Court name
High Court
Case number
POCA 2 of 2009
Title

Prosecutor General v Situmbeko and Others (POCA 2 of 2009) [2010] NAHC 84 (07 September 2010);

Media neutral citation
[2010] NAHC 84


















CASE NO.:
POCA 2/2
009


IN
THE HIGH COURT OF NAMIBIA


In
the matter between:






THE
PROSECUTOR GENERAL APPLICANT






and






NALISA
FREDRICKS SITUMBEKO

FIRST DEFENDANT


SCRATCH
A MILLION ENTERPRISE CC
SECOND
DEFENDANT


MACHADO
ANDRE PINTO THIRD DEFENDANT


KENEILWE
LANGA FOURTH DEFENDANT






FLORENCE
SITUMBEKO RESPONDENT






IN
RE AN APPLICATION IN TERMS OF SECTION 25 OF THE PREVENTION OF
ORGANISED CRIME ACT, NO.29 OF 2004 (“The Act”)


CORAM:
TOMMASI J


Heard
on: 22 & 25 February 2010; 6 May 2010; 16-18 August 2010;


01
& 6 September 2010


Delivered
on: 07 September 2010











JUDGMENT



TOMMASI
J:
[1] This is an application for the granting of a
restraint order in terms of section 25 of the Prevention of
Orgainised Crime Act, 2008 (Act 10 of 2008). The application was
brought on an ex parte application and a rule nisi was
issued calling upon the Defendants and the Respondent to show cause.
if any, on 22 January 2010, why a final restraint order should not be
granted.








[2] On 22 January
2010 the rule nisi was extended to 22 February 2010, allowing
the Defendants and the Respondent additional time to file Answering
Affidavits as well as affording the Applicant time to reply thereto.








[3] On the
extended date the Defendants and the Respondent applied for
condonation for non-compliance for the late filing of the answering
affidavits and for the court to grant leave for the 3rd
Defendant to lead oral evidence. The Applicant brought a similar
application for the late filing of the replying affidavit. The
affidavits filed in support of these applications have shown good
cause and condonation was therefore granted.








[4] Counsel for
the Applicant, Mr Nduna, informed the court that the applicant will
not proceed against 4th Defendant and the rule nisi
against 4th Defendant was discharged.








[5] The 3rd
Defendant represented by Mr Narib, brought an application for oral
evidence to be led in respect of obtaining supporting documentation
for 3rd Defendant. The application to lead oral evidence
became obsolete as the point in dispute was conceded by the
Applicant.








[6] The
Defendant’s and Respondent in their heads of argument indicated
that they will bring an application to strike certain paragraphs from
the Applicant’s replying affidavit as it introduced new facts
in the replying affidavit. Mr Narib made verbal submission that the
Replying Affidavit of the Applicant was replete with new matter
alternatively that a dispute of fact arose and that the Defendants be
allowed to lead file further affidavits/lead oral evidence. The
Court dismissed the oral application to strike. No application as
envisaged by the Rules of this Court was brought by the Defendants.
The Court however is mindful that the Applicant who secured the
provisional order is not better positioned on this extended return
date insofar as the facts that were placed before the court when the
provisional order was obtained.








[7] The matter was
referred for oral evidence to be led in respect of the dispute that
arose on a cardinal issue i.e the existence of a third invoice book
of the 2nd Defendant. The rule nisi was for this
purpose extended to 6 May 2010.








[8] On 6 May 2010
the Applicant applied for the rule to be further extended as the
investigating officer was hospitalized and not in a position to
testify in response to oral evidence to be led by the Defendants and
the Respondent. The Defendants and Respondent opposed this
application as they were having difficulty securing the attendance of
the witnesses. This Court granted an extension of the rule nisi
and ordered that that further affidavits be filed by both parties to
prevent a further delay in the finalization of the application.








[9] The further
affidavits were subsequently filed and the matter fully argued before
this court on 16 and 17 August 2010.








[10] The Court,
having granted a provisional restraint order on an ex parte
Application, heard on 22 December 2009, is now called upon to
reconsider its position having the benefit of having heard the other
side.








APPLICANTS CASE
ON THE FOUNDING PAPERS



[11] The founding
papers filed by the Applicant consisted of the founding affidavit of
the Applicant supported by the affidavit of the investigating
officer, the late Detective Sergeant (D/Sgt) Florence Muzani (the
court was informed that she had passed away) and annexures thereto.








[12] The facts
placed before the Court in the founding papers can be summarized as
follows: the 1st Defendant, married out of community of
property to the Respondent, registered 2nd Defendant
during March 2009. The supporting documentation reflects that 1st
Defendant was the sole member of 2nd Defendant. The
principle business of the 2nd Defendant was to sell
scratch cards to the general public and to business/vendors. The
idea was to operate a benevolent lottery.













[13] On or about
24 August 2009 the 1st Defendant, on behalf of 2nd
Defendant entered into a merchant agreement with Standard Bank
Namibia in terms whereof the 2nd Defendant was given a
Point of Sale Terminal. The salient terms of this agreement
obligated the 2nd Defendant to always obtain the signature
of the user of the card on the merchant receipt/voucher, printed by
the Point of Sale Terminal, and to ensure that the signature that
appears on the back of the card is the same as the person singing the
merchant receipt.








[14] Fifty two
(52) visa/credit card/debit card transactions dated from the 17
October 2009 to 7 November 2009 were done on the terminal. All of
these transactions involved the transfer of funds from foreign
accounts holders and the cards or card numbers were issued by foreign
banks. A total amount of N$736 109.50 was deposited into the account
of 2nd Defendant in this manner.








[15] Confirmation
was received by Standard Bank that at least transactions totaling
N$544 000.00 were fraudulent transactions and some of the
declarations made by the foreign card holders were attached. The
card holders declared that their accounts were used without their
authorization or consent. These transactions took place within
minutes of each other and the merchant receipts reflected that
sometimes one person’s signature appeared on two or three
merchant receipts whilst different card or card numbers were printed
thereon. The signatures on the merchant receipts also differed from
the signatures appearing on the declarations made by the foreign card
holders.








[16] It was
submitted by the applicant in its founding papers that the 3rd
Defendant on 23 October 2009 used a foreign card at the Point of Sale
Terminal of the 2nd Defendant to transfer funds in the sum
of N$2000.00. On 2 November 2009, he was given a cheque in the sum
of N$250 000.00 drawn on the account of 2nd Defendant and
signed by 1st and 4th Defendant on behalf of
the 2nd Defendant. A promotional cheque was found in the
possession of 2nd Defendant deposited the cheque into his
account.








[17] On 7 November
2009 3rd Defendant wanted to withdraw N$80 000.00 from
this account at First National Bank. The withdrawal of this amount
was questioned and the Police were called to question 3rd
Defendant. The explanation given by the 3rd Defendant was
that the cheque belonged to someone known as “Kaka”. A
cellphone was found on 3rd Defendant’s person and
seized. The Cell phone messages revealed that he was receiving and
sending messages to someone regarding the withdrawal. The identity
of this person was not revealed by the Applicant. It further
appeared that 3rd Defendant was concealing the fact that
he had the cell phone in his possession.








[18] 3rd
Defendant was not arrested at that time but this prompted an
investigation that revealed that 2nd Defendant was
operating a lottery without a license or authorization from the
Ministry of Environment and Tourism. The 1st Defendant,
on behalf of 2nd Defendant approached the Ministry of
Environment and Tourism to obtain permission to operate a benevolent
Lottery. 1st Defendant was informed that the regulations
of the Lottery Act, 2002 (Act 15 of 2002) were not yet in place. The
failure of the 1st and 2nd Defendant to obtain
authority to operate a lottery was, according to the Applicant, in
contravention of the Lottery Act. It was submitted that the
Defendants may be convicted of conducting a benevolent lottery
without the authorization in contravention of the Lotteries Act, 2002
(Act 15 of 2002). These charges could only be applicable to 1st,
2nd and 4th defendants. It was subsequently
argued by the Respondents, that this Act has not yet been
promulgated. At the time, the Court, given the urgency of the matter,
accepted the submission of the Applicant that the Act was in force.








[19] Standard Bank
and First National Bank suspected that the cheque of N$250 000.00,
deposited into the account of 3rd Defendant and drawn on
the account of 2nd Defendant was a fraudulent cheque.








[20] This resulted
in the arrest of 1st Defendant on 12 November 2009. On
the same day a search was conducted and certain items were seized
from the premises of the 2nd Defendant with his consent.








[21] 3rd
Defendant made a statement in support of the bail application of the
1st Defendant and same was attached or annexed. In the
statement 3rd Defendant indicated that he bought tickets
to “try his luck of winning”. He won the N$250
000.00 in a batch of scratch card that he purchased for N$2000.00.
He indicated that he wanted to buy solar panels to resell same in
Angola. This contradicted his earlier explanation.








[22] Numerous cash
cheques and withdrawals were made from the account of 2nd
Defendant where the proceeds of the funds obtained from the foreign
credit cards holders were paid into. On 16 December 2009 1st
Defendant made a withdrawal of N$100 000.00 reducing the credit
balance on the 2nd Defendant’s account to N$385
239.96.








[23] The 3rd
Defendant was arrested on 21 December 2009 and 4th
Defendant was to be arrested within four weeks.








[24] The applicant
submitted that the parties acted in concert by using foreign credit
cards at the Point of Sale Terminal, pretending to sell scratch cards
whereas in fact they were merely using the Point of Sale Terminal to
use the credit cards of foreign card holders without their
authorization. 3rd Defendant was paid an amount of N$250
000.00 to clear the funds from the 2nd Defendant’s
account under the pretext that it was monies that he had won in the
normal course of business of the 2nd Defendant. 4th
Defendant co-signed the cheque and that signaled his involvement.








[25] Based on
these facts the Applicant have charged and submitted that she may
still charged the Defendants with multiple offences relating to; the
contravention of the Lotteries Act, 2002 (Act 15 of 2002);
contravention the Prevention of Organized Crime Act, 2004 (Act 29 of
2004); fraud and theft.








[26] The
withdrawal of large amounts from the account of 2nd
Defendant and the fact that the bank balance of 2nd
Defendant would not be sufficient to cover a confiscation order,
prompted the applicant to bring an urgent application.








[27] On the face
of the above information it appeared that:



1. 2nd
Defendant was contravening the Lotteries Act.



2. Credit Cards in
the sum of N$736 109.05 were used at a Point of Sale Terminal issued
to 2nd Defendant and a portion thereof, according to
declarations filed, was confirmed to be fraudulent.



3. 3rd
Defendant, using a foreign credit card, received N$250 000.00 from
2nd Defendant’s. 3rd Defendant gave
conflicting explanations for his withdrawal of the N$80 000.00 and in
respect of who the money belonged to.



4. A discrepancy
existed in the signature of 11 foreign card holders who made
declarations, and the signatures appearing on the merchant receipts.



5. The signatures
on some of the merchant receipts appear to be identical for different
credit cards and these transactions took place within minutes of each
other.



6. Monies were
withdrawn from the account of 2nd Defendant by 1st
Defendant and 4th Defendant by way of cash cheques eg
N$100 000.00 on 16 December 2009.








1st
DEFENDANT’S ANSWER



[28] The essence
of the 1st Defendant’s answer to the applicant’s
affidavit was that he was running a legitimate business. He was not
required by law to obtain authorization from the Ministry of
Environment and Tourism as the Lottery Act, 2002 (Act 15 of 2002) was
not in force. He referred to the Project Summary attached to
Applicant’s Affidavit wherein the full nature of his business
was set out. He submitted the cards were not serialized but this was
not intentional. His business offered the scratch card for N$20.00
to the public and N$10.00 to vendors. His business was initially
slow but picked up quite rapidly and this came as no surprise as he
advertised extensively and vendors started buying in bulk.








[29] He had no
knowledge that the cards were foreign cards as the cards presented to
him were cards of Namibian banks. He at all times recorded the
details of the persons purchasing scratch cards with credit or debit
cards in a receipt book in the possession of the applicant and he
satisfied himself as to the identity of these persons. He was also
not alerted by bank to the fact that the cards used in the
transactions were fraudulent. He however deny that the declarations
are valid and submits that it is possible that the Applicant is
mistaken in respect of the foreign origin of the cards as one mistake
in respect of 3rd Defendant was already made.








[30] He did not
know the 3rd Defendant and only got to know him after he
claimed his prize in the sum of N$250 000.00. According to him this
was a legitimate payment in terms of the business of 2nd
Defendant. He denies having formed common purpose with 3rd
Defendant to clear the illegitimate proceeds from 2nd
Defendant’s account.








[31] He submitted
that the only benefit he received was his salary.








[32] He was unable
to respond to the allegations that the same signature was present on
different credit card sales as he could not make out the numbering of
the individual merchant receipts referred to by the Applicant. No
answer was advanced for the rapid succession of transactions.








3RD
DEFENDANT’S ANSWER



[33] The 3rd
Defendant’s maintained that he purchased scratched cards in the
sum of N$3000.00 from 2nd Defendant on 17 and 23 October
2009 using his own debit card to pay 2nd Defendant. He
enclosed his bank account statement supporting the purchase. One of
the scratch cards revealed that he had won a prize of N$250 000.00.








[34] He did not
know the 1st Defendant before he went to claim his prize.
He submits that he is entitled to this prize money as he legitimately
won it by purchasing scratch cards.



[35] He denies the
allegation that he informed the Police that the cheque belonged to
“Kaka” on 7 November 2009 when he wanted to withdraw N$80
000.00. He stated that his name appeared on the cheque and that
would have been absurd for him to deny that the cheque belonged to
someone else. No answer was given in respect of the cell phone
messages.




APPLICANT ‘S
REPLY



[36] The Applicant
in reply conceded that the Lottery Act was not in force at the time
when the Application was made. The Applicant submitted that this was
a genuine mistake.








[37] The Applicant
further conceded that the credit card used by 3rd
Defendant was his own and the funds that were transferred to the
account of 2nd Defendant was from his own account.








[38] The Applicant
denied the existence of an invoice book wherein the 1st
Defendant made entries recording the details of the persons who
transacted with those credit cards and attached copies of the two
invoice books reflecting mostly cash sales. This caused a dispute of
fact.








THE THIRD
INVOICE BOOK
-



[39] The further
affidavits filed by the 1st Defendant disclosed evidence
of at least three(3) persons who purchased scratch cards and who were
issued invoices which fall outside the two invoice books furnished to
the court.








[40] One of the 3
persons was 3rd Defendant. A close look at the invoice
reveals that 3rd Defendant purchased 100 scratch cards on
17 October 2009 for N$10.00 for resale. The second invoice dated 23
October 2009, indicated that 3rd Defendant purchased 200
scratch cards at N$10.00 for resale. Both transactions were recorded
by “B Vries” and were cash sales.








[41] A further
affidavit was an erstwhile employee of 2nd Defendant, Mr
Moses M Sikaneta, who confirmed the existence of a third invoice book
and indicated that he last handled the book on 12 November 2009 when
he was requested by Mr Pumba Muundjua of Standard Bank to make
photocopies of the merchant receipts that were attached to the
invoices. He left the invoice book on the table and the Police later
arrived and requested him to leave.








[42] The applicant
averred that the version of Mr Sikaneta was false and filed a number
of affidavits to indicate what transpired during the search by the
Police and photocopying of the merchant receipts. The deponents
submit that the photocopying took place on 10 November 2009 and not
12 November 2009. The deponents further submit that no one was
present when the search and seizure took place as the offices were
locked and it was opened by the Respondent.








[43] It is common
cause that the 2
nd
Defendant was a close corporation trading as Scratch a million and
that 1
st
Defendant was the sole member
.
The Applicant conceded that the Lotteries Act, 2002 (Act 15 of 2002)
was not in force at the time this application was brought to court
and submitted that it was a genuine mistake. Mr Narib submitted that
this was a material non-disclosure by the Applicant and that the
rule
nisi

should be discharged on this ground alone.








[44] The
application was brought after hours on an
ex
parte

basis. Admittedly the Court leaned heavily on the Applicant, being
the prosecutorial authority, to place the correct legal position in
their founding papers.








[45] It is trite
law that where an order is sought
ex
parte
,
that the utmost good faith must be observed and that all material
facts must be disclosed which might influence a court in coming to
its decision.



[46] Mr Narib
referred this court to
THE
PROSECUTOR GENERAL VS TECKLA LAMECK & OTHERS CASE NO. POCA1/2009
an
unreported judgment delivered on 22 January 2010 in support of
submission hereof. In this matter Damaseb JP juxtaposed two opposing
views express in
SCHLESINGER
V SCHLESINGER
1979
(4) SA 342 and
TRAKMAN
NO V
LIVSHITZ
AND OTHERS
1995
(1) SA 282(A) and comes to the following conclusion:



Trakman
was decided in 1995 and is authority emanating from a high source,
but it is not binding on this Court. In any case, it certainly does
not address the critical issue why motion proceedings are or ought to
be treated differently. I prefer the dictum of Le Roux J in
Schlesinger supra which was made in the context of ex parte motion
proceedings. The rule about material non-disclosure seems in my view
to have greater applicability in motion proceedings, and, a fortiori
in ex parte motion proceedings, in view of the fact that such matters
are ordinarily decided solely on the papers without the benefit of
cross-examination, and what is more, without the benefit of hearing
the other party, which in itself offends the fair trial provisions of
Article 12 of the Namibian Constitution. That makes the Schlesinger
proposition more in tune with the Court’s sense of justice.”







[47] Damaseb
JP in the TECKLA LAMECK matter (supra) quotes the from
the dictum of Le Roux J in Schlesinger v Schlesinger (supra)
as follows:





(1)
in ex parte applications all material facts must be disclosed which
might influence a Court in coming to a decision;


(2)
the non- disclosure or suppression of facts need not be willful or
mala fide to incur the penalty of rescission; and



(3) the Court,
apprised of the true facts, has a discretion to set aside the former
order or to preserve it‟.








[48] I am in full
agreement with the above conclusion reached. The question would be
whether this was the only fact that influenced the court to come to
its decision and the answer to this must be, that although it was
material information, this court would not have come to a different
conclusion since the applicant submitted evidence in support of
charges in respect of theft and fraud and contravention of the
Prevention of Organised Crime Act.








[49] Mr Narib also
submitted that there was non-disclosure in respect of the search that
was carried out. A short answer to this would be that this
information was disclosed by D/Sgnt Muzani and my understanding in
any event was that the search was conducted in terms of the
provisions of the Criminal Procedure Act, 1977 (Act 51 of 1977).




[50] The situation
is however different when considering the incorrect information
furnished in respect of the card used by 3rd Defendant.
D/Sgnt Muzani responded to the averment by 3rd Respondent
that he used his own credit card and not a foreign card:



It is
admitted that an error was made when I informed the Applicant that
all account number details were for foreign based account holders.
3rd Defendant’s debit card account number is not a
foreign based account. This was pointed out to me by Mr Muundjua,
after the interim order had been obtained, in early January 2010
after perusing the relevant documents. However the error, which is
regrettable, is not prejudicial to any party, and more particularly,
the 3rd Defendant, as clearly illustrated through the
affidavit of my Colleague, Constable Anghuwo, there is evidence of
his clear involvement in this scam.”








[51] D/Sgnt Muzani
deduced that all the credit cards were foreign cards. This
impression was created in the affidavit of the Forensic Investigator
of Standard Bank but a simple calculation of the difference (N$3
890.95) between the total of the 52 merchant receipts (N$740 000.00)
and the total amount from foreign card holders is N$736 109.05
clearly indicate that such an inference is incorrect. Given the
statement of 3rd Defendant attached to the founding
affidavit that he purchased scratch cards in the sum of N$3000.00 it
would make it decidedly plausible that 3rd Defendant’s
card was not a foreign card.








[52] The
submission that, despite the error, there is clear evidence of 3rd
Defendant’s involvement is without merit. The fact that 3rd
Defendant used a foreign credit card together with the other facts,
supported a finding by the court that there may have been common
purpose with 1st Defendant to use 2nd
Defendant’s account to clear funds illegally obtained and that
a conviction may follow.








[53] The weight
attached to the other facts deposed to by Constable Anghuwo is
considerably reduced. The fact that 3rd Defendant’s
actions on 7 November 2009 appears to be suspicious cannot, on a
balance of probability, infer that he was acting in concert with the
other defendants especially in view that the identity of the person
with whom he was communicating, was not disclosed by the Applicant.
The documentary evidence adduced supports the 3rd
Defendant’s version that he transacted with his own card at the
Point of Sale Terminal of 2nd Defendant as payment for
scratch cards and that he won N$250 000.00 as a prize.








[54] It was
correctly argued by Mr Narib that indeed this fact was a material
fact that influenced this court to grant the provisional order in
respect of 3rd Defendant. It does not matter that this
was a genuine mistake.








[55] On the ground
of material non-disclosure the rule against 3rd Defendant
should be discharged.








[56] Since this
court found that that there is no evidence which may support a
conviction that the 3rd Defendant acted with common
purpose with 1st Defendant and 2nd Defendant to
clear funds from 2nd Defendant’s account, the
remaining issue to determine is whether the 1st Defendant
used the Point of Sale Terminal allocated to 2nd Defendant
to commit fraud alternatively theft or contravened the provisions of
the Prevention of Organized Crime Act.








[57] Mr Narib
submitted that there was no admissible evidence that foreign card
holders were defrauded. His submission was that the declarations do
not comply with Rule 63 of the Court and should be disregarded. Even
if I am to disregard the declaration for want of non-compliance with
the Rules the additional information provided by the Pumba Muundjua,
the Forensic Investigator at Standard Bank, adequately informs the
Court that at least 36 of the 52 credit cards used at the Point of
Sale Terminal of 2nd Defendant, were issued by Foreign
Banks. 1st Defendant stated in his answering affidavit
that “All the cards that were used at the 2nd
defendant for purpose of purchase of the scratch cards were local
Namibian cards issued by local banks
.” The only inference
to be drawn was that if persons presented cards issued by local banks
with card numbers issued by foreign banks than it follows that
whoever used the cards were falsely misrepresenting that the card
numbers were locally issued whereas in fact it was issued by foreign
banks.








[58] The 1st
Defendant denies that he knew that these were foreign cards or
clones.








[59] The 1st
Defendant indicated that he would always make sure of the identity of
the person using the debit or credit card by requesting and looking
at the identity of such a person. He further intimated that he
recorded all the details of the persons that transacted with these
cards in what turned out to be a disputed invoice book.








[60] Despite the
contention by the applicant that the third invoice book was an
afterthought or even concocted, I am satisfied that a third invoice
book existed given the fact that the 1st Defendant managed
to produce what appears to be some of the original invoices from this
book by independent persons.




[61] This does
however not mean that the Court finds that the Applicant is in
possession of the said invoice book and that same was withheld. The
applicant provided the Court with credible evidence indicating that
the making of photocopies of the merchant receipts took place on 10
November 2009 and not on 12 November 2009. Applicant also provided
the court with credible evidence that only two invoice books were
seized and the 1st Defendant did not dispute this fact in
his answering affidavit.




[62] The applicant
in her founding affidavit stipulated that the merchant receipts
revealed that transactions on the Point of Sale Terminal took place
minutes of each other and that the signatures that appear on the
merchant receipts appear to be similar even when different cards were
used. The 1st Defendant indicated that he was unable to
follow the numbering in order to respond to the latter allegation.
This however was not needed as this can be observed ex facie
the merchant receipts forming part of the founding documents. No
answer was given as to the proximity of the transactions by the 1st
Defendant.








[63] I have
carefully considered these allegations to ascertain whether the 1st
Respondent did know or should have known that the transactions were
not regular transactions. I have compiled the information in table
form to understand exactly what the Applicant meant with these
allegations. The table is set out separately and attached hereto to
support the conclusions reached. (The table is not devised to prove
the veracity or otherwise of the evidence but merely compiled to
assist this Court to clarify some of the allegations made.








[64] I have
extracted from this information the following: On 17 October 2009
two transactions amounting to N$15 000.00 were made after the 3rd
Defendant made the first transaction of N$1000.00. These two
transactions were made nine minutes apart. On 20 October 2009
two transactions amounting to N$25 000.00 were made two minutes
apart. On 21 October 2009 two transactions amounting to N$20
000.00 were made four minutes apart and a further two amounting to
N$30 000.00 were made three minutes apart. On 23 October 2009
the 3rd Defendant was the only debit card transaction for
the day.








[65] On 25
October 2009
eleven transactions were done in a space of one hour
with eleven different cards totaling N$129 000.00. The same person
appeared to have signed the first three transactions totaling N$25
000.00 although the card numbers are different. Two minutes after
this transaction was recorded another transaction took place. At
11H36 a person presented a card and the same person appear to have
returned within 11 minutes to use a different card. These two
transactions totaled N$25 000.00. Two transactions followed 1 minute
apart and the signature appears to be the same signature with
different card numbers.








[66] On 26
October 2009
seven transactions totaling N$60 000.00 were done in
a space of 15 minutes and it appear that at least 2 of the
transactions have been signed by the same person with two different
cards.








[67] On 27
October 2009
a total number of 13 transactions took place
totaling N$250 000.00. Four of those transactions took place within
half an hour. The first two transactions amounting to N$40 000.00
are 1 minute apart and the same applies to two following
transactions. The remaining 9 transactions took place later the same
day also within a space of half an hour. The first of these persons
appears to have transacted within two minutes with two different
cards. The second person appears to have transacted 1 minute after
the first and within the same minute transacted with a different
card.








[68] These
allegations made by the Applicant in her founding affidavits was met
with little or inadequate response by the 1st Defendant.
The number of transactions; the amounts involved and the manner in
which it was done, aught to have alerted any business owner that
something was amiss. Section 9 (1) of the Prevention of Organised
Crime requires of



any
person who carries on a business undertaking or who is employed by a
business undertaking and who suspect or aught reasonably to have
suspected that:



(a)
any property which comes into his or her possession or the possession
of the business undertaking, is, or forms part of, the proceeds of
unlawful activities



(b)
a transaction to which he or she or the business undertaking is a
party will facilitate the transfer of of the proceeds of unlawful
activities; or



(c)



must
report his or her suspicion and provide all available information
concerning the grounds on which it rests, without unreasonable delay
to the Bank and must take all reasonable steps to discharge that
obligation.


















[69] The 1st
Defendant’s silence in respect of these allegations does not
auger well for his case that he did not know that these were illegal
transactions. At the very least the above may support a conviction
of failure to comply with the obligation as contained in section 9
(1) of the Prevention of Organised Crime Act. This provision clearly
only require negligence as a form of intent and not mens rea.








[70] In terms of
the provisions of section 24 and 25 of the Prevention of Organized
Crime Act. 2004 (Act 29 of 2004) the Court may grant a restraint
order when:



(a) (i) a prosecution for an
offence has been initiated against the Defendant concerned



(ii)



(b) (i) the court is satisfied
that a person is to be charged with an offence; and



(ii) it appears to the court
that there are reasonable grounds for believing that a confiscation
order may be made against that person a prosecution for an offence
has been instituted against the defendant concerned;























[71] The only
jurisdictional fact in dispute between the parties is the latter part
i.e whether there are reasonable grounds for believing that a
confiscation order may be made against the Defendants.








[72] In terms of
section 32 a confiscation order may be granted if the defendant is
convicted of an offence and has received a benefit which he /she has
derived from that offence or; any other offence of which the
defendant has been convicted of at the same trial; or of any criminal
activity which the court finds to be sufficiently related to the
mentioned offences.








[73] In terms of
17 (3) a person has benefitted from the commission of an offence or
related criminal activity if he or she at any time, whether before or
after the commencement of this Act, received or retained any proceeds
of an offence or related criminal activity, whether or not that
person is still in possession of those proceeds of an offence or
related criminal activity subsequent to having received or retained
those proceeds.








[74] In other
words this court must be satisfied on the face of the facts placed
before court that the defendants may be convicted and that the trial
court may find that the defendants benefited from the offence or any
other relevant



offences as
described. In THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS vs
MULLER CONRAD RAUTENBAGH
Nugent JA stated the following:



It is
plain from the language of the act that the court is not required to
satisfy itself that the Defendant is probably guilty of an offence,
and that he or she has probably benefited 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 on the available evidence, and cannot rely merely upon the
appellant’s opinion (National Director of Public Prosecutions v
Basson 2002 (1) SA 419 (SCA) para 19) it is nevertheless not called
upon to decide upon the veracity of the evidence. I need ask only
whether there is evidence that might reasonably support a conviction
and a subsequent confiscation order (even if all the evidence is not
placed before it) and whether that evidence might reasonably be
believed. Clearly that will not be so where the evidence that is
sought to be relied on is manifestly false or unreliable”








[75] The evidence
adduced against 1st and 2nd Defendant might
reasonably support a conviction and a subsequent confiscation order
and having concluded thus it is the order of this court that:




  1. Condonation for
    the late filing is granted.



  2. The Rule Nisi
    is confirmed against 1st and 2nd Defendants
    and the Respondent.



  3. The Rule Nisi
    against the 3rd Defendant and 4th Defendant is
    discharged.



  4. The Applicant is
    to pay the costs of the 3rd and 4th
    Defendants.



  5. The 1st
    and 2nd Defendants are to pay the costs of the Applicant.


















______________________





TOMMASI
J















































































Appearance for the
parties:


For
the Applicant:
Mr S. Nduna


Office
of the Prosecutor-General






For
Defendants and Respondent: Adv. G. Narib


Isaacks
& Benz Inc.