Court name
High Court
Case number
POCA 1 of 2009
Case name
Prosecutor General v Lameck and Others
Media neutral citation
[2009] NAHC 74













CASE NO: POCA 1/2009


IN THE
HIGH COURT OF NAMIBIA, WINDHOEK


In the
matter between:





THE
PROSECUTOR-GENERAL APPLICANT


and


TECKLA
NANDJILA LAMECK 1
ST
DEFENDANT


JEROBEAM
KONGO MOKAXWA 2
nd
DEFENDANT


YANG
FAN 3
rd
DEFENDANT


NUCTECH
COMPANY LTD 4
th
DEFENDANT





FESTUS
LAMECK 1
st
RESPONDENT


TEKO
TRADING CC 2
nd
RESPONDENT


LANCE
HAUUANGA 3
rd
RESPONDENT


COMNON
PROPERTIES NUMBER EIGHT CC 4
th
RESPONDENT


VERONICA
PANDULENI MOKAXWA 5
th
RESPONDENT


ONGONYO
TRADING CC 6
th
RESPONDENT


STERN
& BARNARD ATTORNEYS 7
th
RESPONDENT


SMITH
TABATA BUCHANAN BOYES ATTORNEYS 8
th
RESPONDENT





CORAM:
DAMASEB, JP et FRANK AJ





HEARD:
24 July 2009


DELIVERED:
14 August 2009









JUDGMENT





JUDGEMENT
OF THIS COURT
: [1] This is the extended return day of a
”restraint order” issued by Damaseb JP on 6 July 2009 pursuant
to the provisions of the Prevention of Organised Crime Act, No 29 of
2004 (“POCA”). Some of the defendants and respondents
(hereinafter referred to as the defendants or the respondents) filed
answering papers in an attempt to have the order set aside. In these
answering papers certain issues were raised in limine. On the
original return day the applicant sought a postponement to reply to
the answering papers. As the in limine points were of such a
nature that it would dispose of the matter if upheld without the need
for the filing of further papers, the Court directed that these in
limine
points be dealt with without further delay. This judgment
deals with the issues raised in limine.








[2] For
the purpose of dealing with the in limine matters only the
founding papers of applicant are considered.1
The respondent’s/defendant’s points in limine are
premised on the basis that the restraint orders should not have been
given if regard is had to the facts evident from the founding papers.








[3] In
terms of sections 24 and 25 of POCA restraint orders can be made by a
Court on application by the Prosecutor General. Such orders
authorise the seizure of property in contemplation of criminal
charges or where a confiscation order has already issued. The
current order was made pursuant to these sections. For clarity sake
it should be mentioned that the person against whom the criminal
proceedings are to be commenced (or against whom a confiscation order
had been made) is referred to in POCA as the “defendant”.
In the present matter the persons referred to as respondents are
persons who do not face criminal proceedings but who , it is alleged
, received certain property or proceeds from the defendants. The
property in the hands of such respondents is susceptible of restraint
if it meets the definition of an ‘’affected gift’’. Sections
24 and 25 form part of Chapter 5 of POCA. Section 22 (1) of POCA
defines an ‘’affected gift’’ as ‘’any gift –(a) made by
a defendant at any time , if it was a gift-(i) of property received
by that defendant in connection with the commission of an offence or
related criminal activity carried out by him or her or any other
person; or (ii) of property which directly or indirectly represented
in that defendant’s hands property received by him or her in
connection with the commission of an offence or related criminal
activity...’’




[4] On the
contrary, section 51 (being part of Chapter 6 of POCA) deals with
preservation orders, i.e. the seizure of property shown to be an
“instrumentality of an offence referred to in schedule 1”
or the “proceeds of unlawful activities”.




[5]
Counsel for the respondents submitted before us that the order
granted by Damaseb JP against the respondents could not be granted
pursuant to sections 24 and 25, but that resort should have been had
to section 51. If this is correct the order granted against the
respondents falls to be set aside.




[6] A
restraint order contemplates a criminal conviction. Hence it can
only be made where a prosecution has been instituted or is imminent.
Such order must be rescinded if prosecution is not instituted within
a reasonable time2
and it in any event expires at the conclusion of the criminal
proceedings.3
If the defendant is acquitted the expiry of the restraint order is
final. If the defendant is convicted the court must consider a
confiscation order. The point is that restraint orders are linked to
criminal prosecutions. This is also clear from the heading to
Chapter 5 which refers to “Confiscation of Benefits of Crime”.






The scheme of POCA and the first in limine point:
can a restraint issue


against
respondents?




[7]
Chapter 6 – under the heading “Forfeiture of Property and
Related Matters”
- contains the provisions relating to
preservation and forfeiture orders. Section 51 does not contemplate a
criminal prosecution nor does it require a criminal conviction for
the purpose of a preservation order. It targets the use of the
property for unlawful purposes or property acquired with the proceeds
of unlawful activities. The focus is not so much on who committed
the mentioned offences or the unlawful activities, but on the manner
the property is used or has been acquired. Thus preservation orders
can apply where there has been no criminal prosecution or even where
a person has been acquitted.4
As correctly pointed out to us by counsel for applicant, Chapter 5
deals with the confiscation of the proceeds of unlawful activities
which the court must quantify upon conviction whereas Chapter 6 deals
with the forfeiture of specified property.






[8] With these distinctions in mind it is now necessary to look at
the provisions of sections 24 and 25 in more detail. In terms of
section 24 a restraint order may be made against a person who faces
or is about to face criminal charges (leaving aside the instance
where a confiscation order has already been made which can only be
done following a conviction). As already mentioned these persons are
referred to in POCA as defendants.




[9] In
terms of section 25 the restraint order may prohibit “any
person”
from dealing with “any property” to which
the order relates. The section further provides that no notice of an
application for a restraint order needs to be given “to any
other person”
and that such order can be granted in respect of
“realisable property” held by the person against whom the
restraint order is “being made”. Notice of restraint
orders must be given “to persons affected by the order”.
A restraint order expires “when the proceedings against the
defendant are concluded”
.







[10]
Section 25(2) (a) expressly authorises a restraint order in respect
of “realisable property”. Such property by definition
includes property not belonging to a defendant but property donated
by a defendant and falling within the specialised meaning of
affected gift”.





[11]
Section 25 uses the words “any person” because it is clear
from its referral to “any property” - read with the
definition of “realisable property” - that restraint
orders would not necessarily only affect defendants but could also
affect persons in possession of “realisable property” as
defined. That this is so is also evident from the provision that a
restraint order expires upon the conclusion of the criminal
proceedings “against the defendant”. The legislator
punctiliously distinguishes between “any person” and
“defendant” as it had to do given the effect of section
25.





[12] In
the result the point in limine taken on behalf of the
respondents that a restraint order pursuant to section 25 of POCA
could not have been granted against them has no merit and is
dismissed.






Was a case made out in the founding papers for the grant of an
order?





[13] We
now turn to consider whether applicant made out a case in the
founding papers for the order granted on an ex parte basis.
In terms of section 24(1)(a)(i) and (ii), the court had to be
satisfied that the defendants were to be charged with an offence and
“that there are reasonable grounds for believing that” a
confiscation order may ensue. The defendants/ respondents maintain
that the order was erroneously granted and that in terms of section
27(3) of POCA it should be set aside because on the case then made
out the essential jurisdictional facts were missing and that no
basis was laid in respect of the three offences alleged , being theft
, corruption and fraud.





Was a
prosecution imminent?





[14] As
far as the first requirement is concerned, i.e. imminent prosecution,
very little needs to be said. The applicant stated that this would
happen and in view of the publicity surrounding the matter it is
currently a notorious fact that the defendants have been charged. In
fact , the applicant’s expressed intention backed up by the
affidavit of Mr Nelius Becker setting out the intended charges,
indicated that charges were imminent and there can be no doubt that
this requirement was met by applicant.






Were there reasonable grounds for believing that a confiscation





[15] To
decide whether the allegations in the founding papers were such as to
have contained sufficient facts to establish “reasonable grounds
for believing that a confiscation order may be made”
, it is
necessary to deal in more detail with the allegations contained
therein.





Becker’s
Affidavit


[16] The
facts deposed to by Becker essentially amounted to the following.
During May 2008 the Government of Namibia contracted with fourth
defendant for the purchase of certain x-ray equipment for a total
purchase price of US$55,348,800.00. Of this amount US$12,828,800.00
was “to be used solely for the advance payment for the Seller to
start the production of the whole contract goods”
. The
contract expressly provides that this advance payment is to be made
by the Government of Namibia and that the balance of the purchase
price (US$42,520,000.00) will be funded by a soft loan from the
Chinese Government. This contract was signed between the Permanent
Secretary of Finance (Mr Carl Schlettwein) and third defendant on
behalf of fourth defendant as its Senior Overseas Marketing Manager,
Africa. On 12 December 2008 the fourth defendant issued an invoice
to the Ministry of Finance in respect of the advance payment. On 10
February 2009 fourth defendant and Teko Trading CC entered into an
agency and into a consultancy agreement. Both these agreements were
signed by first defendant on behalf of Teko Trading CC. Altogether
an amount of US$4,229,408.00 would be paid by fourth defendant to
Teko Trading CC pursuant to these two agreements. On 27 February
2009 the Ministry of Finance transferred the advance payment to
fourth defendant. Under cover of a letter dated 3 March 2009 and
signed by first defendant, Teko Trading CC informed fourth defendant
that it had performed its obligations flowing from its agreement with
the former. On the same day Teko Trading CC forwarded three invoices
to fourth defendant under signature of first defendant totalling
US$4,229,348.05. Between 11 and 12 March 2009 this amount less bank
fees of U$150 was transferred to second respondent’s bank account
and converted into the local currency. The total deposit amounted to
N$42,061,859.47.








[17] On 10
April 2009 a further four agreements were entered into between fourth
defendant and second respondent. The effect of those agreements are
that having regard to what was by then already received by second
respondent and what it was still to receive pursuant to the 10 April
2009 agreements, there would be paid an amount equal or very close
to the advance payment stipulated in the agreement between the
Government and fourth defendant, i.e. US$12,828,800. The new
agreements cast the duties of second respondent in similar terms to
those already mentioned. These, in essence, were the following:










‘’(a) To facilitate the
Namibian Ministry of Finance and other governmental authorities or
administrations to acquire the necessary licenses, permits and
approvals so as to well prepare for the punctual delivery of the
equipment;







(b) To assist in answering FAQs
[frequently asked questions] of fourth respondent’s X-Ray
equipment;







(c) To provide other assistance,
if necessary, to the fourth defendant before or in the duration of
the delivery of the equipment”.




[18] The
members of second respondent are first and second defendants. Third
defendant as a foreign national had applied to the Namibian
authorities for a work permit and was sponsored in this by second
respondent (first defendant signing the relevant letter) who intends
to employ him. Second respondent’s registered address is the home
address of third defendant. First, second and third defendants were
previously involved with a company known as Namibia Contract Haulage.
(They therefore have a business relationship and association which
predates the present transaction.) First defendant was a director of
this company whereas both second and third defendants were employees
of this company. Prior to the money mentioned above being
transferred into second respondent’s local account, the balance on
its account amounted to N$0, 80. The transfers during 11 and 12
March 2009 obviously changed this but the incoming funds were
withdrawn to such an extent that by 2 June 2009 the balance amounted
to a paltry N$7.39. In excess of N$33 million was paid to first,
second and third defendants; namely in excess of N$9 million and
N$16 million to first and third defendants respectively and N$8
million to second defendant.




[19] First
defendant was at all times a member of the Public Service Commission
of Namibia and had not received permission to do any other
remunerative work. This means she acted contrary to section 3(2) of
the Public Service Commission Act, No 2 of 1990 which states:







A member of the Commission
shall not without the consent of the President perform or engage
himself or herself to perform any remunerative work outside the
duties of his or her office”.




[20] As far as the
services to be rendered by second respondent are concerned, Becker
points out that the primary agreement provides for the Ministry of
Finance to obtain the necessary permits to import the equipment and
work permits for the seller’s personnel. He states that it is
absurd to suggest second respondent would be involved in this as
government can obtain licenses, permits and approvals itself and that
to pay about US$8.5 million for this makes no sense. As far as the
other two mentioned services are concerned, Becker questions their
need as the main agreement provides for a five year comprehensive
training package so that to pay for non-technical people (first and
second defendants) to answer FAQ’s is questionable and furthermore
the concept of “provide other assistances, if necessary”
is suspicious. Becker concludes that the consultancy and agency
agreements are sham documents created to facilitate the advance
payment and in that way to defraud the Ministry of Finance.





[21] Based
on the above facts the following charges are referred to in the
founding papers against the defendants, namely: fraud, theft and
offences in terms of sections 33 and 42(2) of the Anti-Corruption
Act, No 8 of 2003:














Section 33 states that:







A person commits an offence
who, directly or indirectly, corruptly solicits or accepts or agrees
to accept for the benefit of himself or herself or any other person
any gratification as-





  1. an inducement to do or to omit
    doing anything;



  2. a reward for having done or
    having omitted to do anything.








Section 34 states that:







A person commits an offence who,
directly or indirectly, corruptly offers, gives or agrees to give to
any person, whether for the benefit of that person or any other
person, any gratification as –








  1. an inducement to do or to omit
    doing anything;



  2. a reward for having done or
    having omitted to do anything.”






The
Law


[22]
Before dealing with the individual charges it is necessary to briefly
refer to the law when it comes to drawing inferences from facts and
the approach to hearsay facts contained in founding papers. The
first point to be made is that in terms of s18 of POCA proceedings
under sections 24 and 25 are regarded as civil proceedings. Whereas
it is correct that the inference drawn must be consistent with all
the proved facts, sight must not be lost of the fact that these being
civil proceedings it need not be the only one5
and in view of the test, i.e. reasonable grounds that an order “may”
be made, we take the view that the approach the Court should follow
when a restraint order is sought is the one developed to decide
whether a prima facie case has been made out. This test has
been formulated by the Full Bench of this Court as follows6:











“ ……in consideration of
the possible inferences that can be drawn from the papers of the
appellant in establishing a prima facie case, regard should be had to
what is stated by Denning LJ in Smithwick v The National Coal Board
[1950] 2 KB 335 at 351 - 2 where the following distinction was drawn
between inference and conjecture:







'As Lord MacMillan said in Jones
v Great Western Railway Co (1931) 144 LT 194 at 202: ''the dividing
line between conjecture and inference is very often a very difficult
one to draw'' but it is just the same as the line between some
evidence and no evidence. One often gets cases where the facts proved
in evidence - the primary facts - are such that the tribunal of fact
can legitimately draw from them an inference one way or the other,
or, equally legitimately, can refuse to draw any inference at all.
But that does not mean that when it does draw an inference it is
making a guess. It is only making a guess if it draws an inference
which cannot be legitimately be drawn: that is to say, if it is an
inference which no reasonable person could draw.







The court, however, recognises
that a litigant will be handicapped when facts are within the
exclusive knowledge of his opponent and that they hold, when that is
so, that less evidence will suffice to establish a prima facie case.'







Hoffmann and Zeffertt (op cit at
398); Gericke v Sack 1978 (1) SA 821 (A) at 827.







Insofar as inferences in general
are concerned, the position is succinctly set out in the Ocean
Accident and Guarantee Corp Limited case as follows –







'''. . . in finding facts or
making inferences in a civil case, it seems to me that one may, as
Wigmore conveys in his work on Evidence 3rd ed para 32, 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''.







I need hardly add that
''plausible'' is not here used in its bad sense of ''specious'', but
in the connotation which is conveyed by words such as acceptable,
credible, suitable. (The Oxford Dictionary and Webster's
International Dictionary.)'







Ocean Accident Guarantee Corp
Limited v Koch 1963 (4) SA 147 (A) at 159C - D.







The Ocean Accident case supra
deals with the position at the end of a case and after consideration
of all the evidence. Where one deals with a prima facie case, as at
present, the test is less stringent:







'Mr Hofmeyr also relied on the
statement on Cochran v Miller 1965 (1) SA 162 (D) at 163C that in an
application for arrest to found jurisdiction the test for a prima
facie case is whether there is evidence which, if believed, might
persuade a reasonable man to draw the inference that the wrong
complained of had been committed. That seems to me, with respect, to
be the same as a prima facie case in the absolution context in a
trial. In that context, to put it slightly differently from the
statement in Cochran's case, a prima facie case is established by
circumstance where the inference the plaintiff seeks to have drawn is
as ''more or less equally open'' on all the available evidence as the
inference favouring the defendant.'



Great River Shipping Inc v
Sunnyface Marine Ltd case supra at 75I - 76B.







Thus in proceedings such as the
present where a diversity of facts justify different inferences to be
drawn, some of which could establish the appellant's case, the court
should not pause to consider the value and persuasiveness of each and
every inference that can be drawn but should only confine its
attention to the fact or question whether one of the possible
inferences to be drawn is in favour of the plaintiff in order to
determine whether a prima facie case has been established or not.
Marine and Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A)
at 38G - H; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307
(T) at 310D.”










[23] That
said it also needs to be made clear that the court in considering
whether or not to grant an order under chapter 5. NDPP v
Rautenbach
2005 (4) SA 603 (SCA) at Para [27] it is stated that:







is not required to satisfy
itself that the defendant is probably guilty of an offence, and that
he or she has probably benefitted from the offence or from other
unlawful activity. What is required is only that it must appear to
the Court on reasonable grounds that there might be a conviction and
a confiscation order. While the Court, in order to make that
assessment must be apprised of at least the nature and tenor of the
available evidence, and cannot rely merely upon the applicant’s
opinion ...it is nevertheless not called upon to decide upon the
veracity of the evidence. It need ask only whether there is evidence
that might reasonably support a conviction and a consequent
confiscation order( even if all that evidence has not been placed
before it) and whether that evidence might reasonably be believed’’.




[24] In
terms of sec 91(3) of POCA the Court may have regard to hearsay
evidence presented to it provided it “would not render the
proceedings unfair”.
It is common cause that Becker relies on
hearsay evidence in advancing the case that the Ministry of Finance
would not have made the advance payment had it known that such
payment would be spent in the way it was or that the first defendant
engaged in remunerative work without requisite permission. Counsel
for the defendants / respondents criticised this evidence of Becker
where he does not disclose some of his sources. In the summary of
the facts we have sought to rely only on so much of the evidence of
Becker supported by documents - save for the reference to the
relationship between first, second, third defendants and second
respondent- and the intended employment contract between third
defendant and second respondent. It is not necessary to lay down
principles as to when hearsay evidence can or cannot be relied upon
in proceedings under POCA. Suffice it to say that the test is
whether such evidence, if accepted, renders the proceedings unfair:
Whether indeed an unfair result would occur will have to be decided
on a case by case basis.





[25] In
the present matter we find merit in the applicant’s counsel’s
submission that Becker’s affidavit is founded on “documentary
evidence consisting of contracts, official records, correspondence
and bank records which are not in dispute ‘’ and the ‘’statement
that evidence is available that the President has not given his
consent to the first defendant’s undertaking this activity’’.
In view of the substantial documentary evidence in support thereof
and the relative ease with which the hearsay not based on documentary
evidence can be rebutted - we are satisfied that acceptance of
hearsay will not result in the proceedings being unfair.






Prima facie case of fraud?





[26]
Becker relies on a fraud that was committed in relation to the
Ministry of Finance. He states this fraud was committed by fourth
defendant- aided and abetted by first, second and third defendants.
We find no basis for a finding of fraud based on the facts presented
to Court when the application was heard ex parte. Apart from stating
that third defendant signed the primary agreement there is no
evidence or a factual basis to suggest that he or any of the other
defendants made any unlawful representations to the Ministry or that
they were under some duty to disclose matters they did not. In fact,
although fourth defendant by necessary implication had to deal with
the Ministry through a representative in negotiating the agreement,
this representative is not mentioned nor is any wrongdoing laid in
front of his door. Furthermore, there is nothing to suggest first
and second defendants were involved with or even knew of these
negotiations. Whereas it has been stated with regard to
non-disclosures ”By imperceptible stages, non-disclosure in
commercial dealings passes from ‘keen business’ through ‘sharp
practise’ to ‘blatant dishonesty’,
7
there are no facts to suggest or infer a fraudulent
non-disclosure in the present matter. There is no duty on a seller
to disclose to a potential purchaser how the proceeds of the sale are
to be dealt with. If the purchaser accepts the purchase price that
is the end of the matter in general. As far as fourth defendant is
concerned, it offered the equipment based on a total price of over
US$55 million and the Ministry accepted it. The fact that they would
not initiate the transfer of the equipment prior to receipt of the
initial payment in excess of US$12 million is, without more, not of
any significance. The balance of the price was guaranteed by the
Chinese government and - with the upfront payment - they could make
payment to second respondent for whichever reason.




[27] True,
the primary agreement provides for the advance payment “to be
used solely … for the seller to start the production of the whole
contract goods”.
On behalf of applicant much was made of
this clause in the agreement - to substantiate the inference that a
fraud had been perpetrated upon the Ministry of Finance as an amount
in excess of N$4.2 million of the advance payment had flowed to
second respondent - and from it to first, second and third
respondents. This approach attaches too literal a meaning to the
agreement. Without the advance payment the contract would not be
proceeded with and fourth respondent would not be bound to deliver
(produce) any of the equipment. The advance payment initiated fourth
defendant’s obligations and the fourth defendant would not have any
other excuse for not performing its obligations. It must be borne
in mind that the rest of the purchase price was made available by
fourth defendant’s own (Chinese) government. There is no
suggestion that fourth respondent is not ready to perform its
obligations or has reneged on it. This being so the advance payment
has triggered “the production of the whole contract goods”.
The fact that some of the money making up the advance payment may
have been used to make the transfer to second respondent does not
alter this fact. The condition triggering the fourth defendant’s
obligations has been fulfilled and the primary agreement hence became
effective. As there is no suggestion that this is not so and that
the fourth defendant had reneged on its obligations flowing from the
agreement, the advance payment achieved the objective set out in the
agreement as was contemplated by the parties thereto and consequently
nothing untoward can be inferred in this regard. Whether the
application of the advance payment for a purpose other than the
commencement of the production of the contracted equipment amounts to
a breach of contract is an open question but hardly one attracting
the label of fraud in our criminal law. Besides, it is not clear from
the founding papers what special consideration actuated the insertion
of the clause which, if not complied with, would make the seller
guilty of fraudulent conduct vis a vis the Ministry of Finance in the
sense of the latter being put to its detriment in the criminal law
sense.








[28] It
thus follows that no evidence that may lead to a conviction of fraud
of fourth defendant has been disclosed and consequently also no
evidence of aiding and abetting fourth defendant to commit a fraud by
the other defendants.







Was there evidence of theft?





[29]
Becker submits that the facts presented may establish theft by the
defendants of the initial payment from the Ministry of Finance. Once
again, there is simply no basis for this. The money was paid
pursuant to the primary agreement to fourth defendant. Unless this
agreement is somehow tainted, and it has not been shown how it is,
theft cannot be said to have occurred. The Ministry paid over money
which in any event it had to pay over to the fourth defendant as part
of the agreement: no more and no less. Whether the advance payment
was paid when it should not have been does not advance the case for
theft.





[30] We
are satisfied that the founding papers disclose no evidence of theft
or fraud. But that is not the end of the matter. To grant the order
sought, it only needed to appear to the court on reasonable grounds
that there might be a conviction and confiscation order in respect of
one or more –not all- the offences alleged by the applicant.







Offences under the Anti-Corruption Act





[31] This leaves the two offences pursuant to the Anti-Corruption
Act, No 8 of


2003 for
consideration. In terms of sec. 33 of the Anti Corruption Act, a
person commits an offence where such person directly or indirectly
corruptly agrees to accept or accepts for his/her benefit any
gratification as a reward for having done anything. Pursuant to sec
42(2) a person commits an offence who corruptly accepts or agrees to
accept for his or her benefit or for the benefit of another any
gratification as a reward for giving assistance or using influence or
having done so in the execution of a contract with a public body. In
the context of the Anti-Corruption Act one must further bear in mind
the meaning of certain words as defined in this Act. One of the
meanings of “corruptly” is a contravention of any law
pertaining to any employment the relationship. “Public body
includes any Ministry.





In terms
of s32 of the Anti-Corruption Act “corruptly“ means:







... in contravention of or
against the spirit of any law, provision, rule, procedure, process,
system, policy, directive, order or any other term or condition
pertaining to –








  1. any employment relationship;



  2. any agreement, or



  3. the performance of any function
    in whatever capacity;”






[32] It
needs to said at the outset that the entire transaction (as between
the first, second and third defendants) was premised on Teko Trading
CC and its members (first and second defendant) influencing the
Namibian authorities with respect to the contract between the fourth
defendant and the Ministry of Finance. That much admits of no doubt.
In fact the agreement states so in stentorian terms. It also deserves
mention that the first defendant was aware –indeed was required by
law- not to engage in remunerative work unless she had the requisite
permission to do so. First, second and third defendants, being
business partners, must have considered first defendant’s role in
the transaction- not least the implications arising from first
defendant’s obligations under the law in seeking approval given her
vintage position as a public service commissioner. It is against that
backdrop that Becker alleges against the first defendant corruptly
accepting gratification contrary to section 33 of the Anti-Corruption
Act. He also specifically alleges corrupt acceptance of
gratification for giving assistance in the promotion , execution or
procuring of a contract with a public body contrary to section 42(2)
of the Anti Corruption Act , committed by the first , second and
third defendants, aided and abetted by the fourth defendant.





[33] The
way the payment in respect of the primary agreement was structured,
coupled with the subsequent agency / consultancy agreements, makes it
highly unlikely that fourth respondent did not know that the advance
payment would not be for its benefit. It is equally highly unlikely
that an agreement to pay such a substantial amount of money would
have been entered into subsequent to the primary agreement being
finalised. Further, the amount of the advance payment ties up so
neatly with the amounts appearing in the subsequent agreements to be
a mere coincidence. The fourth respondent covered itself in respect
of this expense (advance payment) by negotiating for the Government
of Namibia to carry this expense and to do so upfront. Third
respondent, as the representative of the fourth respondent, must have
been aware of this position. He signed the agreement and clearly
must have made some arrangements with first and second defendants in
view of what happened to the money paid over to second respondent.
To sum up, fourth respondent must have known from the outset that it
would have to make provision for an amount (described as an advance
payment) in its negotiations for a purchase price so as to enable it
to pay to its “facilitators” in Namibia. This it did by
getting the Namibian government to make the advance payment.




[34] It is
further a plausible inference to draw that fourth respondent would
not pay over an amount as substantial as the advance payment out of
pure generosity. After all, third defendant was its employee.
Furthermore, in view of the agreements between fourth defendant and
second respondent, it is clear that fourth respondent knew its
“facilitator” was a Namibian entity. It is also not
likely- taking the primary contract and the advance payment into
consideration - that it would not have any knowledge as to the
persona behind second respondent and especially the high profile
position of first defendant and the legal obligation that applied to
her under the Public Service Commission Act.




[35]
Further, on a prima facie basis the actions of fourth
respondent’s representative (third defendant) can be ascribed to
it. If regard is had to the provisions of sections 33 and 42(2) of
Act 8 of 2003, there exist reasonable grounds to believe that a
confiscation order may be made against first defendant: She contrary
to the Public Service Commission Act performed remunerative work. As
per definition this activity was corruptly done and she did so for
the work done as stipulated in the consultancy or agency
agreement(s). The tasks stipulated in the consultancy or agency
agreements clearly contemplates gratification for the giving of
assistance and may even include using influence to “facilitate
the Namibian Ministry of Finance and other governmental authorities”

in respect of matters such as licenses, permits and official
approvals. It was clearly contemplated that there would be
assistance with the execution of the primary contract.





[36]
Whereas a case has been made out against first defendant, the
question that arises is: to what extent does this affect the other
defendants?


If one
has regard to the manner in which second respondent was utilised to
channel the initial payment, it is justifiable and reasonable to draw
the inference that it was a mere conduit utilised for this exact
purpose. Given the fact that second defendant was the co-member (in
the second respondent) with first defendant, he must have known that
first defendant would share in the initial payment in consideration
for remunerative work prima facie performed contrary to law.
He also knew what that the payment was intended for, namely to assist
with the execution of the contract and to use the influence of first
defendant to smooth over potential problems in the execution of the
contract. In these circumstances, the founding papers also pass
muster insofar as the second defendant is concerned.




[37] It is
justifiable and reasonable to infer that third defendant knew at the
time the agreement was concluded that the initial payment would not
go to the seller (fourth defendant). After all he was the fourth
defendant (seller’s) African representative and signed the
agreement on its behalf. He received the lion’s share of the
proceeds transferred to Namibia which he must have received in terms
of some agreement with at least first and second defendants. It is
also highly unlikely that third defendant was in the dark about the
fact that second respondent would be used as a conduit for the
channelling of the initial payment to him and the first and second
defendants. He is closely connected to second respondent in that it
is his intended employer which uses his house as its registered
address. He was not abroad but in Namibia and must also have been
aware of first defendant’s position as a Public Service
Commissioner. In view of how the proceeds of second respondent were
shared, it is reasonable to infer that he was a party to this.





[38] The
relevant facts and inferences that can be drawn in respect of fourth
respondent have been set out above and as already stated it must have
known that second respondent would be its ”facilitator “ with the
government of Namibia for a considerable remuneration and relying on
the vintage position of first defendant within the structures of the
public service. Its Africa’s representative (third defendant) was
key in this process of using second respondent as facilitator. In the
circumstances, a sufficient case was made out against it.





[39] In
our view, there are more than reasonable grounds for believing that
first, second, third and fourth defendant will be found guilty of the
offences under the Anti Corruption Act alleged by Becker and Becker
amply points to the sources for the evidence that will be relied upon
in support of those allegations.




[40] It
therefore follows that the second point in limine based on
whether the order should have been granted on the material set out in
the founding papers of applicant also falls to be dismissed.




[41]
Counsel for the applicant submitted that considering that the present
proceedings are provisional and interim in nature costs should be in
the cause to be dealt with by the trial court. We agree.







[42] The
points in limine taken on behalf of the first, second and
third defendants and first to sixth respondents are dismissed. Costs
shall be in the cause.




[43] The
applicant is hereby ordered to file replying affidavits (if any)
within seven days of this order. The Rule Nisi is extended to
14 September 2009 unless the parties obtain an earlier date for the
hearing of the remainder of the issues raised in the answering
papers.

















___________________ ____________________


DAMASEB,
JP
FRANK, AJ













ON BEHALF OF THE APPLICANT: Adv G Bendlender, SC


Assisted
by: Adv D Small





Instructed
by: Prosecutor-General





ON BEHALF
OF 1ST, 2ND, AND 3RD DEFENDANTS: Adv
J Gauntlett, SC


Assisted
by: Adv R Heathcote





Instructed
by: Sisa Namandje & Co





ON BEHALF
OF 4TH DEFENDANT: Adv L Botes





Instructed
by: Stern & Barnard





ON BEHALF
OF 1ST, 2ND, 3RD, 4TH,
5TH & 6TH RESPONDENTS:


Adv
J Gauntlett, SC


Assisted
by: Adv R Heathcote






Instructed by: Sisa Namandje & Co



1



Stipp and Another v
Shade Centre and Others 2007 (2) NR 627 (SC) at 635-637







2



POCA, s24(2)







3



POCA, s25(6)







4



See in this regard the
reasoning based on similar provisions in South Africa in the case of
Prophet v NDPP 2007 (6) SA 169 (CC)







5



Govan v Skidmore
1952(1) SA 732 (N) at 734







6



Bourgwells Ltd v
Shepalolov and Others 1999 NR 410 (HC) at 418 E – 419 F







7



Milton: SA Criminal
Law and Procedure: Vol II p 713 fn 118