of the notice of motion. I
have refused to grant the relief in para (a) and (b) of the notice of
motion, and so I proceed to consider para (c) of the notice of
motion.





Para (c): In the
alternative to prayer 2 above: Condoning the late filing of the
Applicant’s notice of opposition and granting leave to the
Applicant to file his answering affidavits in the main application
within five (5) days of an order in terms hereof.





[16] Section 52(3)
of POCA provides:





‘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.’





And what is more and
significant, paras 5 to 7 of the preservation of property order put
Shaululu on notice of these relevant provisions of POCA. Furthermore,
on the papers, I accept that the 10 May 2013 order was served on
Shaululu personally on 29 May 2013 by the deputy sheriff, and the
deputy sheriff at the same moment did explain to Shaululu the
contents of that order. It needs hardly saying that the order is
comprehensive and expansive in its content. For instance, the order
instructs in clear terms what Shaululu, a person who has interest in
the property in question, must do; for example, if he desired to
apply for reconsideration of the preservation of the property order
made.





[17] Additionally, s
60(1) of POCA provides:





‘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.’





Thus, s 60(1) gives
an interested person who had failed to give notice in terms of s 52 a
second bite at the cherry, so to speak. The provision gives such a
person the opportunity to apply for condonation, as aforesaid, to
enable him or her to oppose a forfeiture application. But – it
must be stressed – the enjoyment of this statutory largesse is
subject to a time limit. In terms of s 60(1) the interested person
who had failed to give notice in compliance with s 52 must launch his
or her application for condonation of that failure and leave to give
a notice accompanied by the required information. Having sought and
found the intention of the Legislature clearly expressed in the words
of the statutory provision and the purpose of POCA, as set out in the
long title of POCA, I hold that the provisions on the time limits are
peremptory. See Compania Romana de Pescuit (SA) v Rosteve Fishing
2002 NR 297 at 301H-I. The court is, therefore, not entitled to
disregard or extend those time limits.





[18] It follows
indubitably and reasonably that an application for condonation in
terms of s 60(1) cannot be considered by the court after the
expiration of the time limit. The reason is simple. As a matter of
law and logic, if a condonation application has not been launched
within the 14 days’ time limit, there is no condonation
application that has been placed before the court for the court to
adjudicate. Thus, it is only when a condonation application has been
brought in terms of s 60(1) and within the statutory time limit that
the court is entitled to hear such application; and in that event,
the court would have to be satisfied, on good cause shown, that the
applicant was unaware of the preservation order or that it was
impossible for him or her to give the required notice in accordance
with s 52 of the Act.





[19] In this regard,
it must be remembered that what the court is entitled to condone in
terms of s 60(1) is an applicant’s failure to give notice in
terms of s 52 and not the applicant’s failure to launch a
condonation application under s 60(1). Put simply the court has no
power under s 60 to condone a failure to apply for condonation. At
all events, the court’s inherent power does not include acting
contrary to express provisions of an Act. (See Sefatsa and Others v
Attorney-General, Transvaal, and Another 1989 (1) SA 821 (A).)





[20] Based on these
reasoning and conclusions, it is with firm confidence that I conclude
that POCA has not vested the court with the power to condone the
failure of a person to bring a condonation application in terms of
60(1) of POCA.





[21] I should say
that I do not accept Shaululu’s statement that with his humble
education he did not comprehend what the papers that the deputy
sheriff had served on him meant, and so he did know what to do.
Shaululu does not contradict the deputy sheriff’s affidavit of
service statement that he explained to Shaululu the contents of these
papers when he served the papers on him. Shaululu does say he
informed the deputy sheriff that he did not understand the
explanation the deputy sheriff had given. Shaululu does not say that
he asked the deputy sheriff whether the papers he had served on him
came from the ‘Oranjemund Magistrates Court’ in
connection with Shaululu’s criminal case in Oranjemund.
Accordingly, I find that Shaululu knew what the papers that the
deputy sheriff had served on him were and he understood the
explanation given to him by the deputy sheriff, but Shaululu decided
to wait until he could ‘by chance’ at some time in the
future show ‘the document to a family member in Ondobe
village’, who has remained anonymous.





[22] Based on these
reasons the relief sought in para (a) of the notice of motion also
fails, and it is rejected. Shaululu is denied leave to file an
answering affidavit in the main application, that is, the forfeiture
application.





[23] In the result,
I make the following order. Shaululu’s application is dismissed
with costs.











C Parker





Acting Judge



APPEARANCES








APPLICANT: N
Tjombe


Of Tjombe-Elago
Law Firm Inc., Windhoek








RESPONDENTS: W
Trengove SC (assisted by M Boonzaier)





Instructed by
Government Attorneys, Windhoek