REPUBLIC OF
NAMIBIA

CASE NO. POCA
9/2011

IN THE HIGH
COURT OF NAMIBIA, MAIN DIVISION

HELD AT
WINDHOEK

In the matter
between:

MARTIN SHALLI
.........................................................................Applicant

and

THE
PROSECUTOR-GENERAL
.................................................Respondent

CORAM: VAN
NIEKERK, J

Heard: 23 February
2012

Delivered: 2 May
2012

________________________________________________________________________

JUDGMENT

VAN NIEKERK,
J:

Introduction
and background

[1] The applicant
(hereinafter “GMS”) was formerly the High Commissioner of
Namibia in the Republic of Zambia where he served between 2005 and
2006. In 2006 he was appointed Head of the Namibia Defence Force. In
January 2011 he retired with the rank of Lieutenant-General.

[2] On 30
September 2011 the respondent (hereinafter “the PG”) ex
parte obtained a preservation of property
order (hereinafter “preservation order”) before SWANEPOEL
J under section 51 of the Prevention of Organised Crime
Act, 2004 (Act 29 of 2004) (hereinafter “POCA”). The
order reads as follows:

“1.
The order relates to the amount of USD359 526.27 held at Standard
Chartered Bank, Lusaka, Account Number 8700222632700 in the name of
Martin Shalli and the amount of USD1 389.00 held at Standard
Chartered Bank, Account Number 8700260305400 held in the name of
Elsie Maseke Ausiku (“the properties”) (sic).

2. In terms of section 51 of
the Prevention of organised Crime Act, 2004, Act No. 29 of 2004
(“the Act”) all persons with knowledge of this order are,
other than as required and permitted by this order, prohibited from
removing, taking possession of or control over, dissipating,
interfering with, diminishing the value or, or dealing in any other
manner with any of the properties (sic) to which this order
relates.

3. The Attorney General of
Zambia shall in terms of the relevant Zambian domestic law exercise
control over the properties (sic) until finalisation of the
forfeiture proceedings relating to the properties (sic).

4. The Applicant shall:

4.1 In terms of section
52(1)(a) cause notice of this order, in the form set out in Annexure
A hereto, together with documents supporting the application, to be
served by the sheriff on

4.1.1 Martin Shalli residing at
72 Amasoniet Street Erospark, Windhoek;

4.1.2 Elsie Maseke Ausiku
residing at 49 Omatjene Street Cimbebasia, Windhoek;

4.2 In terms of section
52(1)(b) cause notice of this order, in the form set out in Annexure
B hereto, to be published in the Government Gazette as soon as
practicable after the order is granted.

5. Any person who has an
interest in the property and who intends opposing the application for
an order forfeiting the property to the State or applying for an
order excluding his or her interest from a forfeiture order in
respect of the property, must enter an appearance giving notice of
his or her intention in terms of section 52(3) of the Act.

6. Such notice must be
delivered to the applicant:

6.1 in the case of any person
specifically identified for service in terms of this order, within 21
days of service; and

6.2 in the case of any other
person, 21 days after the date when a notice of the order was
published in the Government Gazette.

7. A notice in terms of section
52 of the Act must contain full particulars of the chosen address for
the delivery of documents concerning further proceedings in this
matter and must be accompanied by an affidavit setting out:

7.1 the full particulars of the
identity of the person giving the notice;

7.2 the nature and extent of
his or her interest in the property concerned;

7.3 whether he or she intends
opposing the making of the forfeiture order, or whether he or she
intends applying for an order excluding his or her interest in that
property from the operation of the order;

7.4 whether he or she admits or
denies that the property concerned is an instrumentality of an
offence referred to in schedule 1 of the Act, or is the proceeds of
unlawful activities and the basis for such defence;

7.5 if he or she intends
applying for the exclusion of his or her interests from the operation
of the forfeiture order, the basis for such an application.

8. Any person who is affected
by the order may on good cause shown, apply by way of application for
reconsideration. Such application shall be made:

8.1 in instances where the
person is able to justify the application on grounds of urgency, upon
3 days notice (or such shorter period as the court may determine on
good cause shown).

8.2 in other instances, upon at
least 7 days notice to the applicant and all other persons identified
in this order as being persons who may have an interest in the
property.

8.3 Such an application must be
made not later than 8 days after the person applying for
reconsideration becomes aware of the existence of the order, or
within such further period as the court may consider reasonable,
bearing in mind the underlying objectives of Chapter 6 of the Act.

9. The international letter of
request annexed as annexure Y is issued by this Honourable
Court in terms of section 23(1) of the International Co-operation in
Criminal Matters Act 9 of 2009.”

[3] When the
respondent’s office sought to effect service of the
preservation order on GMS, he requested the Deputy-Sheriff to serve
it on his legal practitioners who are also the legal practitioners of
record.

[4] On 7 November
2011 Mr Angula of GMS’ legal practitioners wrote a letter to
the respondent, the relevant part of which reads as follows:

“RE:
EX PARTE APPLICATION OF THE PROSECUTOR-GENERAL FOR AN ORDER IN TERMS
OF SECTION 51 OF ACT No. 29 OF 3004 – OUR CLIENT LT-GENERAL
MARTIN SHALLI

We act on behalf of our
abovementioned client in this matter. As you may be aware the ex
parte application papers and Order issued in this matter pursuant to
your application were served on us at our client’s request.

This letter therefore serves as
a formal notice to your office and to take notice of our office
address as the address at which all notices and legal proceedings in
this matter or subsequent applications you may intend to bring
affecting our client’s rights are to be served on our client.

Kindly acknowledge receipt
hereof by counter-signing a copy of this letter served on your
office.”

[5] As requested,
an official at the office of the PG acknowledged receipt of Mr
Angula’s letter on 7 November 2011. The relevant part of the
reply by the Chief Clerk of the PG on 11 November 2011 reads:

“1. We
refer to the abovementioned matter and your letter dated 7 November
2011.

2. We confirm that the order
and the application were served on Mr Angula from your office on the
instructions of Martin Shalli on 11 October 2011.”

[6] On 17 January
2012 the PG filed an ex parte application giving notice that
she intends to apply “in terms of section 59 of POCA” for
an order in the following terms:

“1. To
ratify and or (sic)
condone the appearance of the public prosecutor who appeared on
behalf of the applicant at the hearing of the preservation of
property application under the same case number.

2. That the draft order annexed
hereto as annexure “X” be made an order of Court.

3. Further or alternative
relief.”

[7] The draft
order annexed as annexure “X” is an order in terms of
section 61 of POCA forfeiting to the State the property mentioned in
the preservation order made on 30 September 2011 by SWANEPOEL,
J.

[8] The
application was set down on 20 January 2012, (hereinafter “the
20 January application”). The PG also set down another matter
(Case No. POCA 8/2011) in which she moved for relief in the same
terms as in this case. The PG had filed heads of argument in both
matters and as the issues of law and fact were the same in both
matters as regards the relief sought in prayer 1 of the notice of
motion, I ordered that both matters be argued at the same time.

[9] In her
affidavits filed in support of the two applications, the PG in effect
explains that the public prosecutor who appeared on her behalf when
the preservation orders were obtained, Ms Boonzaier, was not an
admitted legal practitioner. At the time the PG had held the bona
fide but mistaken belief that she was empowered by the provisions
of Article 88(2)(e) of the Namibian Constitution to delegate
authority to a public prosecutor who was not an admitted legal
practitioner to appear in Court in preservation and forfeiture
applications under POCA. The PG explains that the mistake only came
to her attention after these orders were granted. During argument on
20 January presented by Mr Small for the PG it became evident
that although the issue of delegation to a non-admitted
representative had been raised before, the matter only became the
subject of a judgment when MILLER AJ in Case No. POCA 11/2011 held on
2 December 2011 that Ms Boonzaier, not being an admitted legal
practitioner, did not have locus standi to move the
application for the preservation order in that case.

[10] After hearing
Mr Small for the PG on the issue of ratification and condonation as
prayed for in prayer 1 of the notice of motion in each case, I
reserved judgment. Subsequently, it appears that Mr Angula learnt
about the ex parte application heard on 20 January and
addressed a letter to the PG on 2 February 2012 in which he inter
alia referred to the contents of his previous letter dated 7
November and objected to the fact that the 20 January application was
brought ex parte. He requested the PG’s consent to an
urgent re-hearing of the application before me on argument by both
parties.

[11] On 6 February
2012 the PG replied, declining to give such consent, inter alia
relying on the fact that GMS did not give notice of his intention to
oppose the application for a forfeiture order under section 51 of
POCA and did not in several other instances comply with the said
section. (It is common cause that the applicable section is in fact
section 52.) It was further suggested that GMS has an alternative
remedy, and that is to wait for the Court’s judgment, and if a
forfeiture order is granted, to apply for rescission in terms of
section 64(3) and (4) of POCA.

[12] Thereafter
GMS launched an urgent application on 7 February 2012 which was set
down on 23 February 2012 before me. In the present application the
applicant initially sought an order in the following terms:

“1.
Authorising this application to be heard as a matter of urgency, and
condoning any non-compliance with the Rules of this Honourable Court
in terms of Rule 6(12).

2. Directing that the
respondent’s application (under case number POCA 9/2011) to
“condone” and or [sic] ratify” her
irregularly-procured preservation order relating to the applicant,
purportedly in terms of section 51 of Act 29 of 2004 (“the
Act”), and thereafter the application for a forfeiture order
against the applicant, both purportedly heard on 20 January 2012, be
reheard.

3. Declaring that the applicant
is entitled (through his legal practitioners of record) to proper and
adequate notice of such rehearing, and is entitled to be heard at
such rehearing, represented by legal practitioners.

4. Declaring that the
preservation order purportedly obtained against the applicant on 30
September 2011 was irregularly procured, and is without force and
effect.

5. To the extent necessary,
condoning any non-compliance by the applicant with the requirements
of sections 52(3)-(5) of the Act.

6. For further or alternative
relief.

7. For costs of suit.”

[13] The PG
entered notice of opposition, filed answering papers and also gave
notice of a conditional counter application, which is opposed.

[14] On the day of
the hearing, Mr Gauntlett (who appeared with Mr Pelser)
for GMS moved for the following order after presenting argument:

“1.
Paragraph 114 of the respondent’s answering affidavit (at
Record p 228) is struck out as scandalous and vexatious, in terms of
Rules 6(15) and 23(2), with costs on the scale as between attorney
and client and including the costs of two instructed legal
practitioners.

2. The three in limine
points raised by the respondent in her answering affidavit are
dismissed.

3. The application by the
respondent to “condone and ratify” the preservation order
issued under Case no: POCA 9/2011 against the applicant on 30
September 2011, and for forfeiture is dismissed.

4. The order granted by this
Court for preservation of property and related relief (at Record p
24-27) dated 30 September 2011 is set aside as null and void and
without force and effect.

5. The counter-application
lodged on 16 February 2012 by the respondent be dismissed.

6. The respondent is directed
to pay the applicant’s legal costs in relation to the
application and the counter-application, including the costs of one
instructing and two instructed legal practitioners.”

The relevant
legislative provisions under POCA

[15] Chapter 6 of
POCA provides for the preservation and seizure of property as a
preliminary step to an application for forfeiture of such property.
Section 50(1) in Part 1 expressly provides that the proceedings under
this chapter are civil and not criminal proceedings. (This is the
reason why the appearance by Ms Boonzaier was problematic).

[16] Part 2 of the
Chapter contains provisions relating to preservation of property, the
relevant sections for purposes of this case being sections 51, 52 and
58:

“51
Preservation of property orders

(1) The Prosecutor-General may
apply to the High Court for a preservation of property order
prohibiting any person, subject to such conditions and exceptions as
may be specified in the order, from dealing in any manner with any
property.

(2) The High Court must make an
order referred to in subsection (1) without requiring that notice of
the application be given to any other person or the adduction of any
further evidence from any other person if the application is
supported by an affidavit indicating that the deponent has sufficient
information that the property concerned is-

(a) an instrumentality of an
offence referred to in Schedule 1; or

(b) the proceeds of unlawful
activities,

and the court is satisfied that
that information shows on the face of it that there are reasonable
grounds for that belief.

(3) When the High Court makes a
preservation of property order it must at the same time make an order
authorising the seizure of the property concerned by a member of the
police, and any other ancillary orders that the court considers
appropriate for the proper fair and effective execution of the order.

(4) Property seized under
subsection (3) must be dealt with in accordance with the directions
of the High Court.

52 Notice of preservation of
property order

(1) If the High Court makes a
preservation of property order, the Prosecutor-General must, as soon
as practicable after the making of the order-

(a) give notice of the order to
all persons known to the Prosecutor-General to have an interest in
the property which is subject to the order; and

(b) publish a notice of the
order in the Gazette.

(2) A notice under subsection
(1)(a) must be served in the manner in which a summons whereby civil
proceedings in the High Court are commenced, is served or in any
manner prescribed by the Minister.

(3) Any person who has an
interest in the property which is subject to the preservation of
property order may give written notice of his or her intention to
oppose the making of a forfeiture order or apply, in writing, for an
order excluding his or her interest in the property concerned from
the operation of the preservation of property order.

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

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

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

(5) A notice under subsection
(3) must contain full particulars of the chosen address for the
delivery of documents concerning further proceedings under this
Chapter and must be accompanied by an affidavit stating-

(a) full particulars of the
identity of the person giving notice;

(b) the nature and the extent
of his or her interest in the property concerned;

(c) whether he or she intends
to-

(i) oppose the making of the
order; or

(ii) apply for an order-

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

(bb) varying the operation of
the order in respect of that property;

(d) whether he or she admits or
denies that the property concerned is an instrumentality of an
offence or the proceeds of unlawful activities; and

(e) the-

(i) facts on which he or she
intends to rely on in opposing the making of a forfeiture order or
applying for an order referred to in subparagraph (c)(ii); and

(ii) basis on which he or she
admits or denies that the property concerned is an instrumentality of
an offence or the proceeds of unlawful activities.

(6) A person who does not give
notice in terms of subsection (3), accompanied by an affidavit in
terms of subsection (5), within the period referred to in subsection
(4) is not entitled-

(a) to receive, from the
Prosecutor-General, notice of an application for a forfeiture order
in terms of section 59(2); or

(b) subject to section 60, to
participate in proceedings concerning an application for a forfeiture
order.

58 Variation and rescission
of orders

(1) When the High Court has
made a preservation of property order it may vary or rescind the
order if it is satisfied that-

(a) the order concerned-

(i) will deprive the applicant
of the means to provide for his or her reasonable living expenses and
cause undue hardship for the applicant; and

(ii) that the hardship that the
applicant will suffer as a result of the order outweighs the risk
that the property concerned may be destroyed, lost, damaged,
concealed or transferred; or

(b) there is an ambiguity or a
patent error in, or omission from, that order, but only to the extent
of that ambiguity, error or omission.

(2) When a court orders the
variation or rescission of an order authorising the seizure of
property under subsection (1)(a) the court must make such other order
as it considers appropriate for the proper, fair and affective
execution of the preservation of property order concerned.

(3) When the court has made a
preservation of property order it may rescind that order if it was-

(a) erroneously sought or
erroneously made in the absence of the person applying for its
rescission; or

(b) made as a result of a
common mistake of both the Prosecutor-General and the person affected
by that order.

(4) Only the-

(a) Prosecutor-General; or

(b) person affected by a
property preservation order who has given notice in terms of section
52(3) accompanied by an affidavit in terms of section 52(5),

may apply for an order under
subsection (1) or subsection (3).

(5) Any person referred to in
subsection (4)(b) intending to apply for an order under subsection
(1) or (3) must, in the prescribed manner, give notice of that
application to the Prosecutor-General.

(6) A preservation of property
order may not be varied or rescinded on any grounds other than those
provided for in this section.

(7) Any person affected by an
order for the appointment of a curator bonis may at any time apply-

(a) for the variation or
rescission of the order;

(b) for the variation of the
terms of the appointment of the curator bonis concerned; or

(c) for the discharge of the
curator bonis.

(8) Where the High Court has
made an order for the appointment of a curator bonis it-

(a) may, if it is necessary in
the interests of justice, at any time-

(i) vary or rescind the order;

(ii) vary the terms of the
appointment of the curator bonis concerned; or

(iii) discharge the curator
bonis;

(b) must rescind the order and
discharge the curator bonis concerned if the relevant preservation of
property order is rescinded.

(9) Any person affected by an
order in respect of immovable property, made under section 56, may at
any time apply for the rescission of the order.

(10) Where the High Court has
made an order in respect of immovable property it-

(a) may, if it is satisfied
that the operation of the order concerned will cause undue hardship
for the applicant, which hardship outweighs the risk that the
property concerned may be mortgaged or otherwise encumbered, attached
or sold in execution or in any manner disposed of, at any time
rescind the order; or

(b) must rescind the order if
the relevant preservation of property order is rescinded.

(11) If an order in respect of
immovable property is rescinded, the High Court must direct the
registrar of deeds to cancel any restriction endorsed by virtue of
that order on the title deed of immovable property, and the registrar
of deeds must give effect to that direction.

(12) The noting of an appeal
against a decision to vary or rescind any order referred to in this
section suspends that variation or rescission pending the outcome of
the appeal.

[17] Forfeiture of
property is dealt with in Part 3 of Chapter 6. The sections which
were relevant in this matter are sections 59, 60, 61 and 64:

“59
Application for forfeiture order

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

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

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

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

(a) oppose the making of the
order; or

(b) apply for an order-

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

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

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

60 Failure to give notice

(1) Any person who, for any
reason, failed to give notice in terms of section 52(3), within the
period specified in section 52(4) may, within 14 days of him or her
becoming aware of the existence of a preservation of property order,
apply to the High Court for condonation of that failure and leave to
give a notice accompanied by the required information.

(2) An application in terms of
subsection (1) may be made before or after the date on which an
application for a forfeiture order is made under section 59(1), but
must be made before judgment is given in respect of the application
for a forfeiture order.

(3) The High Court may condone
the failure and grant the leave as contemplated in subsection (1), if
the court is satisfied on good cause shown that the applicant-

(a) was unaware of the
preservation of property order or that it was impossible for him or
her to give notice in terms of section 52(3); and

(b) has an interest in the
property which is subject to the preservation of property order.

(4) When the High Court grants
an applicant leave to give notice as referred to in subsection (3),
the Court-

(a) must make an appropriate
order as to costs against the applicant; and

(b) may make an appropriate
order to regulate the further participation of the applicant in
proceedings concerning an application for a forfeiture order.

(5) A notice given after leave
has been obtained under this section must contain full particulars of
the chosen address of the person who gives the notice for the
delivery of documents concerning further proceedings under this
Chapter and must be accompanied by the affidavit referred to in
section 52(5).

61 Making of forfeiture
order

(1) The High Court must,
subject to section 63, make the forfeiture order applied for under
section 59(1) if the court finds on a balance of probabilities that
the property concerned-

(a) is an instrumentality of an
offence referred to in Schedule 1; or

(b) is the proceeds of unlawful
activities.

(2) The High Court may, when it
makes a forfeiture order or at any time thereafter, make any
ancillary orders that it considers appropriate, including orders for
and with respect to facilitating the transfer to the State of
property forfeited to the State under the order.

(3) The absence of a person
whose interest in property may be affected by the forfeiture order
does not prevent the High Court from making the order.

(4) Any person who has entered
a notice in terms of section 52(3) and whose interest in the property
concerned is affected by a forfeiture order made in his or her
absence under subsection (3), may, within 20 days after he or she has
acquired knowledge of that order, apply for variation or rescission
of the order.

(5) On good cause shown in an
application referred to in subsection (4), the High Court may vary or
rescind the order made under that subsection or make some other
appropriate order.

(6) The validity of an order
under subsection (1) is not affected by the outcome of criminal
proceedings, or of an investigation with a view to institute those
proceedings, in respect of an offence with which the property
concerned is in some way associated.

(7) The registrar of the High
Court must publish a notice of the forfeiture order in the Gazette as
soon as practicable after it is made.

(8) A forfeiture order under
subsection (1) does not take effect-

(a) before the period allowed
for an application under section 65 or an appeal under section 66 has
expired; or

(b) before an application or
appeal referred to in paragraph (a) has been disposed of.

64 Forfeiture order by
default

(1) On application by the
Prosecutor-General for a forfeiture order by default, the High Court
may, if it is satisfied that no person has given notice in terms of
section 52(3), make any order that the court could have made under
section 61(1) and (2).

(2) The High Court may, before
making an order in terms of subsection (1), call on the
Prosecutor-General to adduce any further evidence, either in writing
or orally, in support of his or her application.

(3) Any person whose interest
in the property concerned is affected by a forfeiture order or other
order made under subsection (1) may, within 15 days after he or she
has knowledge of the order, apply to the High Court for a rescission
or variation of the order.

(4) On receipt of an
application under subsection (3), the High Court may, on good cause
shown, rescind or vary the default order and make any other order
which is appropriate in the circumstances.”

The PG’s
points in limine

[18] Mr
Labuschagne on behalf of the PG raised three points in
limine.

The first point
in limine

[19] This point
was raised in the papers in the event that the present application is
allocated to a different judge than me. Both parties were in
agreement that, as I had heard the first application, I should also
hear the present application. In the premises, this point fell away.

The second
point in limine

[20] This point
constitutes an attack on the alleged urgency of the present
application. GMS states in his founding affidavit that the
application is urgent because (i) judgment in the 20 January
application may be handed down at any time; (ii) what transpired at
the 20 January application entailed an infringement of his
constitutional and statutory rights in several important respects;
and (iii) it is undesirable from the point of view of the
administration of justice that uncertainty and delay should take
place in relation to obtaining finality as to whether his property is
to remain under preservation and to be permanently forfeited.

[21] In the
answering papers the PG makes the general statement that GMS does not
make out a case for urgency. She adds that, if there is any urgency,
it is self-created as GMS failed to comply with the statutory
provisions of section 52 of POCA and the terms of the preservation
order requiring GMS to give notice of his intention to oppose the
forfeiture proceedings by following the provisions of section 52.

[22] GMS’
case is that the letter by Mr Angula, coupled with the application
for condonation of certain defects as set out in the founding
affidavit, qualifies as such a notice of his intention to oppose,
which entitles him to a re-hearing of the first application. As such
it forms part of the merits of the present application. I agree with
Mr Gauntlett that this part of the attack on urgency involves
a defence by the PG on the merits of the application. The legal
position is clear – urgency is to be assessed on the basis that
the applicant’s case is good and that he has a right to the
relief he seeks. (See Twentieth Century Fox Film Corporation and
Another v Anthony Black Films (Pty) Ltd 1982 (3) SA 582 (W) at
586G; Bandle Investments (Pty) Ltd v Registrar of Deeds and others
2001 (2) SA 203 (SE) at 213E-F; approved in Mweb Namibia (Pty) Ltd
v Telecom Namibia Ltd and others (unreported Full Bench judgment
delivered on 31 July 2007 in Case No. A91/2007). In the premises this
attack on urgency cannot be upheld.

[23] The PG has
two further arrows to direct at the allegations of urgency. Firstly
she points out that Mr Angula already knew of MILLER AJ’s
judgment in December 2011 and shortly thereafter advised GMS of it,
but that there is no explanation why the preservation order was not
challenged earlier. In reply GMS states that Mr Angula advised him
that the PG would either appeal against the said judgment or apply
for a preservation order afresh and that the new application would be
served on GMS on Mr Angula’s office. The clear implication is
that GMS expected notice to be given of any application under POCA.
It is precisely the fact that no notice was given and that the
subsequent first hearing took place which renders the present
application urgent. This arrow in my view misses the mark.

[24] The second
arrow points to the fact that GMS’ funds in his Zambian account
with Standard Chartered Bank had already been frozen since May 2009
as a result of a seizure by the Zambian authorities, but that there
is no explanation why the application only now has become urgent. It
seems that this arrow is aimed at the allegation by GMS in para. 48
of his founding affidavit that “it is undesirable (as regards
the administration of justice) that uncertainty and delay should take
place in relation to obtaining finality as to whether my property is
to remain under preservation and indeed to be permanently forfeited.”
This issue was only raised in the PG’s heads of argument
without making the point in the answering papers. GMS therefore could
not deal with it in reply. This attack was also not mentioned in oral
argument. I therefore do not intend to deal with it any further
except to state that, even if this attack were sound, there are other
reasons, namely those mentioned in connection with the judgment
expected in relation to the 20 January application, that are
sufficient to make out a case for urgency.

[25] I further
note that the PG’s suggestion in her letter dated served 6
February 2012 that a rescission application under section 64 would
take care of GMS’s concerns was not pertinently raised in the
answering papers and no argument was directed at it either in the
PG’s heads of argument or during oral submissions at the
hearing. In any event on GMS’s case any forfeiture order would
not be a true default order and any section 64 application could,
arguably, only deal with rescission of the forfeiture order and not
the preservation order.

[26] The result is
therefore that this point is dismissed and the application is
considered to be urgent.

The third point
in limine

[27] In her
answering affidavit the PG states:

“11.
The preservation order that was served on the applicant on 11 October
2011 specifically mentions that if the applicant intends to oppose he
needs to comply with the provisions of section 52(3) of POCA read
with section 52(2) of POCA.

12. Secondly, annexure A to the
Court Order was also served on the applicant. In terms of this
annexure the applicant’s attention was yet again drawn to the
provisions of Sec 52 of POCA.

13. Only a person who enters
such an appearance in terms of Sec 52 of POCA is entitled to receive
notice of the forfeiture application and is allowed to participate in
proceedings concerning the forfeiture. Sec 52(5) requires an
affidavit in which the deponent needs to deal with the merits of the
forfeiture or the basis for exclusion of his interests from the
preservation order.

14. Neither the applicant nor
his attorney filed such a notice. Annexure “C” to the
founding affidavit is not a notice as envisaged by Sec 52(3) and
52(5) of POCA It is respectfully submitted that the applicant is, by
virtue if his failure to enter an appearance under Sec 52 of POCA,
precluded from participation in and appearing in the forfeiture
proceedings. The applicant has, by its mere reliance on annexure “C”
to the founding affidavit, sought to elevate his position to a party
who has complied with Sec 52 of POCA, while he is not, and
particularly, where he has failed to disclose what is required by Sec
52(5) of POCA – inter alia without disclosing his
interest in the property (Sec 52(5)(b)) or whether he makes the
admissions or not referred to in Sec 52(5)(d) and the facts on which
he opposes (Sec 52(5)(e)).

15. I respectfully submit that
the applicant’s application should be dismissed with costs.”

[28] Expanding
upon these contentions in the heads of argument, Mr Labuschagne
submitted that the third point in limine, in essence, amounts
to a question of locus standi. In summary the argument is
that, absent compliance with section 52 of OOCA, the applicant is not
entitled to be heard and therefore lacks locus standi.

[29] I agree with
Mr Gauntlett’s submission that the applicant clearly has
locus standi based on the common cause fact that he has an
interest in the property being the subject of the preservation order
and the forfeiture application. The issue of whether he is entitled
to be heard is part of the merits of the case and not to be disposed
of by way of a point in limine. In any event, for the reasons
provided below I am on the view that a failure to comply with section
52, even in the absence of a successful application for condonation
for such failure, does not disentitle GMS to be heard on at least
some of the issues to be decided. The third point in limine is
therefore dismissed.

The merits of
the application

Was GMS
entitled to notice of the 20 January application and is he entitled
to be heard in the current application?

[30] In his
application GMS states that the first hearing took place in breach of
the request by his legal practitioners that they be served with all
further legal notices and proceedings. He states that, had he been
given notice, he would have opposed the application and advanced
legal argument through counsel of his choice.

[31] He points out
that the PG in no respect challenged the contents of Mr Angula’s
letter. Particularly, she nowhere suggested that the letter did not
comply with paragraphs 5, 6 and 7 of the preservation order. He
states that the notification by Mr Angula was implicitly accepted as
effective and compliant. He submits that, had the PG intended to
convey otherwise, she would have noted the contents of the letter
under reservation of rights or stated directly that it was not
accepted. Furthermore, the PG did not indicate that she would not,
contrary to what was requested, give notice and effect service of all
applications relating to GMS at the offices of LorentzAngula Inc. GMS
submits that the PG was “as a matter of professional propriety,
procedural fairness and law” bound to have rejected M Angula’s
request for service if her office had no intention of acceding to the
request.

[32] GMS draws a
distinction between the two kinds of relief sought in the 20 January
application. He contends that there were essentially two applications
before the Court on that day: the first is what he refers to as the
condonation/ratification application and the second is the forfeiture
application. The PG agrees with this distinction and admits that
there were two applications.

[33] GMS
emphasises that the PG realized and admitted in the founding
affidavit that the relief sought in prayer 1 is indispensable for the
relief in prayer 2 to be obtained – in other words, while
recognizing that a valid preservation order is an indispensable
requisite for an application to obtain a forfeiture order, it is
vital to the PG’s case in the 20 January application that she
succeeds with the condonation/ratification application. The PG does
not take issue with these contentions.

[34] GMS’s
case is that there was no need to comply with section 52 of POCA in
relation to the condonation/ratification application and that the
cumulative effect of Mr Angula’s letter and the PG’s
response thereto is such that the PG is to be taken to have agreed to
the request made regarding notice and service of any application,
alternatively that a reasonable impression was created in the minds
of Mr Angula and GMS that notice and service of any application would
follow.

[35] As regards
the forfeiture application GMS submits that there has been material
compliance with the requirements of section 52(3) such as to entitle
him to notice and service. In the alternative it is contended that
the conduct of the PG’s office in the circumstances constituted
a waiver of any deficiency in compliance or that the PG is estopped
from evoking any deficiency. In the lat alternative the contention is
that any deficiency may be condoned.

[36] In summary it
may be stated that the PG denies all these contentions and emphasises
that GMS is not entitled to notice or to be heard because he has not
complied with section 52 of POCA. As to the alternative submissions,
she denies any waiver of the statutory requirements of POCA or that
she has entered into any inferred or implied arrangement to give
notice. She further submits that GMS cannot rely on estoppel to allow
a contravention of the notice provisions of POCA.

[37] It seems to
me that the first issue to be decided is whether the
condonation/ratification application is an application under POCA. It
is common cause that there is no provision in POCA expressly
providing for such an application. Although the notice of motion
states that the application is made in terms of section 59, which
deals with forfeiture applications, the PG does not persist with this
stance in the present application, in my view correctly so. She
states in her answering affidavit that the irregularity sought to be
condoned/ratified falls within the ambit of section 58(3) of POCA,
which provides that a preservation order may be rescinded (a) if it
was erroneously sought or erroneously made in the absence of the
person applying for its rescission; or (b) made as a result of a
common mistake of both the PG and the person affected by that order.
This was also insistently argued on her behalf by Mr Labuschagne,
who relied more specifically on section 58(3)(a).

[38] In my view
the reliance is clearly misconceived. Firstly the PG is not seeking
to rescind the preservation order, but to condone or ratify it.
Secondly, on the PG’s case made out on 20 January the order was
not sought or made “in the absence of” the person
applying for its rescission (if for the purposes of argument it is
assumed that rescission is the relief sought) as the application for
the preservation order was brought under section 51 of POCA in the
name of the PG.

[39] Mr
Labuschagne also sought to rely on section 58(1)(b) which
provides that this Court may vary or rescind a preservation order if
it is satisfied that there is an ambiguity or a patent error in, or
omission from, that order, but only to the extent of that ambiguity,
error or omission. However, the problem here is also that there was
no attempt on 20 January to rescind or vary the preservation order.
Nor was there a “patent error” in the order itself. The
fact that in the preamble to the order reference is made to “Ms
Boonzaier, counsel for the applicant” is not a patent error in
the order.

[40] In her
affidavit the PG makes the allegation that the
condonation/ratification application is “incidental” to
the preservation order. In my view this is not correct. Assuming for
the moment that the application is in principle well conceived, it is
clear that it is to be considered as a substantive application and
not merely seeking to condone certain procedural defects related to
the preservation order or proceedings as such. The application seeks
to condone or ratify the appearance on behalf of the PG by a person
who is not an admitted legal practitioner in proceedings where that
person is required to be so admitted. The fact that these proceedings
were POCA proceedings is merely incidental to the issue at hand and
not intrinsically related to the relief sought in the
condonation/ratification application. In my view this application is
not an application under POCA nor does it constitute POCA
proceedings.

[41] However, if I
am wrong in coming to this conclusion, I find in the alternative that
the condonation/ratification application is not POCA proceedings
requiring GMS to have complied with section 52. In this regard I
agree with the contention made by GMS that the provisions in section
51(2) ousting his right to be heard in relation to a preservation
application in certain circumstances do not extend to what was
brought as a separate application nearly three months after the
preservation application itself had been brought and granted. The
wording of section 51(2) do not expressly of by necessary implication
provide for such an ouster.

[42] I further
agree with the submissions made on behalf of GSM that the ousting of
all right to notice and the opportunity to be heard constitutes an
infringement of fundamental rules under the common law and the
Constitution. Where such rights are to be infringed in terms of a
statute a clear indication must be given. POCA contains several clear
and express provisions excluding notice and entitlement to be heard,
e.g. section 25(2), 51(2) and 52(6)(a). Where such notice is not
clearly excluded a Court should interpret the Act in a manner
consistent with the Constitution.

[43] In my view
the condonation/ratification application should have complied with
the ordinary rules of this Court, either providing for notice in
terms of rule 6 or laying a proper basis in the application itself
why it is to be considered ex parte, in which case
consideration would have been given to issue a rule nisi. In
this regard I note that the Judge-President has specifically provided
in rule 2 of the rules for the High Court regulating proceedings
contemplated in Chapters 5 and 6 of POCA made in terms of section 90
of POCA that, except where POCA provides for the procedure for
proceedings contemplated in Chapters 5 and 6 and unless otherwise
stated in those rules or the regulations made under section 100 of
POCA, the Rules of the High Court apply, with necessary changes, in
relation to those proceedings. (See Government Notice 79 of 5 May
2009 in Government Gazette No. 4254). I can find no contrary
provisions in the POCA rules or regulations (For the regulations see
Government Notice 78 of 5 May 2009 published in the same Government
Gazette).

[44] In the
condonation/ratification application no basis was laid for it to be
brought ex parte other
than a reliance on sec 52. The conclusion I have reached is that the
PG should have given notice of this application and that GMS is
entitled to be heard on this application.

Should the
condonation/ratification application be granted?

[45] When the
present application was called Mr Gauntlett
placed on record that Mr Labuschagne
shortly before had most properly disclosed on behalf of
the PG that the notice of motion in the preservation application
granted by SWANEPOEL, J had in fact been signed by Ms Boonzaier.
Counsel accepted that this was the first opportunity Mr Labuschagne
had to make such disclosure, but not that it was the
first opportunity that the PG had. I shall return to this aspect
later.

[44] This
disclosure placed a different slant on the condonation/ratification
application, which was only concerned with the appearance by Ms
Boonzaier. However, it is common cause that the application must now
be considered to also include the issue of the notice of motion not
having been signed by an admitted legal practitioner.

[45] Mr Gauntlett
brought to my attention in the heads of argument the
cases of Compania Romana De Pescuit (SA) v
Rosteve Fishing (Pty) Ltd and Tsasos Shipping Namibia (Pty) Ltd
(Intervening): In Re Rosteve Fishing (Pty) Ltd v Mfv 'Captain B1',
her owners and all others interested in her 2002
NR 297 (HC) and Maletzky v Attorney-General
(Unreported judgment by SHIVUTE, J delivered
on 29 October 2010 in Case No. A298/2009) in which the Courts
considered the issue of legal process, specifically in application
proceedings, signed by persons not admitted as legal practitioners to
be null and void ab initio. He
submitted on the basis of these authorities that the short answer to
the condonation/ratification application is that the original
preservation application is null and void ex
tunc and not capable of condonation.

[46] Mr
Labuschagne echoed in many respects the argument presented to
me during the 20 January 2012 application. While it was conceded that
irregularities occurred, the argument sought to cast the irregularity
of both the invalid notice of motion and the fact of the appearance
by Ms Boonzaier to move the preservation application on 30 September
2011 in a less serious light. It was submitted with reference to S
v Shikunga 2000 (1) SA 616 (NmS)(also reported as S v Shikunga
1997 NR 156 (SC)) that a distinction should be made between
fundamental and non-fundamental irregularities which taint a verdict
(in the broad sense of the word) and non-fundamental irregularities
which do not taint the verdict.

[47] The Court was
requested to “contextualize” the irregularity by having
regard to the purpose of POCA and the fact that the PG has made an
affidavit in support of that application which led another Court to
the conclusion that there were reasonable grounds to believe that the
property to be preserved is the proceeds of unlawful activities. It
was submitted that the PG is a sui generis litigant acting in
the public interest under POCA and that, bearing all the aforegoing
in mind the irregularity in the appearance at the ex parte
stage of the preservation proceedings was not of a fundamental nature
tainting the preservation order granted.

[48] As far as the
irregularity regarding the signing of the notice of motion is
concerned, counsel merely stated that “we are aware of the
Maletzky judgment”
and sought to make an argument on the basis that SHIVUTE, J
did not consider the approach set out in Shikunga.

[49] Counsel
further sought to distinguish the case of S v
Mkhise 1988 (2) SA 868 (AD) on which Mr
Gauntlett also relied
from the instant case on the basis that in Mkhise
the irregularity considered fatal of accused persons
being represented by a non-admitted person was considered after the
criminal trials in which the accused had been convicted and sentenced
had been concluded. In contrast, it was submitted, the
preservation proceedings is only the first step in proceedings
intended to culminate in a forfeiture order and which proceedings are
subject to judicial scrutiny and control under POCA. As such the
considerations relevant to the irregularity pertaining thereto are
submitted to be inherently different to those of the accused in
Mkhise.

[50] While I agree
that all irregularities do not necessarily have a vitiating effect
and while I further agree that in general the context in which
irregularities occur is a relevant consideration, it is my view that
the irregularities under consideration here are fatal. In this regard
I respectfully agree with what was stated by MARITZ, J in
the Compania Romana case
when he considered earlier authorities in which the courts had
stressed the importance to the administration of justice of only duly
admitted legal practitioners representing parties and signing process
as required by the relevant rule at 300B-303G and then concluded by
saying:

“Given
the compelling policy considerations behind s 21(1) of the Legal
Practitioners Act, 1995 and the formulation, scope and object of the
section, I am of the view that the Legislature intends that if a
person, other than a legal practitioner, issues out any process or
commences or carries on any proceeding in a court of law in the name
or on behalf of another person, such process or proceedings will be
void ab
initio.
The view I have taken corresponds with the rules of practice in this
Court. Any 'looseness' in the enforcement of the well-established
practice and of the Rules of Court in that regard is likely to bring
the administration of justice into disrepute, erode the Court's
authority over its officers and detrimentally affect the standard of
litigation.”

[50] In my view
the distinction sought to be drawn in relation to the facts in Mkhise
does not detract from the fundamental and powerful policy
considerations regarding the administration of justice and the
authority of the Courts expressed in the extract quoted above. I
therefore hold that the fact that the notice of motion was signed by
a person not admitted as a legal practitioner is a fatal irregularity
which renders the preservation application null and void ab
initio. As such it cannot be condoned or ratified.

[51] The further
result is that the preservation order must be set aside as being
invalid. It therefore follows that the forfeiture application cannot
succeed. It is not necessary in these circumstances to deal with the
issue of whether GMS was entitled to notice and to be heard regarding
the forfeiture application.

The non
disclosures by the PG

[52] Mr Gauntlett
listed several instances in which there was material
non-disclosure of matters that should have been disclosed by the PG
or on her behalf. The first issue is the very belated disclosure that
Ms Boonzaier signed the preservation application. In this regard I
must unfortunately state that Ms Boonzaier was in present in Court
when the 20 January application was heard and assisted Mr Small from
time to time from the public gallery. She heard the argument
presented that the irregularity of her appearance should be condoned
as a mere technical irregularity because it is the PG herself who
made the application and the supporting affidavit which has already
been considered to be satisfactory by another Court which gave the
preservation order. She must have realised the importance of
disclosing the correct facts, but it was not done.

[53] A further
aspect is that when it was placed on record on 23 February that she
had signed the preservation application, I merely took note of it
without realizing at the time that the notice of motion was not only
signed by Ms Boonzaier, but was signed, not per procurationem, but
as the PG herself, i.e. under her purported signature. This fact was
also not pertinently disclosed. I only came to realize this at a
relatively late stage of preparing the judgment. The most
disconcerting aspect about it is that the purported signing in the
PG’s name conceivably amounts to a fraudulent act or even
forgery and may have obstructed the course of justice. It may also
constitute an offence under the Legal Practitioners Act. There has
been no explanation whatsoever regarding the circumstances under
which the notice of motion was signed by Ms Boonzaier or when and how
it was discovered or realized. In the circumstances I regrettably
have no other choice but to refer the matter to the Inspector-General
of the Namibian Police for investigation.

[54] The second
aspect about which there has been inadequate disclosure relates to
the fact that the Court’s attention was not drawn to easily
available and potentially binding legal authority highly relevant to
the legal issues in this matter. I refer specifically to the Compania
Romana case which is reported in the Namibian law reports. The
Mkhize case hails from the Appellate Division before
Independence and is still binding on this Court, but was not
mentioned although Mr Small indicated that he was familiar with the
case. The Maletzky case is recent and not reported and may not
have been so easy to trace, but it is available on a recognised site
on the internet where one may reasonably expect research to be done
especially where ex parte applications are brought and moved.
The duty of an applicant in such cases is trite. Also regarding this
aspect there has been no explanation or apology.

[55] The manner in
which the issue of Mr Angula’s letter was dealt with in the 20
January 2012 application is another issue. The contents of the letter
were not disclosed in the PG’s founding affidavit and the PG’s
reply was not properly marked and dealt with in the affidavit. All
that is said about Mr Angula’s letter is that it confirms that
the application was served on them at the request of GMS. This is by
no stretch of the imagination an accurate reflection of the essential
contents of the letter, which was to make a request for notice and
service of any applications against GMS. This request was never
answered to the point of substance as one would expect. Instead the
essence of the request in Mr Angula’s letter was studiously
ignored, but a red herring reply was sent, presumably for tactical
reasons, merely confirming that the court order and application were
served on him on the instructions of GMS. No wonder Mr Angula thought
all was well.

[56] I must not be
misunderstood to exonerate Mr Angula, who regrettably did not serve
his client well by not properly reading or following the clear
indications in the preservation order regarding the requirements of
section 52. However, the point is that if I had known that his letter
had not been replied to on the point of substance raised in it, I may
very well have dealt with the matter differently than I did. I may
very well have required notice of the condonation/ratification
application to be given to GMS. I may also very well have considered
the issue of the forfeiture order in a different light.

[57] It serves no
purpose merely to state, as was done in the present application that
Mr Angula’s letter was “before” the Court on 20
January. Yes, it formed part of the papers, but that is not
sufficient if attention is not properly drawn to it and argument
advanced on the merits and demerits of its contents as a ground to
give or not give notice of the application. As it is I did not see
the letter and even if I did, I would have expected that the relevant
issues regarding its significance or otherwise should have been
pertinently addressed in argument by the PG. This even more so when
one takes into consideration that this matter served on the first
motion court roll after the Christmas recess and the roll was
particularly heavy with an urgent application heard earlier that
morning. It cannot be expected of a judge in such circumstances to
fine comb every annexure in all applications serving on the roll.

[58] This Court
was at pains in Prosecutor-General v Lameck 2010 (1) NR 156
(HC) to point out the onerous duty resting on applicants generally
and specifically the PG under POCA concerning disclosure in ex parte
applications as follows:

“[24]
A party approaching the court ex parte must make a full and frank
disclosure of all the relevant facts and must act bona fide. Le Roux
J deals with the effect of material non-disclosure in ex parte
applications in the case of Schlesinger
v Schlesinger
1979 (4) SA 342 (W) at 349A 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 wilful 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.'

He then adds at 350B:

'It appears to me that unless
there are very cogent practical reasons why an order should not be
rescinded, the Court will always frown on an order obtained ex
parte on incomplete information and will set it aside even if
relief could be obtained on a subsequent application by the same
applicant.'

[59] In fact in
the Lameck case it was material non-disclosure which led to
the rule nisi being discharged. Looking at the instances of
material non-disclosure in the present matter, it would appear as if
the Lameck case fell on deaf ears. In any event, I agree with
Mr Gauntlett that also in this case the 20 January application
falls to be dismissed on this basis.

The striking
out application

[60] GMS gave
notice that he intends applying in terms of rule 23(2) for the
striking out of the first sentence of paragraph 114 of the
respondent’s answering affidavit (which reads “It is
quite irregular and unethical to request the Registrar to inform a
Judge not (sic) to deliver a judgment”) on the ground
that it is scandalous, vexatious and/or irrelevant.

[61] The
application is opposed. Mr Labuschagne pointed out that the
reference to rule 23(2) is incorrect as that rule concerns action
proceedings. The correct rule is rule 6(15), which Mr Gauntlett
orally conceded and corrected. In my view nothing turns around the
reference to the wrong rule.

[62] More
importantly, Mr Labuschagne pointed out that the application
does not state what prejudice GMS will suffer if the application is
not granted as contemplated by rule 6(15). He also submitted that the
complaint is actually the complaint of the applicant’s lawyer,
as the allegation concerns him and not the applicant. He explained
that the statement in paragraph 114 was made in response to the
underlined words in the following statement in paragraph 50 of the
founding affidavit:

“I do
not however wish to disrupt this Court’s roll more than is made
essential by the circumstances of the matter. I
expect that the Registrar will notify Justice Van Niekerk upon the
filing of this application, and that Justice van Niekerk may further
be expected not to hand down judgment until this application is
determined.
How this matter is best to be regulated is, I am advised, in the
inherent jurisdiction of the Court.........”

[63] Mr
Labuschagne submitted that it was in order for GMS to bring an
application to stay the judgment but not to send a message via the
Registrar that the judgment should not be delivered. It was denied
that the intention was to send a message via the Registrar, but
merely that an expectation was merely expressed that the Registrar
would as a matter of practicality and convenience of the Judge inform
her of the application to be brought. I accept it in this sense and
that the intention was not to influence me improperly.

[64] In my view
the allegation sought to be struck may be interpreted as imputing
unethical behaviour to the applicant by virtue of the conduct of his
legal practitioner. Although prejudice is not alleged in so many
words, the prejudice is manifest and I uphold the application to
strike, but not with a punitive costs order.

The PG’s
conditional counter application

[65] The PG gave
notice of a conditional counter-application which would become urgent
in the event that the Court sets aside the preservation order. Some
argument was addressed on this issue. The complaint on behalf of GMS
was mainly addressed against urgency and that he was not granted
sufficient time to obtain legal advice and file proper papers. In my
view it is premature to consider the counter-application in any
detail at this stage. I shall consider the application if it is moved
when judgment is delivered. I might mention that it is my intention
to propose that a rule nisi be issued in order to be fair to
both parties. This will secure the property in the interim and also
give GMS an opportunity to oppose the relief, should he wish to with
sufficient time at his disposal.

[66] To sum up,
the following order is made:

1. 
   Paragraph 114 of
   the respondent’s answering affidavit is struck out as
   scandalous and vexatious, with costs, including the costs of one
   instructing and two instructed counsel.

   
   

2. 
   The three in
   limine points raised by the respondent in her answering
   affidavit are dismissed.

   
   

3. 
   The application
   by the respondent to condone and ratify the preservation order
   issued under Case no: POCA 9/2011 against the applicant on 30
   September 2011, and for forfeiture is dismissed.

   
   

4. 
   The order granted
   by this Court for preservation of property and related relief dated
   30 September 2011 is set aside as null and void and without force
   and effect.

   
   

5. 
   The Registrar is
   directed to forward a copy of this judgment to the Inspector-General
   of the Namibian Police for an investigation into the conduct of Ms
   Boonzaier when she signed the notice of motion in the preservation
   application.

   
   

6. 
   The conditional
   counter-application lodged on 16 February 2012 by the respondent
   stands over for determination after this judgment is given.

   
   

7. 
   The respondent is
   directed to pay the applicant’s legal costs in relation to the
   application, including the costs of one instructing and two
   instructed counsel.

   
   

_________________________

VAN NIEKERK, J

Appearance for
the parties

For the applicant:
Mr J J Gauntlett SC

and with him Mr F
B Pelser

Instr. by
LorentzAngula Inc

For the
respondent: Mr E C Labuschagne SC

Instr. by
Government Attorney