Case Title:

The Prosecutor-General                                    Applicant

and

Jose Domingos De Piedade Oliveira       First Respondent

Continental Infrastructure

Development (Pty) Ltd                      Second Respondent

Case No:

HC-MD-CIV-MOT-POCA-2019/00420

Division of Court:

Main Division

Heard on:

02 February 2023

Heard before:

Honourable  Mr Justice Usiku

Delivered on:

23 February 2023

Neutral citation:   The Prosecutor-General v Oliveira (HC-MD-CIV-MOT-POCA-2019/00420) [2023] NAHCMD 72 (23 February 2023)

Order:

1. The respondents are not entitled to:

1. receive the notice of the application for a forfeiture order or,
2. participate in the proceedings concerning the application for a forfeiture order.

2.        The properties which are presently subject to a preservation of property order granted by this Honourable Court under the above case number on 30 March 2022, namely:

(a)      the positive balance on the Nedbank Namibia Investment account number 12991085155 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto;

(b)      in as far as the redeemed amount of Mr Oliveira’s Nedbank Investment account was already paid out to Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, the positive balance on Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto; and

(c)      a white Toyota Hilux double cab with Vehicle Identification Number AHTHA3CD503427420 and engine number 1GD0577035 registered in the name of Continental Infrastructure Developers (Pty) Ltd, herein collectively referred to as “the properties”,

be forfeited to the State in terms of section 61 of the Prevention of Organised Crime Act, 29 of 2004 (“the Act”).

3.        The properties are to remain under the control and supervision of Warrant Officer Leo Kasita (“W/O Kasita”) of the Commercial Crime Investigation Unit: Anti-Money Laundering & Combating of Financing and Terrorism: Asset Recovery Subdivision in Windhoek, in whose control the properties are under, in terms of the preservation order, and in W/O Kasita’s absence, Inspector Johan Nico Green (“Inspector Green”) or any other authorised member of Commercial Crime Investigation Unit: Anti-Money Laundering & Combating of Financing and Terrorism: Asset Recovery Subdivision, and, is directed to:

(a)      pay the positive balance on the Nedbank Namibia Investment account number 12991085155 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto; in as far as the redeemed amount of Mr Oliveira’s Nedbank Investment account was already paid out to Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, the positive balance on Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto, into the Asset Recovery Account:

Ministry of Justice –POCA

Standard Bank account number 589245309

Branch Code: 08237200; and,

(b)      sell the white Toyota Hilux double cab with Vehicle Identification Number AHTHA3CD503427420 and engine number 1GD0577035 registered in the name of Continental Infrastructure Developers (Pty) Ltd by way of public auction for an amount not less than the market value. The proceeds of such sale shall be deposited into the Asset Recovery Account.

4.        Any person, whose interest concerned is affected by the forfeiture order, may within 15 days after he or she has acquired knowledge of such order, set the matter down for variation or rescission by the Court.

5.        This order must be published in the Government Gazette as soon as practicable after it is made.

6.        Prayers 2 to 3 will not take effect before 30 days after the notice of this order was published in the Government Gazette or before an application in terms of section 65 of the Act or an appeal has been disposed of.

7.        The first and second respondents are ordered to pay, jointly and severally, the one paying the other to be absolved, the costs of the applicant occasioned by the application for the forfeiture order, such costs are to include costs of one instructing and one instructed counsel.

8.       The matter is removed from the roll and is regarded finalised.

Reasons for order:

USIKU J:

Introduction

[1]      In this matter, the court is called upon to determine whether or not the respondents are entitled to:

(a)        receive from the applicant, a notice of application for a forfeiture order, in terms of s 59(2) of the Prevention of Organised Crime Act 29 of 2004 (“the Act”); or;

(b)        participate in the proceedings concerning the applicant’s application for a forfeiture order.

[2]      Should the court determine that the respondents are entitled to receive the aforesaid notice and to participate in the proceedings, the court shall direct that the appropriate notice be given and shall make an appropriate order to regulate the further participation of the respondents in the proceedings. However, should the court determine that the respondents are not entitled to receive the aforesaid notice and are, therefore, not entitled to participate in the forfeiture proceedings, the court shall proceed to consider the merits of the applicant’s forfeiture application and make its decision accordingly.

Background

[3]      On 28 October 2019, this court granted on urgent basis, a provisional preservation of property order with a rule nisi, in terms of s 91(4) of the Act. The rule nisi was ordered returnable on 6 December 2019.

[4]      On 13 November 2019, the respondents filed a notice to oppose the making of the provisional preservation of property order final and anticipated the return date in terms of rule 72(7) of the Rule of Court.

[5]      The aforesaid notice to oppose bears the following heading: ‘notice of intention to oppose the making of forfeiture order or application for the exclusion of property from a preservation of property order’. The notice makes reference to s 52(3) of the Act and Regulation 4(6). However, the deponent to the accompanying affidavit states that the respondents oppose the provisional preservation order granted on 28 October 2019 and seek an order discharging or setting aside that provisional order.

[6]      The anticipation notice was set down for hearing on 29 November 2019 and on the same day, this court, after hearing the parties, discharged the rule nisi.

[7]      The applicant appealed to the Supreme Court, against the order that discharged the rule nisi. On 29 November 2021, the Supreme Court set aside the order of this court, extended the rule nisi and postponed the application for a preservation of property order to 9 February 2022, for case management.

[8]      For the sake of clarity, the Supreme Court order reads as follows:

           ‘1. The appeal succeeds.

2. The order of the High Court discharging the rule nisi is set aside and an order dismissing the exception raised by the respondents (applicants in the court a quo) is substituted therefor.

3. The rule nisi is extended and returnable on 9 February 2022 at 15:15.

4. The application for a preservation of property order is postponed to 9 February 2022 at 15:15 for case management.

5. The respondents are to pay the appellant’s costs both in the High Court and in this court jointly and severally the one paying the other to be absolved. Such costs to include the costs of two legal practitioners where engaged.’

[9]      On 30 March 2022, this court confirmed the rule nisi and the provisional preservation of the property order was made a final preservation of property order in terms of s 51 of the Act.

[10]    On 8 June 2022, the preservation of property order together with the preservation application, were duly served on the respondents. The notice of the making of the preservation of property order was published in the Gazette on 14 April 2022.

[11]    It is common knowledge that the respondents did not give written notice of their intention to oppose the making of a forfeiture order and have not applied for an order excluding their interest in the property concerned from the operation of the preservation of property order, within 21 days after the service of the notice.

[12]    On 12 August 2022, the applicant filed her application for the making of a forfeiture order in terms of s 59 of the Act. The forfeiture application was set down on the unopposed motion court roll for 9 September 2022.

[13]    On 7 September 2022, the respondents filed a notice of intention to oppose in terms of s 52 of the Act.

[14]    On 9 September 2022, the matter was removed from the roll on account that it was an opposed motion and was subsequently assigned to a managing judge.

[15]    On 9 November 2022, this court, after noting that the applicant has filed an application for a forfeiture order and contends that the respondents are not entitled to participate in the forfeiture proceedings, in terms of s 52(6) of the Act, directed the parties to file respective heads of argument and so that it hears arguments of the parties before making its decision. The parties have now done so.

The respondents’ position

[16]    The respondents argue that they have filed a notice in terms of s 52(3) of the Act, on 13 November 2019, indicating their intention to oppose the forfeiture application. Further, the respondents contend that they have filed an affidavit contemplated under s 52(5) when they filed their answering affidavit on 13 November 2019. It is further the contention of the respondents that the use of the word “must” in s 52(4) of the Act cannot be construed to mean that the notice cannot be delivered before the service of the preservation order.

[17]    The respondents therefore submit that the applicant was obliged to serve the application for a forfeiture order on them as required by s 59(2) of the Act and that they are entitled to participate in the forfeiture proceedings.

The applicant’s position

[18]    The applicant argues that, if the respondents wished to participate in the forfeiture proceedings, they were required to give notice of their intention to do so, in terms of s 52(3) of the Act. Since the service of the preservation order, no notice and an accompanying affidavit were delivered as is required by s 52(3) and (5) of the Act, within the time period prescribed by s 52(4) of the Act, or at all.

[19]    The applicant therefore submits that the respondents are not entitled in terms of s 52(6) of the Act to receive notice of an application for a forfeiture order nor are they entitled to participate in proceedings concerning an application for a forfeiture order.

Analysis

[20]    Section 52 of the Act provides as follows:

          ‘Notice of preservation of property order

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

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

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

(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.’

[21]    Section 59 of the Act reads as follows:

          ‘Application for forfeiture order

59.       (1)        If a preservation of property order is in force the Prosecutor-General may apply to the High Court for an order forfeiting to the State all or any of the property that is subject to a preservation of property order.

(2)        The Prosecutor-General must, in the prescribed manner, give 14 days notice of an application under subsection (1) to every person who gave notice in terms of section 52(3).

(3)        A notice under subsection (2) must be delivered at the address indicated by the relevant person in terms of section 52(5).

(4)        Any person who gave notice in terms of section 52(3) may -

(a)        oppose the making of the order; or

(b)        apply for an order -

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

or

(ii)        varying the operation of the order in respect of that property.

(5)        When application under subsection (1) is made the High Court may, on the application of any of the parties, direct that oral or other evidence be heard or presented on any issue that the court may direct, if the court is satisfied that a dispute of fact concerning that issue exists that cannot be determined without the aid of oral or other evidence.’

[22]    Section 60 of the Act provides as follows:

          ‘Failure to give notice

60.       (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).’

[23]    In the present matter, it is common cause that the respondents were served with the notice of the preservation order on 8 June 2022. It is also not in dispute that the respondents have not, within 21 days after the date on which the notice was served:

(a)      given written notice of their intention to oppose the making of a forfeiture order;

(b)      applied in writing for an order excluding their interest in the property concerned, from the operation of the preservation of property order; or

(c)      filed the affidavit contemplated under s 52(5).

[24]    It is also not in dispute that the respondents have not filed an application for condonation contemplated under s 60 of the Act.

[25]    Having failed to perform any of the aforegoing activities, it appears to me that the respondents are in terms of s 52(6), not entitled to:

(a)      receive notice of the application for a forfeiture order; or;

(b)      participate in the proceedings concerning the application for a forfeiture order.

[26]    I am of the opinion that there is no merit in the contention advanced by the respondents to the effect that they have filed a notice of intention to oppose the making of a forfeiture order, on 13 November 2019. In the first instance, the only order which was granted in favour of the applicant at that time was a provisional preservation of property order, with a rule nisi, in terms of s 91(4) of the Act. The provisional preservation of property order, called upon the respondents, among other things, to show cause why the provisional order should not be made final.

[27]    Indeed, the substance of the notice and the accompanying affidavit filed on 13 November 2019, was that, the respondents opposed the making of the provisional preservation of property order final. The relief sought by the respondents in their papers, was for an order discharging or setting aside the rule nisi granted on 28 October 2018.

[28]    In any event, the respondents could not have properly delivered a notice contemplated under s 52(3) of the Act, before the making and service of the preservation order, because the notice referred to under s 52(3) is only possible where there is a preservation of property order in existence. In other words, it will be illogical for a party to give notice of intention to oppose a making of a forfeiture order, when there is no property that is subject to a property preservation order.

[29]    I am therefore of the opinion that the notice and the affidavit filed by the respondents on 13 November 2019 were considered and decided upon for the purposes of rule nisi proceedings and such proceedings were finalized upon the delivery of the Supreme Court order of 29 November 2021.

[30]    I therefore come to the conclusion that the applicant is correct in her submission that the respondent are not entitled to:

(a)      receive the notice of the application for a forfeiture order, or,

(b)      participate in proceedings concerning the application for a forfeiture order.

[31]    Having made the aforegoing finding, I am now turn to the merits of the applicant’s application for a forfeiture order.

[32]    In the papers filed in support of the application for forfeiture order, the applicant states that she applies for a forfeiture of property order on the grounds that the properties concerned are proceeds of unlawful activities, namely:

(a)      fraud,

(b)      corruption; and,

(c)      money laundering offences.

[33]    The applicant furnished evidence in support of her claim on the above assertions, that the respondents fraudulently and corruptly received USD450 000 and used part of that money to purchase the Toyota concerned.

[34]    In summary, I am satisfied that on the evidence put forth, the applicant is entitled to the order that she seeks. I shall therefore grant the forfeiture order in respect of the properties concerned, on the basis that the properties are the proceeds of unlawful activities.

[35]    Insofar as the issue of costs is concerned, I am of the view that the general rule that costs follow the event, must find application in this matter.

[36]    In the result, I make the following order:

1. The respondents are not entitled to:

1. receive the notice of the application for a forfeiture order or,
2. participate in the proceedings concerning the application for a forfeiture order.

2.        The properties which are presently subject to a preservation of property order granted by this Honourable Court under the above case number on 30 March 2022, namely:

(a)      the positive balance on the Nedbank Namibia Investment account number 12991085155 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto;

(b)      in as far as the redeemed amount of Mr Oliveira’s Nedbank Investment account was already paid out to Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, the positive balance on Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto; and

(c)      a white Toyota Hilux double cab with Vehicle Identification Number AHTHA3CD503427420 and engine number 1GD0577035 registered in the name of Continental Infrastructure Developers (Pty) Ltd, herein collectively referred to as “the properties”,

be forfeited to the State in terms of section 61 of the Prevention of Organised Crime Act, 29 of 2004 (“the Act”).

3.        The properties are to remain under the control and supervision of Warrant Officer Leo Kasita (“W/O Kasita”) of the Commercial Crime Investigation Unit: Anti-Money Laundering & Combating of Financing and Terrorism: Asset Recovery Subdivision in Windhoek, in whose control the properties are under in terms of the preservation order, and in W/O Kasita’s absence, Inspector Johan Nico Green (“Inspector Green”) or any other authorised member of Commercial Crime Investigation Unit: Anti-Money Laundering & Combating of Financing and Terrorism: Asset Recovery Subdivision, and is directed to:

(a)      pay the positive balance on the Nedbank Namibia Investment account number 12991085155 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto; in as far as the redeemed amount of Mr Oliveira’s Nedbank Investment account was already paid out to Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, the positive balance on Nedbank Cheque account number 11000467768 held in the name of Jose Domingos Tande De Piedade Oliveira, including any interest accrued thereto, into the Asset Recovery Account:

Ministry of Justice –POCA

Standard Bank account number 589245309

Branch Code: 08237200; and

(b)      sell the white Toyota Hilux double cab with Vehicle Identification Number AHTHA3CD503427420 and engine number 1GD0577035 registered in the name of Continental Infrastructure Developers (Pty) Ltd by way of public auction for an amount not less than the market value. The proceeds of such sale shall be deposited into the Asset Recovery Account.

4.        Any person, whose interest concerned is affected by the forfeiture order, may within 15 days after he or she has acquired knowledge of such order, set the matter down for variation or rescission by the Court.

5.        This order must be published in the Government Gazette as soon as practicable after it is made.

6.        Prayers 2 to 3 will not take effect before 30 days after the notice of this order was published in the Government Gazette or before an application in terms of section 65 of the Act or an appeal has been disposed of.

7.        The first and second respondents are ordered to pay, jointly and severally, the one paying the other to be absolved, the costs of the applicant occasioned by the application for the forfeiture order, such costs are to include costs of one instructing and one instructed counsel.

8.        The matter is removed from the roll and is regarded finalised.

Judge’s signature

Note to the parties:

B Usiku

Judge

Not applicable

Counsel:

Applicant:

Respondent:

L Angula

Of Office of the Prosecutor-General, Windhoek

N Tjombe

Of Tjombe–Elago Inc., Windhoek