Court name
High Court Main Division
Case number
POCA 3 of 2013
Title

Mwashekele v Prosecutor General (POCA 3 of 2013) [2014] NAHCMD 349 (20 November 2014);

Media neutral citation
[2014] NAHCMD 349
Coram
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: POCA 3/2013





DATE:
20 NOVEMBER 2014





In the matter
between:





IGNATIUS HAUFIKU
MWASHEKELE................................APPLICANT





And





THE PROSECUTOR
GENERAL......................................RESPONDENT








Neutral citation:
Mwashekele v The Prosecutor General (POCA 3/2013) [2014] NAHCMD 349
(20 November 2014)





Coram: PARKER AJ





Heard: 8 October
2014





Delivered: 20
November 2014





Flynote: Practice –
Applications and motions – Application to condone
non-compliance with relevant provisions of the Prevention of
Organized Crime Act 29 of 2004 (‘POCA’) – Applicant
failed or refused to bring application in terms of s 60(1) to condone
applicant’s failure to give notice in terms of s 52(3) of POCA
– Court found that the court has no power to condone the
applicant’s failure to bring application in terms of 60(1) –
Court rejected counsel’s argument that the court should invoke
its inherent power and grant a condonation over and above s 60(1) –
Court held on authority that court cannot have an inherent power
which would entitle the court to act contrary to an express provision
of an Act – Court held further that to use the terms ‘inherent
power’ at large and loosely, without reference to a specific
aspect of a particular law, makes the term empty, meaningless and
otiose – Court held that the inherent power of the court to
fill in the gaps in the interpretation of legislation flow logically,
ie inherently, from the doctrine of casus omissus in the
interpretation of legislation – Upon the correct interpretation
of the relevant provisions of POCA and upon the application of those
provisions, the court rejected applicant’s counsel’s
arguments and the application and dismissed the application with
costs.





Summary: Practice –
Applications and motions – Application to condone
non-compliance with relevant provisions of the Prevention of
Organized Crime Act 29 of 2004 (‘POCA’) – Applicant
failed or refused to bring application in terms of s 60(1) to condone
applicant’s failure to give notice in terms of s 52(3) of POCA
– Court found that the court has no power to condone the
applicant’s failure to bring application in terms of 60(1) –
Court rejected counsel’s argument that the court should invoke
its inherent power and grant a condonation over and above s 60(1) –
Court found that having failed or refused to take advantage of s
60(1) in terms of which he could bring an application to condone,
applicant cannot bring an application to condone his failure or
refusal to bring a condonation application under s 60(1) –
Court found that there is one power in terms of s 60 to condone such
application and there can be only one application to condone under s
60 of POCA – Court found further that it is not entitled to
entertain applicant’s application because as a matter of law
and logic there is no application to condone properly before the
court for the court to determine – In the result the
application was dismissed with costs.








ORDER








The application is
dismissed with costs.








JUDGMENT








PARKER AJ:





[1] In this matter
the applicant Mr Mwashekele has brought an application by notice of
motion in which he seeks the relief set out in the notice of motion.
The cover sheet of the notice of motion indicates that it is an
application in terms of s 60 of the Prevention of Organized Crime Act
29 of 2004 (‘POCA’). The respondent has moved to reject
the application. The facts at play in the matter are not in dispute.
Briefly, they are as follows. On May 2013 the court granted a
preservation order in terms of s 51 of POCA for the preservation of
an amount of R207 000 in cash and a Toyota motor vehicle. The
preservation order was duly served on 3 June 2013 on the applicant,
who was identified as a person who has an interest in the properties,
and published in the Government Gazette on 31 May 2013.





[2] The applicant
did not give the requisite notice in terms of subsec (3), read with
subsec (4), of s 52 of POCA within the time limit prescribed therein.
On 25 July 2013 the applicant launched the present application.





[3] I should say at
the outset that the determination of the application turns primarily
on the interpretation and application of the relevant provisions of
ss 52 and 60 of POCA. And so, it is to the interpretation and
application of those provisions that I now direct the enquiry. But
before I proceed on this route I think it is necessary, in order to
appreciate fully the meaning and purpose of those provisions and
their impact, to set out those provisions.





[4] Section 52
enacts in relevant parts that -





‘52. Notice of
preservation of property order





(1) If the High
Court makes a preservation of property order, the Prosecutor-General
must, as soon as practicable after the making of the order-





(a) give notice of
the order to all persons known to the Prosecutor-General to have an
interest in the property which is subject to the order; and





(b) publish a notice
of the order in the Gazette.





(2) A notice under
subsection (1)(a) must be served in the manner in which a summons
whereby civil proceedings in the High Court are commenced is served
or in any manner prescribed by the Minister.





(3) 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.





(4) An 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.





(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.





(6) A person who
does not give notice in terms of subsection (3), accompanied by an
affidavit in terms of subsection (5), within the period referred to
in subsection (4) is not entitled-





(a) to receive, from
the Prosecutor-General, notice of an application for a forfeiture
order in terms of section 59(2); or





(b) subject to
section 60, to participate in proceedings concerning an application
for a forfeiture order.’





And section 60
provides in relevant parts thus:





‘60. 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.





(2) An application
in terms of subsection (1) may be made before or after the date on
which an application for a forfeiture order is made under section
59(1), but must be made before judgment is given in respect of the
application for a forfeiture order.





(3) The High Court
may condone the failure and grant the leave as contemplated in
subsection (1), if the court is satisfied on good cause shown that
the applicant-





(a) was unaware of
the preservation of property order or that it was impossible for him
or her to give notice in terms of section 52(3); and





(b) has an interest
in the property which is subject to the preservation of property
order.





(4) When the High
Court grants an applicant leave to give notice as referred to in
subsection (3), the Court-





(a) must make an
appropriate order as to costs against the applicant; and





(b) may make an
appropriate order to regulate the further participation of the
applicant in proceedings concerning an application for a forfeiture
order.





(5) A notice given
after leave has been obtained under this section must contain full
particulars of the chosen address of the person who gives the notice
for the delivery of documents concerning further proceedings under
this Chapter and must be accompanied by the affidavit referred to in
section 52(5).’





[5] Ms Boonzaier,
counsel for the respondent, referred the court to Rally for Democracy
and Progress and Others v Electoral Commission of Namibia and Others
2013 (2) NR 390 (HC) where at para 45 a full court put forth the
justification for imposing time limits and the danger of the court’s
failure to apply the rules and the law.





[6] On the
peremptoriness of the time limits prescribed in the aforegoing
provisions, I had this to say in Shaululu v The Prosecutor General
(POCA 2/2013 [2014] NAHCMD 222 (24 July 2014), para 17:





‘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.’





[7] Keeping these
principles in my mind’s eye I now proceed to undertake an
interpretation and application of the aforementioned relevant
provisions of POCA.





[8] The basic
proposition in Mr Khama’s argument boils down to this, and it
may be put in laconic terms thus. Under POCA, so says Mr Khama, the
court has two separate and distinct powers to condone not only the
failure of a person X, to give the requisite notice where X has, for
any reason under the sun, failed to give that notice in terms of s
52(3) within the time limit prescribed by s 52(4) (‘first
failure’), but also X’s failure (‘second failure’)
to apply to the court to condone X’s first failure in terms of
s 60(1). And, according to Mr Khama, the first power to condone X’s
first failure is given the court by subsec 1 of s 60, and so, that
section is the basis of the first power. This is the court’s
statutory power. According to Mr Khama, the second power is the
court’s inherent power. Thus, Mr Khama’s argument is that
in virtue of the court’s inherent power, the court is entitled
to invoke its inherent power and condone X’s second failure.





[9] The burden of
the court is, therefore, to bring Mr Khama’s argument under
judicial scrutiny to see if it will pass muster. If it does not, the
application fails, and the reasoning and conclusions and holding in
Shaululu v The Prosecutor General, which Ms Boonzaier agrees with,
would be vindicated as correct and Shaululu would be vindicated as
good law. The ratio in Shaululu in words of one syllable is that the
court has only one power and it is given by s 60(1) of POCA, that is,
the power to condone X’s first failure: it has no second or
other power to condone X’s second failure.





[10] Mr Khama argued
strenuously that even if the applicant did not take advantage of the
statutory largesse offered to him by s 60(1) to apply to the court to
condone his first failure, the court is entitled to invoke its
inherent power (the second power) to condone the applicant’s
second failure. Naturally, Mr Khama does not see Shaululu as good
law. In this regard we are reminded by the high authority of Rabie
ACJ in Sefatsa and Others v Attorney-General, Transvaal and Another
1989 (1) SA 821 (A) that the court cannot have an inherent power
which would entitle the court to act contrary to an express provision
of an Act of Parliament. But then Mr Khama argued further that POCA
has not taken away the court’s inherent power. I agree. I did
not hear Ms Boonzaier to submit that it has. In any case to use the
term ‘inherent power’ at large and loosely, without
reference to a specific aspect of a particular law, as Mr Khama does,
makes the term empty, meaningless and otiose. See Haidongo Shikwetepo
v Khomas Regional Council and Others Case No. A 364/2008 (Unreported)
where upon authorities the meaning and essence of the term are
explained. It must be remembered that Mr Khama referred boldly and
persistently to the term ‘inherent power’ without
explaining the meaning of the term, and he did not give one iota of
reason why the term should apply in the instant proceeding.





[11] In this regard,
I should say that in statute law in the interpretation and
application of a provision of a statute the court may exercise its
inherent power in order to fill in the gaps in the statute, if,
indeed, there are gaps to fill in, so as to bring meaning and purpose
to the provision whose interpretation and application appear to offer
some difficulty. Thus, there is the inherent power of the court to
fill in the gaps in the construction of statutes, and that power
flows logically, ie inherently, from the doctrine of casus omissus in
the interpretation of legislation. In the instant case the precise
words of the relevant provisions of s 52 and s 60 are clear and
unambiguous and their interpretation and application offer no
difficulty – none at all – in getting the meaning and
purpose of those provisions. There are no gaps to fill in. No casus
omissus exists in those provisions that would necessitate calling in
aid the inherent power of the court. The court has, therefore, no
business, so to speak, to invoke its inherent power in the
interpretation and application of the relevant provisions of POCA
without amending POCA, an exercise which would not be Constitution
compliant.





[12] In its wisdom
the Legislature has seen it fit to set time limits in terms of subsec
(3), read with subsec (4), of s 52. Furthermore, also in its wisdom,
the Legislature has seen it fit to give the court the power, ie the
discretionary power, to condone X’s first failure. But –
and this is important – the court’s power to condone X’s
first failure is a guided discretionary power in the sense that the
court may exercise its discretionary power under s 60(1) upon a
consideration of the requisites prescribed in the chapeu and paras
(a) and (b) of subsec (3) of s 60, and, further, if the application
to condone is launched within the statutorily prescribed time limit.
Thus, the court may, for instance, exercise its discretion in favour
of granting condonation of the ‘first failure’ only (a)
where, without any allowance, an application to condone has been
launched within the statutorily prescribed time limit in terms of s
60(1), and (b) if the applicant satisfies the statutorily prescribed
requisites in s 60(3); otherwise, as a matter of law and rudimentary
logic there is no application properly before the court calling on
the court to determine. See Shaululu v The Prosecutor General.





[13] It is clear,
therefore, that – to use a pedestrian language – the
court has not been left to its own devices when it comes to
considering applications to condone in terms of the POCA provisions.
The court has not got a free rein in the exercise of its discretion
under subsec (1), read with subsecs (2) and (3), of s 60. The court’s
discretion under subsec (1) must be exercised in strict accordance
with the guidance prescribed by subsecs (1), (2) and (3) of s 60.





[14] Thus, as I say,
in the instant matter, the Legislature has given the court the power
to act, but act, only where good cause is shown and where certain
prescribed requisites exist. In such event it would, with respect, be
sheer idle submission for counsel to argue that the court’s
inherent power entitles the court to act outwit the clear,
unambiguous and peremptory provisions of the Act in question by
invoking some unexplained and amorphous inherent power of the court.
As I have said previously, to use the term ‘inherent power’
at large without reference to a specific aspect of a particular law,
as Mr Khama does, is meaningless, empty and otiose. Such approach
would set at naught ‘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. (Shaululu v The
Prosecutor General, para 17) If it was the intention of the
Legislature to give the court the ‘second power’ to
condone a ‘second failure’, nothing would have prevented
the Legislature from making such of its intention known by express
words, as it has done in s 60(1) with regard to a first failure.





[15] I should add
that the interpretation and application of the relevant provisions of
POCA undertaken in Shaululu apply with equal force to the present
application. And I do not think anything has happened which could
remotely lead to the conclusion that between the dates on which
judgment in Shaululu was delivered and date of the hearing of the
instant application the relevant applicable law of POCA and its
interpretation and application have undergone a change.





[16] This conclusion
leads me to a consideration of the other submission by Mr Khama,
namely, that subsec (2) of s 60 also gives the court a second power
to condone the applicant’s second failure. And what is
counsel’s argument. It is this. According to Mr Khama ‘a
person who failed to give notice in terms of section 52(3) may apply
for condonation before or after an application for forfeiture has
been made’.





[17] With the
greatest deference to Mr Khama, Mr Khama misreads s 60. It is trite
that words of a statute (and, of course, any other legal instrument)
ought to be considered intertextually and as a whole when one is
interpreting and applying provisions of the statute. That much Mr
Khama agrees because counsel referred to that approach in his
submission. Upon the intertextuality approach I should say that it is
abundantly clear that, as I have said previously, the phrase ‘that
failure’ in the penultimate line of subsec (1) of s 60 refers
to a person’s failure to give notice in terms of s 52(3)
(‘first failure’) which the court may condone in terms of
s 60(1). And the phrase ‘the failure’ in the first line
of subsec (3) of s 60 is formulated as ‘that failure’ in
the penultimate line in subsec (1), ie the ‘first failure’.
It follows irrefragably that subsec (1) and subsec (2) refer to a
single failure, ie the first failure. Furthermore, upon the
intertextuality approach, it is unmistakable that the clause ‘apply
to the High Court’ in lines 3 and 4 of subsec (1) of s 60 is
what is formulated in line 1 of subsec (2) as the phrase ‘An
application’. Both subsections are talking about one
application. Thus, pace Mr Khama, only one application, ie
application to condone, is provided in s 60 of POCA. No further
application or applications are contemplated.





[18] A person who
has failed to give the requisite notice under s 52(3), read with s
52(4), ‘may’, if he so desires, take advantage of s
60(1). It need hardly saying that the word ‘may’,
contrary to Mr Khama’s submission, is an enabling verb,
‘expressing a wish’ (Concise Oxford English Dictionary,
11 ed). Looking at the syntax of the sentence in which ‘may’
occurs in s 60(2) (and, indeed, in s 60(1)), the word ‘may’
is not used to connote an antithesis of the verb ‘must’.
And the use of ‘may’ does not detract from the fact that
if a person fails or refuses to take advantage of the allowance in s
60(1), there is no second cherry for such a person to bite, so to
speak.





[19] As I have said
more than once, s 60 provides for only one condonation application
and that is the application which the court may grant in terms of
subsec 1, read with subsec (3) and (4), of POCA. (Shaululu) All that
subsec 2 of s 60 says is that such application, ie the application to
condone, may be made before or after the date on which an application
for a forfeiture order is made under s 59(1), but, in any case, the
application must be made before judgment is given in respect of the
application for a forfeiture order. Section 60(2) does not by any
legal imagination whittle away the time limit prescribed in s 60(1);
neither does it enact a provision, providing for a second condonation
application, as Mr Khama argued.





[20] Based on these
reasoning and conclusions, the application is dismissed with costs.








C Parker





Acting Judge



APPEARANCES








APPLICANT: D
Khama





Instructed by
Sibeya & Partners Legal Practitioners, Windhoek








RESPONDENT: M
Boonzaier





Of Office of the
Prosecutor General, Windhoek