Court name
High Court Main Division
Case name
Prosecutor-General v Hategekimana
Media neutral citation
[2015] NAHCMD 238
Judge
Parker AJ


















SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
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REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: POCA 5/2014





DATE: 08 OCTOBER 2015





In the matter between:





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





And





EDWARD
HATEGEKIMANA......................................................................................RESPONDENT





Neutral citation: The Prosecutor
General v Hategekimana (POCA 5-2014) [2015] NAHCMD 238 (8 October
2015)





Coram: PARKER AJ





Heard: 30 July 2015





Delivered: 8 October 2015





Flynote: Practice – Applications
and motions – Prevention of Organized Crime Act 29 of 2004, s
61(1) – Forfeiture of property – In determination of
application for an order of forfeiture of property the following
constituent elements of the interpretation and application of s 61(1)
of the Act are crucial: (a) The property which is presently subject
to a preservation of property order granted by this Honourable Court
under case number POCA 5/2014 on 16 May 2014, namely the Nissan
Hardbody with Engine Number KA……….. and Vin
Number ADNJ……… (‘the property’), be
forfeited to the State in terms of section 61, read with section 64,
of the Prevention of Organized Crime Act, Act 29 of 2004 (‘POCA’),
(b) That Sergeant Emilia Nambadi, in whose control the property is in
terms of the preservation of property order, is authorized to: (i)
sell the property at a public auction for a value not less than the
current market value; and (ii) pay the proceeds of the sale into the
Asset Recovery Account, Ministry of Justice – POCA, Standard
Bank Account Number 5………, branch code 0………,
(c) That any person, other than the respondent and Corporate
Development Consortium (CDC), whose interest in the properties
concerned is affected by the forfeiture order, may within 20 days
after he or she has acquired knowledge of such order, set the matter
down for variation or rescission of this order by the Court, (d)
Prayers (a) to (c) shall not take effect before the expiration of 30
days after the notice of this order was published in the Government
Gazette or before an application in terms of section 65 of Act 29 of
2004 or an appeal has been disposed of.





Summary: Applications and motions –
In terms of Prevention of Organized Crime Act 29 of 2004, s 61(1) –
Forfeiture of property – In determination of application for an
order of forfeiture of property the following constituent elements of
the interpretation and application of s 61(1) of the Act are crucial:
(a) The property which is presently subject to a preservation of
property order granted by this Honourable Court under case number
POCA 5/2014 on 16 May 2014, namely the Nissan Hardbody with Engine
Number KA…….. and Vin Number ADNJ………
(‘the property’), be forfeited to the State in terms of
section 61, read with section 64, of the Prevention of Organized
Crime Act, Act 29 of 2004 (‘POCA’), (b) That Sergeant
Emilia Nambadi, in whose control the property is in terms of the
preservation of property order, is authorized to: (i) sell the
property at a public auction for a value not less than the current
market value; and (ii) pay the proceeds of the sale into the Asset
Recovery Account, Ministry of Justice – POCA, Standard Bank
Account Number 5……., branch code 0……..,
(c) That any person, other than the respondent and Corporate
Development Consortium (CDC), whose interest in the properties
concerned is affected by the forfeiture order, may within 20 days
after he or she has acquired knowledge of such order, set the matter
down for variation or rescission of this order by the Court, (d)
Prayers (a) to (c) shall not take effect before the expiration of 30
days after the notice of this order was published in the Government
Gazette or before an application in terms of section 65 of Act 29 of
2004 or an appeal has been disposed of. – In instant case,
court found that certain payments to respondent’s youth
organization were made through corruption of named officials of the
Ministry of Youth and payments obtained fraudulently by the
respondent – Court found that respondent failed to prove to the
satisfaction of the court that respondent’s organization
provided training in favour of the Ministry and supplied certain
equipment to the Ministry – Respondent paid cash for a motor
vehicle (the property to be forfeited) it purchased with part of
moneys that were paid through such corruption and moneys obtained
fraudulently – At all material times no moneys had been paid to
the organization’s bank account except those moneys that were
paid by the Ministry to the organization – Court was satisfied
that applicant has established that the motor vehicle (the property)
was purchased with proceeds begotten by those unlawful activities –
Court concluded that applicant has satisfied the relevant
requirements of s 61(1) of the Act – Consequently, court
granted the application for forfeiture of the property.





ORDER





(a) The property which is presently
subject to a preservation of property order granted by this
Honourable Court under case number POCA 5/2014 on 16 May 2014, namely
the Nissan Hardbody with Engine Number KA…….. and Vin
Number AND………. (‘the property’), be
forfeited to the State in terms of section 61, read with section 64,
of the Prevention of Organized Crime Act, Act 29 of 2004 (‘POCA’).





(b) That Sergeant Emilia Nambadi, in
whose control the property is in terms of the preservation of
property order, is authorized to:





(i) sell the property at a public
auction for a value not less than the current market value; and





(ii) pay the proceeds of the sale into
the Asset Recovery Account, Ministry of Justice – POCA,
Standard Bank Account Number 5………., branch code
08…………..





(c) That any person, other than the
respondent and Corporate Development Consortium (CDC), whose interest
in the properties concerned is affected by the forfeiture order, may
within 20 days after he or she has acquired knowledge of such order,
set the matter down for variation or rescission of this order by the
Court.





(d) This order must be published in the
Government Gazette as soon as practicable, after it is made.





(e) Prayers (a) to (c) shall not take
effect before the expiration of 30 days after the notice of this
order was published in the Government Gazette or before an
application in terms of section 65 of Act 29 of 2004 or an appeal has
been disposed of.





JUDGMENT





PARKER AJ:





[1] This application brought in terms
of the Prevention of Organized Crime Act 29 of 2004 (‘POCA’).
The respondent registered an organization, called Corporate
Development Consortium (‘CDC’), as a youth organization,
with the Ministry of Youth (‘the Ministry’). CDC was
awarded contracts to conduct training in favour of the Ministry and
to deliver equipment to the Ministry. It is the payment for certain
training and delivery of certain equipment that gave rise to the
present matter. Ms Kazondunge represents the applicant; and the
respondent appears in person.





[2] In May last, the court granted a
provisional preservation of property order, being a rule nisi in
terms of POCA for the preservation of a motor vehicle Nissan Hardbody
with Engine Number KA………. and Vin Number AD…………
(‘the property’). The provisional preservation order was
subsequently confirmed by the court; and the respondent was duly
served with the order and application by the deputy sheriff.
Thereafter, the Prosecutor General (‘PG’) launched a
forfeiture of property application in terms of POCA, and the
respondent was duly served with the process. In the course of events,
the court directed the parties to file answering papers and replying
papers, as the case may be.





[3] In his answering papers, the
respondent has moved to reject the forfeiture application and he
denies that the property in question was begotten by proceeds of
unlawful activities. The burden of the court is, therefore, to
determine whether a forfeiture order should be granted in respect of
the property.





[4] In terms of s 61(1) of POCA, the
court must, not may, make the forfeiture order if the court finds on
a balance of probabilities that the property was (1) an
instrumentality of any of the offences referred to in Schedule 1 of
POCA or (2) was begotten by proceeds of unlawful activities.
(Italicized for emphasis). The PG contends item (2) in her
application.





[5] The following is important: In the
determination of a forfeiture application under POCA the following
constituent elements in the interpretation and application of s 61(1)
of POCA are crucial:





(a) If the court finds that the
property in question was an instrumentality of any of the offences
referred to in Schedule 1 to POCA or was born out of proceeds of
unlawful activities, the court has a duty, not a discretion, to make
a forfeiture order.





(b) Proof that the property was an
instrumentality of such offence or was born out of unlawful
activities is established on the standard of proof in civil cases.





(c) The offence involved need not have
been committed by the respondent.





(d) The unlawful activities complained
of need not be exclusively the activities of the respondent.





[6] As to (b) (in para 5, above) it is
well entrenched that in a civil case -





‘where the onus rests on the
plaintiff as in the present case, and where there are two mutually
destructive stories, he can only succeed if he satisfies the Court on
a preponderance of probability that his version is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected.’





(National Employers’ General
Insurance v Jagers 1984 (4) SA 437 at 440E-F)





[7] Furthermore, in DM v SM 2014 (4) NR
1074, para 26, I applied the principle enunciated by the Supreme
Court in M Pupkewitz & Sons (Pty) Ltd t/a Pupkewitz Megabuild v
Kurz (2) NR 775 (SC) at 790B-E, where the Supreme Court stated:





‘Now it is trite law that, in
general, in finding facts and making inferences in a civil case, the
Court may go upon a mere preponderance of probability, even although
(though) its so doing does not exclude every reasonable doubt …
for, in finding facts or making inferences in a civil case, it seems
to me that one may … by balancing probabilities select a
conclusion which seems to be the more natural, or plausible,
conclusion from amongst several conceivable ones, even though that
conclusion be not the only reasonable one.’





[8] On the papers, and having applied
the principles in Jagers and in Kurz, and not forgetting the four
constituent elements that emerge from the interpretation and
application of s 61(1) of POCA (set out in para 5 of this judgment),
I make the following factual findings (in the proceeding paras 9 –
12).





[9] In order for him to succeed in
registering CDC with the Ministry as a youth organization, the
respondent included the names of Onesmus Max and Ishmael Shamena as
members of CDC in order to satisfy the requirement for registration
that such members should be Namibians between the ages of 18 and 35.
There is the uncontradicted claim by Shamena and Max that they have
no idea about CDC; that is, they are not members of CDC. The
inference I draw is that from day-one the respondent cooked a plan to
use CDC to deceive the Ministry. I hasten to add that this inference
is not, of course, enough for the application to succeed, if the
respondent had done no more than misuse the names of Shamena and Max.
But the inference I have drawn is significant: it goes to the state
of mind of the respondent when he registered CDC with the Ministry,
that is, to use CDC to deceive as I have found previously. On her
part, Ms Kazondunge submitted that the respondent planned to use CDC
to defraud the Ministry. The submission is not far from the truth.





[10] In the period May 2012–March
2013 the Ministry paid N$938 630 to CDC in respect of seven
transactions. Payment vouchers of five of the seven transactions are
nowhere to be found in the Ministry. The five transactions were only
reflected in the payment history ledger. The five transactions relate
to: (a) N$155 780, for a ‘mini loading crane’; (b) N$196
000, for a ‘paver’; (c) N$105 000, for ‘training’;
(d) N$165 000, for ‘training’; and (e) N$116 850, for
‘equipment’.





[11] The Ministry’s procurement
procedures were not followed in the making of payments for the five
transactions based on the following findings: An Acting Chief Clerk
in the Procurement Department of the Ministry, Ms Tjatindi, did not
process the payment in item (b) (N$196 000) for a ‘paver’,
even though her name is reflected in the record as the official who
processed the payment. I accept that another official Joseph Haita
used Tjatindi’s password illegally to process the payment.
Another Ministry official Ms Van Zyl did not process the payment
although, in her case, too, her details are reflected on the record.
Here, too, Haita used Van Zyl’s password illegally to process
the payment in item (e) (N$116 850) for ‘equipment’. The
payments under item (b) was made to CDC in August 2012. It was after
CDC had received the payment of N$196 000 that on 17 September 2012
the respondent paid N$95 000, by direct bank transfer from CDC
account, for the property.





[12] I am satisfied that the property
was paid for from the N$196 000 that had irregularity been paid to
CDC because no amounts from a source other than the Ministry were
paid into CDC’s account between the date that the N$196 000 was
paid into the CDC account by the Ministry and the date the N$95 000
was transferred from CDC’s account to pay for the property.
There is more. Two of the five transactions were signed by Mr Hoveka
who at all material times was an Acting Director of the Ministry when
the payments were processed. But as the Acting Director, Hoveka did
not work in the Ministry’s Procurement Department and could not
have lawfully authenticated invoices; and so, his signatures on the
payment vouchers were illegally placed thereon and, therefore,
irregular. Hoveka’s bank account received cash deposits to the
tune of N$200 200, some of which were made after payments were made
to CDC from the Ministry.





[13] In this regard, it has been said
that it is trite law that odd coincidences, if unexplained, may be
supporting evidence. See the recent case of S v Ochurub (CC 30/2010
[2015] NAHCMD 171 (5 May 2015). In the instant case, the respondent
does not give any explanation for these odd coincidences, that is,
the unlawful use of other officials’ passwords, the unlawful
authentication of the invoices by Hoveka, the cash deposits of large
amounts of money in Hoveka’s account and Hoveka’s denial
of contacts with the respondent. Hoveka’s contention that he
had no contact with the respondent cannot possibly be true. There
were as many as 503 telephone calls between Hoveka and the respondent
when the Ministry made payments to CDC. If their contact was
innocent, why would Hoveka deny such contact? The evidence of odd
coincidences in this case provide support for the evidence of
irregular and fraudulent payments made to CDC, considering the
illegal use of Tjatindi’s password and Van Zyl’s
password, as found previously, to process the payments, and Hoveka’s
unlawful authentication of the invoices.





[14] The respondent’s response
that as an outsider he did not know the operations and procedures of
the Ministry cannot assist the respondent. It takes his case nowhere.
Upon the true construction of s 61(1) of POCA, which I have set out
in para 5, above, the unlawful activities from which the proceeds
were born need not be exclusively the activities of the respondent. I
have found that Haita’s was an unlawful activity when he
illegally used other officials’ password with the sole purpose
of processing the irregular payments to CDC. Hoveka authorized and
signed for payments to CDC when he was aware and knew that no
services had been rendered by CDC to the Ministry and no equipment
has been delivered by CDC to the Ministry. No documentary proof of
the service and the delivery was placed before the court. Indeed, the
court asked the respondent to give one example of any store from
which he obtained the equipment that he says he delivered to the
Ministry. The respondent failed totally to give one single name. And
the respondent does not contend that he manufactured the ‘paver’
himself. Additionally, the respondent does not say in his papers what
type of training he provided and to whom, for the benefit of the
Ministry. All this amounts to fraud on the part of the respondent.
That is an unlawful activity.





[15] The aforegoing factual findings
point inevitably to the conclusion that the transaction for which CDC
was paid N$196 000 (item (b)) was fraudulent; and the obtaining of
the payment amounted to fraud. And the fraudulent act and the fraud
were made possible by the corruption of Haita and Hoveka, within the
meaning of s 43 of the Anti-Corruption Act (‘ACA’). As I
have shown previously, the property was purchased with the proceeds
of the fraud on the part of the respondent and corruption of the two
Ministry officials. These are unlawful activities, as I have said.
Thus, the respondent on his part contravened s 45 of ACA because he
used the proceeds of the fraud and the corruption of the Ministry
officials to purchase the property.





[15] Based on these reasons, I am
satisfied that the applicant has proved on a balance probabilities
that the property was purchased from the proceed of the unlawful
activities. Having so found, the application succeeds. Accordingly, I
have a duty under s 61(1) of POCA to make the forfeiture order;
whereupon I order as follows:





(a) The property which is presently
subject to a preservation of property order granted by this
Honourable Court under case number POCA 5/2014 on 16 May 2014, namely
the Nissan Hardbody with Engine Number KA……… and
Vin Number ADNJ……… (‘the property’),
be forfeited to the State in terms of section 61, read with section
64, of the Prevention of Organized Crime Act, Act 29 of 2004
(‘POCA’).





(b) That Sergeant Emilia Nambadi, in
whose control the property is in terms of the preservation of
property order, is authorized to:



(i) sell the property at a public
auction for a value not less than the current market value; and





(ii) pay the proceeds of the sale into
the Asset Recovery Account, Ministry of Justice – POCA,
Standard Bank Account Number 5……….., branch code
0………..





(c) That any person, other than the
respondent and Corporate Development Consortium (CDC), whose interest
in the properties concerned is affected by the forfeiture order, may
within 20 days after he or she has acquired knowledge of such order,
set the matter down for variation or rescission of this order by the
Court.





(d) This order must be published in the
Government Gazette as soon as practicable, after it is made.





(e) Prayers (a) to (c) shall not take
effect before the expiration of 30 days after the notice of this
order was published in the Government Gazette or before an
application in terms of section 65 of Act 29 of 2004 or an appeal has
been disposed of.





C Parker





Acting Judge





APPEARANCES





APPLICANT: K Kazondunge





Of Government Attorney, Windhoek





RESPONDENT: In person