Swartz v Indongo and Others (APPEAL 334 of 2011) [2012] NAHC 1 (16 January 2012);
CASE NO.: A 334/2011
IN THE HIGH COURT OF
NAMIBIA
In the matter between:
DAVID SWARTZ
…...........................................................................................APPLICANT
and
MARTIN INDONGO
…............................................................................1ST
RESPONDENT
THE INSPECTOR GENERAL OF THE
NAMIBIAN POLICE
…..........................................................................2ND
RESPONDENT
THE MINISTER OF SAFETY &
SECURITY ….....................................3RD
RESPONDENT
CORAM: SMUTS, J
Heard on: 23 December 2011
Delivered on: 16 January 2012
JUDGMENT
SMUTS, J.: [1] On 23
December 2011, the applicant approached this court on an urgent basis
for a order condoning the use of urgent procedures and for the
following further relief:
“2.
Declaring the search and seizure conducted by the first respondent
and his team to be illegal, null and void;
3. Directing that the first
respondent and his team to immediately return the following items
that were seized by them to the applicant, alternatively, directing
the respondents to immediately return the following items that were
seized by the first respondent and his team to the applicant namely:
a Toyota Hilux E- Cub 2.0,
a pick up motor vehicle VVT-I
model 2010,
a Volkswagen Golf 6 GTI model
2011,
a 142 inch plasma television
screen,
a 152 inch plasma television
screen,
a coffee table
a blackberry cell phone,
a bed,
a headboard and dressing mirror,
a lounge suite,
a quad bike,
2 ATM Bank Windhoek cards (my
personal one and one for the Close Corporation),
a Namibian identity card,
cash to the amount of
approximately N$49 500.00
a blackberry cell phone
a FNB ATM card
4. Ordering that the respondents in
whatever respect the court may find, comply with the terms of prayer
3 hereof by 16:00 on Wednesday the 21st of December 2011.
5. Ordering the respondents to pay
the costs of this application including the costs of pursuant to the
employment of one instructing and one instructed counsel.”
[2] The applicant had originally set
the matter down for 21 December 2011. This had provided far too
little time to the respondents to provide answering affidavits and
the date of hearing was extended by agreement between the parties by
two days in order to afford the respondents an opportunity to answer
to the application.
[3] The first respondent is the head
of the Drug Law Enforcement Unit of the Erongo Region of the Namibian
Police. He was the senior officer involved in a search of the
applicant’s home. In the course of that search a number of
items were seized and taken from his home, forming the subject matter
of this application. The second and third respondents are the
Inspector General of the Namibian Police and the Minister of Safety
and Security respectively.
[4] The search of the applicant’s
home occurred on the morning of 5 December 2011. In the course of the
search, a number of items were seized. They are set out in the notice
of motion and already referred to, except for the first item
mistakenly inserted which falls away.
[5] This application concerns the
legality of the search and seizure by member of the Namibian Police’s
Drug Law Enforcement Unit. It is common cause that the search was
without a warrant. The respondents said that they were entitled to
proceed with the search under s22 of the Criminal Procedure Act, 51
of 1977 “(the Act)”. They further said that the seizure
of the items in question was authorised under s20 of the Act. Before
referring to the relevant statutory provisions, the factual
background is first set out as to what gave rise to the search and
what occurred in the course of the search.
[6] The applicant challenges the
search and seizure on the grounds of an infringement of his
constitutional right to privacy. He brings this application under art
25 of the Constitution on the grounds of the alleged infringement of
his constitutional rights.
[7] In the founding affidavit, the
applicant states that members of the Unit under the command of the
first respondent “disorderly stormed” his residence at
Erf 5273, Hofsanger Street, Khomasdal, Windhoek. He further states
that the members of the Unit broke a padlock on his small gate and
forced themselves onto his premises without seeking his permission.
After this occurred, he states that he opened his electronically
controlled gate and that the Unit members proceeded with the search.
In the course of this search, the Unit members seized the items set
out in the notice of motion. The applicant acknowledges in his
founding papers that some of the money was contained in a plastic bag
which also contained what he termed a small “rock” which
was explained in the answering affidavit to mean cocaine in street
parlance. He acknowledged that he was arrested and subsequently
released on bail of N$2 000 on a charge of dealing in drugs valued at
N$100 and of committing the offence of money laundering. His
explanation for the large sum of cash found in his possession in
various places at his residence was that he was engaged in a business
of selling fish as well as cars and also providing cash loans. He
attached to the founding affidavit copies of an amended founding
statement in respect of a close corporation known as D&C Trading
CC. These papers and his affidavit indicate that he is sole member of
that close corporation. He did not provide any further accounts or
documentation relating to transactions of this entity.
[8] The applicant challenges the
lawfulness of the search and seizure of the items and asserts that
the seizure of the items did not fall within the scope of s20 of the
Act. He submits that the seizure was for the purpose of preserving
the items and that the respondents should rather have invoked and
followed the mechanism provided for in s51 of the Prevention of
Organised Crime Act, Act 29 of 2004 (“POCA”). The
applicant also challenges the legality of the search without a
warrant and contends that the police did not meet the requisites of
s22 of the Act.
[9] Despite the short period of time
available, a lengthy and detailed affidavit was provided by the first
respondent. He is based in Walvis Bay. He had travelled to Windhoek
to do so. Although criticizing the extremely short period of time
afforded to the respondents to deal with the application, the
respondents did not however oppose the hearing on an urgent basis but
instead focused their opposition on the merits of the search and
seizure.
[10] The first respondent, who has
served in the Unit for 5 years, explained that Namibia has
transformed from being a drugs transit country in the 1990s to
developing into a drug consuming country. He states that the
prevalence of cocaine usage and dealing within Namibia has increased
markedly and that cocaine has overtaken mandrax and dagga in
prevalence. He also points out that cocaine is a dangerous and highly
addictive drug and that the major centres of Namibia, namely
Windhoek, Oshakati, Walvis Bay, Swakopmund and Keetmanshoop, are
battling with cocaine related crime. He points out that the use of
cocaine has led to an increase in violent crimes such as rape,
murder, robbery, housebreaking, theft and prostitution in these areas
which are linked to the use of dangerous drugs such as cocaine.
[11] It is within this context that
the first respondent explained that whilst investigating a person
whom he terms as a “known and convicted Swakopmund cocaine drug
dealer”, a certain Jaco Martin Olivier, he came across
financial records which showed substantial cash deposits made by
Olivier on a regular basis into the applicant’s banking
accounts, including that of D&C Trading cc. He stated that these
transactions gave rise to a suspicion of illegal drug deals between
the applicant and Olivier. He accordingly instigated the
investigation of the applicant by his counterpart in the Unit in
Windhoek, Inspector Basson. According to Inspector Basson, the
applicant was a known drug dealer in Windhoek. The first respondent
attached the banking account records of the applicant and of his
close corporation. These reveal several cash deposits exceeding an
aggregate of N$2,5 million in the two accounts, mostly over the past
two years. He referred to cash deposits made by persons whom he
referred to as “known and convicted drug dealers”
including Olivier, a certain Anton Erasmus, Clinton Malander and the
brothers Fabian and Shaun Langenhoven.
[12] The first respondent specifically
stated that the substantial and frequent cash deposits into these
accounts raise a suspicion of drug dealing. It was for this reason
that the applicant was under surveillance and that undercover police
operations were undertaken in which cocaine was purchased from what
the first respondent called “the applicant’s syndicate”.
The respondents referred to the applicant as head of a syndicate
although he was not at the forefront of selling drugs and that he
operated from a house in Diamante Street, Khomasdal. The first
respondent indicated that the Unit members were not however certain
that this was the applicant’s residence. For this reason it
would have been difficult to obtain a search warrant, given this
uncertainty. The first respondent further indicated that there have
been series of “test-buys” of cocaine during the
preceding weekend of 3 to 4 December 2011 in the area of Diamante
Street, Khomasdal.
[13] The Unit members then on 5
December 2011, proceeded to the address in Diamante Street, a heavily
secured house, with a view to conducting a search, and suspecting
that the applicant resided there. But when they were eventually able
to enter those premises, they established that the applicant did not
live there and that he lived at the house in Hofsanger Street in
Khomasdal where the search was later conducted. The Unit members
needed directions from an occupant of that house in order to find the
applicant’s residence. The first respondent then approached the
house and endeavoured to obtain entry to the secured premises with
electronic controlled gates by enquiring from the applicant about
purchasing fish. The applicant, when approaching the first
respondent, appeared to have seen the presence of one of two other
vehicles further down the street and responded by stating that he did
not have any fish and that first respondent should leave. The first
respondent then went back to his colleagues and thereafter returned
to the house and demanded that the applicant afford them access,
identifying themselves as police officers and requested the applicant
to open the electronically controlled gates.
[14] The applicant declined to do so
and went into his house. The unit members then decided to use force
to enter the premises by endeavouring to break the lock on the small
gate by means of crow-bar. The applicant then emerged and proceeded
to open the electronically controlled main gate. The first respondent
explained in detail how the search proceeded and described the items
which were seized. In the course of the search he stated that various
sums of money totalling in excess of N$47 000, were found at
different locations in the house. These included a sum in a
transparent plastic bag which applicant had, upon enquiry, produced.
It containing in excess of N$ 24 000. The first respondent testified
that a small piece of cocaine fell from this plastic bag together
with the money. He identified it as cocaine by reason of his
experience in the Unit. He stated that the applicant proceeded to
pick up that small piece of cocaine, threw it in his mouth and
swallowed it. At the outset of the search, the applicant had earlier
stated that he did not possess any drugs and had no knowledge of any
dealing in drugs. A second piece of cocaine was later found amongst
other money, also in a transparent plastic container. According to
the first respondent, the applicant admitted that it was his cocaine.
He was then charged with this. His admission in this regard is not
put in issue in reply.
[15] Other money was found elsewhere
in the applicant’s possession including in the boot of his
Volkswagen Golf motor vehicle and behind a refrigerator in the
garage. The first respondent testified that there were two
refrigerators in the garage, one of which contained fish. Apart from
the applicant stating that he was in the business of selling fish and
motor vehicles, he did not provide any further explanation for the
money in his possession or any proof in support of transactions
relating to those activities. Nor did he provide any explanation for
the large sums paid into his account by those termed as drug dealers
except to say that these sums related to his fish business. He states
in reply that Olivier is known to him but denies any knowledge of the
latter being a convicted drug dealer and states that the deposits
related to the supply of fish stocks. No documentation was provided
in support of this assertion in reply. Nor were any details
whatsoever provided in reply concerning the scale and ambit of the
fish business. This despite the fact that Unit members had expressly
asked for proof of the money being received in the course of the fish
business. He was arrested following his admission concerning the
cocaine found in his bedroom and was taken to the Wanaheda Police
Station upon the completion of the search and seizure.
[16] When the search started, a member
of the Unit, Sergeant Nunuheb had been positioned outside the house.
During the relatively short time of the search and seizure, two
prospective purchasers of cocaine approached him to purchase cocaine.
Sergeant Nunuheb went along with the purchasers’ requests. Each
of them made payments for the drug and was told to go inside the
residence. Once inside, sworn statements were obtained from each of
them. A total of N$1 300 was received in this way from these
prospective purchasers, Donovan Briedenhann and Orban Meyer. Their
affidavits were attached to the answering affidavits.
[17] The first respondent also
referred to recovering small plastic containers commonly used in the
illicit trade in cocaine in the head board of the bedroom bed.
[18] The first respondent concluded
that the applicant’s house provided evidence of the applicant’s
drug dealing by reason of the two prospective purchasers of cocaine
who arrived at the house, the quantities cash found in various parts
of the applicant’s house, the fact that the applicant was in
possession of cocaine, his action of swallowing evidence, his initial
conduct of seeking to prevent the search, his financial records
revealing suspicious transactions with convicted drug dealers and
finding the small plastic container used in illicit cocaine dealing
in the head board of the bed. Upon enquiry, the applicant also
informed the first respondent that he paid for one of his vehicles
(VVTi pick-up) in cash in the sum of N$162 718, 61 and that a N$ 200
000 cash deposit was made in respect of the 2011 VW Golf 6 GTI. The
former fact was confirmed under oath by the dealer in question. As a
consequence the applicant was not only charged with possession of
cocaine but also with the offence of money laundering under POCA.
[19] In respect of the seizure of the
items, the first respondent stated that the items constituted
evidence and that there was a need to preserve those items while the
investigation proceeded concerning the acquisition of those assets.
The first respondent stated that he had a strong suspicion that the
applicant’s assets so seized were purchased from the proceeds
of crime and stated that the substantial cash deposits in respect of
both vehicles and the cash deposits in respect of the banking
accounts could not be backed by income lawfully earned by the
applicant. Despite this emphatic statement in the answering
affidavits the applicant provided no further detail whatsoever in
reply in respect of his income and for the cash received by him and
his close corporation. No financial statements were provided in
respect of the close corporation. No details of any transactions were
in fact given. No further explanation was provided concerning the
nature, scale and ambit of the business, save to point out that it
was conducted in cash.
[20] The question accordingly rises as
to the legality of the search and seizure, both of which are placed
in issue by the applicant. The first issue is whether the Unit
members met the requisites of s22 of the Act in respect of their
search without a warrant. This section is entitled “Circumstances
in which article may be seized without search warrant”. It
provides:
“A police
official may without a search warrant search any person or container
or premises for the purpose of seizing any article referred to in
section 20 –
if the person concerned consents
to such search for and he seizure of the article in question, or if
the person who may consent to the search of the container or
premises consents to such search and the seizure of the article in
question; or
If he on reasonable grounds
believes –
that a search warrant will be
issued to him under paragraph (a) of section 21(1) if he applies for
such warrant; and
that the delay in obtaining such
warrant would defeat the object of the search.”
[21] Although the first respondent
stated that the applicant consented to the search after eventually
providing entry to members of the Unit, it would not appear to me
that there was consent as envisaged by this section, approaching the
facts in accordance with the well established principles as set out
in Plascon-Evans Paints Ltd
v Van Riebeeck Paints (Pty) Ltd1,
repeatedly followed by this court. The first respondent attracts the
onus of establishing consent [and the reasonable grounds for the
belief under subsection (b)]. The facts raised by him in support of
his contention of consent do not in my view establish that. But the
first respondent further states that he had reasonable grounds for a
belief that a warrant would be issued to him under s21(1) of the Act
upon application and that the delay in obtaining such a warrant would
defeat the object of the search. In my view, the first respondent
established reasonable grounds for his belief in respect of both legs
of that statutory requirement.
[22] A warrant would in my view have
been issued to him had he applied for one. He fully explains why no
such application had been made beforehand, by reason of the
uncertainty as to the place of residence of the applicant. This
reason is subsequently demonstrated to be well founded as the
applicant was not in fact residing at the residence in Diamante
Street, Khomasdal. The cash deposits by Olivier and others identified
as drug dealers known to the Unit and the undercover operation on the
preceding days would have justified the issue of a search warrant.
[23] There would also be reasonable
grounds for a belief that the obtaining of the warrant, after
establishing the applicant’s actual whereabouts as the events
unfolded, may also have defeated the object of such a search. The
first respondent stated that the person who pointed out the
applicant’s residence to him when pressed to do so was visibly
nervous in doing so. There would certainly be reasonable grounds for
apprehending that the applicant may get wind of a possible search had
the first respondent then delayed by applying for a warrant.
[24] I am accordingly satisfied that
the search was in accordance with s22 of the Act and was thus lawful.
The relief sought in this regard accordingly fails.
[25] The further question arises as to
the seizure of the articles. The first respondent relies upon s20 of
the Act. This section provides:
“The state
may, in accordance with the provisions of this chapter, seize
anything (in this chapter referred to as an article) –
which is concerned in or is on
reasonable grounds believed to be concerned in the commission or
suspected commission of an offence, whether within the Republic or
elsewhere;
which may afford evidence of the
commission or suspected commission of an offence, whether within the
Republic or elsewhere; or
which is intended to be used or is
on reasonable grounds believed to be intended to be used in the
commission of an offence.”
[26] The respondents would need to
satisfy any one of the three contemplated circumstances to provide
for a lawful basis for unit members to have seized the articles in
question. The first respondent primarily relies upon s20(b) by
contending that the items in question afford evidence of the
commission of the offence or the suspected commission of an offence.
He also however relies upon s20(c) by asserting that certain of the
items were intended to be used or upon reasonable grounds believed
that they were intended to be used in the commission of an offence.
This latter ground would form a basis for the seizure of the
head-board, bank cards, identity document, cell phones and cash and
possibly one of the vehicles. The seizure of the other furniture and
both vehicles may be justified by s20(b) of the Act. The applicant
has been charged not only with dealing in and possession of cocaine
in contravention of the Abuse of Dependence Producing Substances and
Rehabilitation Centres Act, Act 41 of 1971 but also the offence of
money laundering. Offenses relating to money laundering were
introduced by POCA. They include s6 of POCA which provides that it is
an offense for person to acquire, use or have possession of property
and who knows or reasonably would have known that it is or forms part
of the proceeds of unlawful activities. This is a serious offence, as
is evidenced by the severe penal provisions provided for in s11 of
POCA. As I have indicated, the first respondent referred to several
cash deposits in the banking account of the applicant as well the
close corporation in which he is the sole member for which no proper
explanation was provided by the applicant. Furthermore a considerable
sum of cash was found in different locations in his house. The
applicant further stated that one of his vehicles was bought by way
of cash and that a cash deposit of N$200 000 was made in respect of
the other. It would seem that the possession of the vehicles and
seized furniture may afford evidence of the suspected commission of
the offence of money laundering as set out in POCA.
[27] The first respondent describes
the seized furniture as being expensive household assets, not put in
issue in reply, and that the applicant was not able to show, upon
enquiry, how he earned the income to enable him to acquire them. The
first respondent gave evidence that the lounge suite which has been
seized has a high value attached to it as well as the plasma
television sets seized and the quad bike. This was stated with
reference to large cash sums which the applicant asserted were paid
for these items. These items may thus afford evidence of the
commission of suspected commission of the offence of money
laundering. Although no value was attached to the bed referred to, it
is included in what the first respondent refers to as “luxury
and expensive goods concerned with drug dealing proceeds”. Even
if it is separate from the head board in respect of which the first
respondent has established reasonable grounds to believe that it was
used in the commission of an offence, its inclusion as a luxurious
item and the fact that the first respondent states that there were
other beds and another working television set may indicate that it
may afford evidence of the commission of the offence of money
laundering.
[28] It would thus seem to me that the
items which were seized by the members of the unit would fall within
s20 of the Act. As stated by Du Toit de Jager Paizes, Skeen and Van
der Merwe in their work Commentary
on the Criminal Procedure Act2
concerning s20:
“This
section contains the general power of the state to seize certain
articles in order to obtain evidence for the institution of a
prosecution or the consideration of instituting such prosecution. It
should be noted that virtually everything maybe seized in terms of
the section, provided that it qualifies to be included in one of the
three groups contained in s20... It is clear that s20 is very wide
and intended to assist the police in their investigations of a
criminal case:.”
[29] In my view, the first respondent
established that his belief in respect of use or intended use of the
cash, cell phones, identity card and bank cards was reasonable. This
is an objective question, as is the question as to whether the other
items may afford evidence as to the commission or suspected
commission of an offence. This question was also in my view
established objectively on the basis of all the facts before the
court, including the applicant’s acknowledgment of knowing the
persons from whom he received the cash deposits – although
denying that they were drug dealers - and his failure to dispute his
admission in reply concerning the possession cocaine and to properly
explain or provide details of the acquisition of such large cash
deposits and for the cash which had been applied to the acquisition
of the cars and the other luxury items referred to by the first
respondent and contained in paragraph 2 of the notice of motion.
[30] The first respondent indicates
that the cell phones – potentially invaluable in providing
evidence - may be released once such evidence is obtained. The bank
cards and identity document may also be released subject to
conditions relating to access to the money in the banking accounts.
The first respondent further indicates that the matter has been
referred to the office of the Prosecutor-General with a view to a
consideration of invoking further procedures and steps contained in
POCA. The fact that POCA provides a mechanism for the preservation of
assets and their forfeiture, does not mean that the search and
seizure provisions under the Act do not apply to offences suspected
to have been committed which have been established under POCA. It is
of course open to the state to have recourse to those provisions
under the Act when investigating offences under POCA. POCA contains
no provisions of its own concerning search and seizure of items for
the purposes listed in s22 and 20 of the Act. What required is for
the State to meet the requisites in those sections which it has done
so in this matter. The fact that the investigating officer would also
want the items to be preserved does not detract from the question as
to whether those requisites (for search and seizure) were met.
[31] It would follow that the seizure
of the items listed in the notice of motion was in my view lawful.
[32] Despite the respondents’
onus to establish meeting the requisites of ss20 and 22, which they
did in my view, the applicant bears the overall onus of establishing
his entitlement to the relief contained in the notice of motion. That
he has not done. It accordingly follows that the application is
dismissed with costs.
___________
SMUTS, J
ON BEHALF OF THE APPLICANT: MR.
KHAMA
Instructed by: SIBEYA &
PARTNERS LEGAL PRACTITIONERS
ON BEHALF OF THE RESPONDENTS: MR.
KHUPE
Instructed by: OFFICE OF THE
GOVERNMENT ATTORNEY