CASE NO.:POCA 11/2011

REPORTABLE

IN
THE HIGH COURT OF NAMIBIA

In
the EX PARTE
application of:

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

RE:

IN
THE APPLICATION FOR A PRESERVATION ORDER IN TERMS OF SECTION 51 OF
THE PREVENTION OF ORGANISED CRIME ACT 29 OF 2004.

CORAM: MILLER, AJ

Heard on: 17 November
2011, 23 November 2011, 28 November 2011

Delivered on: 02 December
2011

JUDGMENT

MILLER, AJ:
[1] This matter comes before me as an application for a preservation
order in terms of Section 51 of the Prevention of Organised Crime
Act, Act 29 of 2004. I shall henceforth refer to this Act as POCA.

[2] When the matter was
called, Ms. Boonzaier appeared to move the application.

[3] Ms. Boonzaier is not
an admitted legal practitioner in Namibia, although she is apparently
attached to the staff of the Prosecutor-General.

[4] I mero motu
raised with Ms. Boonzaier the issue whether or not she is entitled to
appear and to move the application, if she is not admitted to
practice as a legal practitioner in Namibia.

[5] I thereupon postponed
the matter to 23 November 2011 in order for the Prosecutor-General to
address me on the issue.

[6] Mr. Small, a Deputy
Prosecutor-General, and an admitted legal practitioner appeared on 23
November 2011, not to move the application, but instead to advance
argument on the issue I had raised.

[7] I was subsequently
provided with written heads of argument. I am grateful to Mr. Small
for the industry he has shown.

[8] The reason for my
concern stems from the fact that applications in terms of Section 51
of POCA are civil proceedings and not criminal proceedings.

[9] Section 50 (1) and 50
(2) of POCA makes that abundantly clear. They read as follows:

“50
(1) for the purposes of this Chapter, all proceedings under this
Chapter are civil
proceedings
and not criminal proceedings.

(2)
The rules of evidence applicable in civil proceedings apply to
proceedings under this Chapter, but any evidence admissible in
criminal proceedings, is admissible in proceedings under this
Chapter.”

[10] Section 52 (2) of
POCA takes the matter further inasmuch as it provides that notice of
a preservation order must be served in the manner in which a summons
commencing civil proceedings in the High Court is served.

[11] Applications for
preservation orders in terms of Section 51 of POCA are analogous to
an application for an interim interdict and attachment pendente
lite. (National Director of Public Prosecution v Phillips
and Others 2002 (4) SA 60 (W).

[12] As was pointed out
in respect of similar provisions in South Africa applications of this
nature are not conviction based and may be invoked even when there is
no prosecution. National Director of Public Prosecution v
Mohamed 2002 (4) SA 893 CC at 851.

[13] The fact that the
application was a civil proceeding was correctly in my view not
contested by Mr. Small.

[14] It was also accepted
again correctly on my opinion, that a litigant in civil proceedings
in the High Court who is represented, must be represented by a legal
practitioner admitted to practice in the High Court.

[15] It follows that this
must apply when the Prosecutor-General is represented in Section 51
applications under POCA, unless, there are other statutory provisions
to the contrary.

[16] A convenient
starting point is Article 88 (2) of the Constitution, which sets out
the powers and functions of the Prosecutor-General. It reads as
follows:

“(2)
The powers and functions of the Prosecutor-General shall be:

1. 
   To
   prosecute, subject to the provisions of this Constitution, in the
   name of the Republic of Namibia in criminal proceedings;

   
   

2. 
   To
   prosecute and defend appeals in criminal proceedings in the High
   Court and the Supreme Court;

   
   

3. 
   To
   perform all functions relating to the exercise of such powers;

   
   

4. 
   To
   delegate to other officials, subject to his or her control and
   direction, authority to conduct criminal proceedings in any Court;

   
   

5. 
   To
   perform all such other functions as may be assigned to him or her in
   terms of any other law.”

   
   

[17] It is apparent that
subsections (a) to (d) all relate to the powers of the
Prosecutor-General to institute and prosecute in criminal
proceedings. In particular sub-section (d) empowers the
Prosecutor-General to delegate her authority to other officials, but
that power is confined to criminal proceedings only.

[18] Sub-section (e)
provides that the legislature may by way of statutory enactment
assign further functions to the Prosecutor-General distinct from
his/her prosecutorial functions. POCA is a good example of that. It
empowers the Prosecutor-General to institute civil proceedings to
claim the orders provided for in POCA.

[19] POCA itself is
silent on the issue of representation at least as far as Section 51
applications are concerned. It contains no provision, at least as far
as Section 51 applications are concerned, that the Prosecutor-General
may be represented by a person who is not an admitted legal
practitioner.

[20] In contrast Part 3
of Chapter 5 of POCA which deals with confiscation orders contains
express provisions to the effect that a public prosecutor may with
the written consent of the Prosecutor-General apply for a
confiscation order. (Section 32 and Section 33 of POCA), It is
noteworthy that POCA provides that the public prosecutor is not
authorized to bring an application by virtue of the general
delegation to prosecute granted by the Prosecutor-General in terms of
Article 88 (2)(d) of the Constitution. The prosecutor requires
instead a separate and distinct written authorization in respect of
each application.

[21] Mr. Small did not
refer me to any other statutory authority to support his submissions
and I was not able to find any.

[22] In the absence of
any express provision authorizing persons other than admitted legal
practitioners, to appear in applications of this nature I have given
consideration to whether it is not an implied provision as POCA.

[23] Regard must be had
to the fact that Ms. Boonzaier, is a staff member in the
Prosecutor-General’s office. She probably has legal
qualifications and judging by the written Heads of Argument she
prepared prior to moving the application, she is at least as far as
POCA is concerned an able and competent lawyer. Not to allow her to
appear and move the application may seem to some absurd, even utterly
absurd.

[24] Two fundamental
considerations point the other way, however.

[25] Firstly I should be
slow to read into the legislative provisions that which is not there
and to that extent amend or supplement the legislation. I am entitled
to do so only in rare and exceptional cases. R v Venter 1907 TS
910.

[26] In S v Negongo
1992 NA 352 Hannah J summarised the applicable principles as
follows on p 3 & 6.

“The
following rules are principles, which appear in the forgoing passage
seem to me to be worthy of special emphasis.

1. 
   The
   cases in which the Court may depart from the clear meaning of a
   statute form a rare and exceptional class.

   
   

2. 
   To
   justify a departure from or amendment of, the language of a statute
   when absurdity is relied upon, the absurdity must be utterly
   glaring.

   
   

3. 
   It
   is not enough to come to the conclusion that the amendment
   “probably” expresses the intention of the legislature.
   The Court must be certain that it does.

   
   

4. 
   It
   is dangerous to speculate as to the intention of the legislature.

   
   

5. 
   Generally
   speaking, the language of a statute should not be extended beyond
   its natural sense and proper limits in order to supply omissions or
   to remedy defects.”

   
   

[27] Bearing in mind
these principles, I can only speculate why the legislature when it
enacted POCA did not make provision that persons or the staff
compliment of the Prosecutor-General and who are not admitted legal
practitioners may nonetheless appear. If for instance it was an
oversight, it is best left for the legislature to re-consider the
position.

[28] Secondly, as I have
indicated Section 32 and 33 of POCA contain express provisions
enabling public prosecutors, who need not necessarily be admitted
legal practitioners to appear.

[29] The absence of
similar provisions in relation to Section 51 applications, is
arguably an indication that the legislature did not want the
provisions of Section 32 and 33 to apply to Section 51 applications.
It remains in the end a matter on which I can only speculate.

[30] In the result I
conclude that Ms. Boonzaier has no locus standi to move the
application.

__________

MILLER, AJ

ON BEHALF OF THE
APPLICANT: Mr. Small

Instructed by:
Office of the Prosecutor-General