REPORTABLE
CASE
NO. A 25/2009
SUMMARY:
SAMCO
IMPORT & EXPORT CC 1ST
APPLICANT
SHAMIL
DIRK 2ND
APPLICANT
and
THE
MAGISTRATE OF EENHANA 1ST
RESPONDENT
THE
INSPECTOR-GENERAL: NAMBIAN POLICE 2ND
RESPONDENT
THE
STATION COMMANDER: OHANGWENA 3RD
RESPONDENT
THE
MINISTER OF SAFETY & SECURITY 4TH
RESPONDENT
THE
PROSECUTOR-GENERAL 5TH
RESPONDENT
HOFF,
J
2009/02/18
Application
– seizure of article in terms of the provisions of sections of
sections 20 and 21 of the Criminal Procedure Act 51 of 1977 as
amended.
Description
of article in search warrant overbroad and too general – warrants
set aside for this reason alone.
In
addition search warrants were addressed “to
all policemen”.
Section 21 (2) authorizes “a
police official”
to seize an article.
Section
21 to be read together with provisions section 29 which provide that
search shall be conducted with strict regard to decency and order –
this can only be achieved if a known
and named police
official is empowered to execute warrant.
A
fundamental consideration demanding a strict interpretation of the
provisions of section 21 is that those provisions may result in a
serious encroachment on the rights of those who are subjected to
them.
Search
warrants addressed to “all
police officials”
and not to a specific officer or specific officers do not comply with
the provisions of section 21 and are for that reason alone, invalid.
The
word “seize”
encompasses the act of taking possession of an article as well as the
subsequent detention thereof.
Generally
speaking, Courts will not sanction unlawful seizures – where such
seizures have occurred orders would be issued for the return of the
seized articles – does not mean that where possession of an article
would constitute an offence person could be legally permitted to
possess it – instead it means that the police have to start afresh
in seizing article and acting in compliance with requirements of the
law regulating seizures.
Award
of costs wholly within discretion of Court.
One
of grounds upon which a court may make a special order as to costs is
where conduct of litigant is deplorable and highly contemptuous of
the Court. Respondents in contempt of previous Court order.
In
casu respondents
manifested a stubborn and defiant attitude despite fact that they had
been advised to comply with Court order – costs awarded on
attorney-client scale.
CASE NO. A
25/2009
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
SAMCO
IMPORT & EXPORT CC 1ST
APPLICANT
SHAMIL
DIRK 2ND
APPLICANT
and
THE
MAGISTRATE OF EENHANA 1ST
RESPONDENT
THE
INSPECTOR-GENERAL: NAMIBIAN POLICE 2ND
RESPONDENT
THE
STATION COMMANDER: OHANGWENA 3RD
RESPONDENT
THE
MINISTER OF SAFETY & SECURITY 4TH
RESPONDENT
THE
PROSECUTOR-GENERAL 5TH
RESPONDENT
CORAM: HOFF,
J
Heard
on: 29.01.2009; 02 – 03.02.2009;
Delivered
on: 2009.02.04
Reasons provided on: 2009.02.18
JUDGMENT:
HOFF,
J: [1] This
Court heard an urgent application at 15h00 on 2 February 2009. The
matter was postponed, on application by counsel acting on behalf of
the respondents, to 3 February 2009 and this Court gave its ruling at
10h00 on 4 February 2009, indicating then that reasons would be
provided to any party requesting such reasons. This Court now has
received such a written request from Mr Khupe who appeared on behalf
of the respondents.
The
order of this Court pronounced on 4 February 2009 reads as follows:
“2. That
a Rule Nisi
is issued, calling upon all the respondents to show cause, if any at
10h00 on 13 March 2009 why the following order should not be granted
and confirmed:
2.1 That the search warrant
issued by first respondents on 30 January 2009 is hereby declared
invalid, unlawful and set aside and that all or any steps that may
have been taken on the basis of the said search warrant is set aside;
That the second, third and
fourth respondents are ordered to restore first applicant’s safe
with immediate effect, which it removed pursuant to the aforesaid
warrant from first applicant’s business premises;
2.3 That the first, second
and third respondents are interdicted and restrained from taking any
further steps against the applicants in relation to this matter
and/or from interfering with the business or business premises and/or
the peaceful occupation by first applicant of its business and/or
second applicant of his flat.
2.4 That
the 4th
Respondent, the Minster of Safety and Security is ordered to pay the
costs of this application on attorney client scale. No costs order
is made in respect of the other respondents.
3. That the order in terms
of paragraphs 2.1 – 2.3 shall serve as an interim interdict with
immediate effect, pending the finalisation of both urgent
applications.”
[2] I shall
refer to this order as the second order.
This
Court gave a previous order (which will be referred to as the first
order) approximately at 15h30 on 29 January 2009.
This
first order reads as follows:
“2. That
a Rule Nisi
do hereby issue calling upon all the Respondents to show cause, if
any, on Friday the 13th
of March
2009, as to
why the following orders should not be granted and confirmed:
2.1 Declaring
the warrant of search by the first respondent on 28th
of January 2009 to be invalid and unlawful and setting aside it and
any step that may have been taken on the basis of the said warrant of
search.
2.2 Ordering
the second and third respondent to restore the first applicant’s
keys of its business premises at Oshikango to the second applicant.
2.3 Declaring
the arrest and detention of the second applicant as unlawful and
invalid and setting aside same with any steps and processes that may
have been taken and issued, following the second applicant’s arrest
and detention.
2.4 Ordering
the immediate release of the second respondent from custody.
2.5 Pending the
finalization of this application no steps shall be taken to arrest
the second applicant in relation to this matter and/or interfere with
the first applicant’s business premises and/or its peaceful
occupation.
2.6 That copies
of this application an order be served by the Deputy Sheriff of
Windhoek within the next 2 days to the respondents and that the copy
of the second applicant’s found affidavit be used at this hearing
and its original be filed and served to the respondents before the
return date.
2.7 Costs of
suit to be paid by any of the respondents that opposes this
application.
3. That
orders under paragraph 2.1 to 2.7 serve as interim relief.”
[3] When
the first application was heard Mr Marcus who appeared on behalf of
the 2nd
and 3rd
respondents informed the Court that he held no instructions whether
to oppose the application or not since he received the application
documents on short notice. He however did not apply for a
postponement of the application.
[4] The
second applicant in his founding affidavit narrated the background to
the launching of this second application as follows:
He
is a businessman with a number of business interests in the northern
part of Namibia the main two being “Dirk
Fruit” at Oshakati
and the first applicant’s business at Oshikango. The first
applicant’s major customers from Angola represent about 95% of its
customers. “Dirk
Fruit” at Oshakati
generates approximate N$500.000.00 per month. First applicant’s
income from sales per month is about N$8 to N$ 9 million and
expenditure amounts to about N$7 to N$8 million per month.
[5] It is
common cause that second applicant was approached at first
applicant’s business on 28 January 2009 at around 13h00 by members
of the Namibian Police Force who were accompanied by an Angolan
national (later known as one Domingos Jamba, hereinafter referred to
as Jamba). The police officers informed second applicant that they
had arrested Jamba with a large amount of Namibian currency in
Jamba’s possession and that Jamba allegedly came into possession of
such Namibian currency after having exchanged an amount of U$11
000.00 with second applicant.
The police
officer demanded to see the US dollars which were allegedly kept in a
safe on the business premises. Second respondent at some stage
contacted his legal representative in Windhoek. Thereafter he asked
one the police officers, warrant officer Ambata, whether they had a
search warrant. The police officers did not have a search warrant.
Second applicant stated that he was then virtually detained without
being arrested. In the evening around 18h00 warrant officer Ambata
accompanied by Chief Inspector Agas returned with a search warrant.
Second
applicant faxed this search warrant to his legal representative and
was subsequently informed by the legal representative that the search
warrant was invalid inter
alia because it did
not specify which offence was reasonably suspected to have been
committed by second applicant and that the search warrant was general
and vague.
His legal
representative telephonically spoke to Chief Inspector Agas and an
agreement was reached that any attempt to further search and
forcefully seize the money in the safe (which includes monies
obtained from clients) would be abandoned pending an application to
be brought to the High Court on 29 January 2009. Second applicant
stated that subsequently, and to his surprise, despite his denial of
the allegations made by Jamba, he was arrested without a warrant of
arrest on charges that he had allegedly exchanged foreign currency in
contravention of some unspecified regulations.
This Court
was thereafter approached who then gave the first order.
[6] Warrant
Officer Michael Ambata deposed to an affidavit on behalf of second
and third respondents. He was the police officer who initiated
criminal proceedings against the applicants. I shall now deal with
that part of his opposing affidavit relating to the relief prayed for
by the applicant in their second application. Warrant Officer Ambata
stated in this regard that he was called by Mr Namandje (legal
representative of the applicants) late in the evening of 29 January
2009 who indicated to him that the High Court of Namibia had ordered
the release of the second applicant from custody and that the first
search warrant had been set aside.
He continued
and stated as follows in paragraphs 26, 27, 28 and 29 of his opposing
affidavit:
26.
“Still
on the 29th
of January 2009 the police had gathered fresh information on other
exchanged control violations by the second applicant. A sworn
statement from another Angolan national Marcos Zeferino Ndala was
obtained wherein allegations of illegal foreign currency exchange
deals were leveled at the second applicant. The statement I obtained
is attached hereto as annexure “MA3”.
27.
The
fresh criminal allegations against the second applicant led to the
police’s application for and obtaining of the second search warrant
on the 30th
January 2009. The second search warrant was granted by the first
respondent. The application for this second search warrant was the
same as that of the first in that it constituted of the formal search
warrant supported by sworn affidavit by myself. The second search
warrant is attached hereto as annexure “MA4”.
28.
The
more details on the second search warrant were put in view of the
applicant’s legal practitioners complaints that the first search
warrant had contained inadequate information. I must emphasize that
the second search warrant was obtained not to circumvent this
Honourable Court’s order granted on the 29th
of January 2009 but the cause (because of ?) the new foreign currency
violations against the second applicant.
29.
As
far as the police concerned we did not see anything irregular or
unlawful in the second search warrant issued and in any event it was
up to the Magistrate’s judicial discretion to issue it or not. Our
purpose of obtaining the search warrant was still to access the safe
which was again alleged to be housing all the foreign currency
subject of our criminal investigations.”
[7] He
further stated that a case (presumably in violation of exchange
control regulations) has already been opened against the second
respondent and that the granting of the prayers the applicants sought
in their second notice of motion would lead to the possible
obstruction of the course of justice.
[8] In a
sworn statement in support of an application to the magistrate to
issue the second search warrant, officer Ambata states as follows (at
par. 11):
“After
this search warrant was turned down, I again obtained another
information under oath from Mr Marcos Zeferino Ndala an Angolan
national, also claimed that he use (sic) to come and exchange his
American dollars for Namibian dollars without buying anything at Mr
Shamil Dirk’s business at Oshikango in (sic) numerous occasions …”
[9] This
statement was dated 30 January 2009 at 07h00.
It appears
inter alia
from an affidavit by Marcos Zeferino Ndala that the alleged exchanges
of USA dollars for Namibia dollars occurred sometime during December
2008 and sometime during January 2009. This statement was taken down
by warrant officer Ambata at Oshikango on 29 January 2009 at 11h40.
[10] If one
has regard to the fact that according to warrant officer Ambata he
was informed “late
in the evening of the 29th
of January 2009”
that the first search warrant had been set aside and that he obtained
the information on oath from Mr Ndala after the first search warrant
had been set aside, then Mr Ndala could not have deposed to a warrant
at 11h40 on 29 January 2009 since at that time this
Court had not even heard the application in which relief was sought
for the setting aside of the first search warrant !
Such an
order was given by this Court only about 15h30 on 29 January 2009.
Thus this “fresh
information”
appears not to be so fresh since the police (having regard to the
time and the date) had such information before this Court heard the
first application and such information must have been information in
addition to the sworn statement by Jamba, the basis on which the
magistrate was approached to issue the first search warrant.
Therefore the impression created that such information was obtained
subsequent to the setting aside of the first search warrant must on
the face of the affidavit itself, be false.
It follows
that the information contained in the affidavit by Ndala could not
have been the basis on which officer Ambata could have applied to the
magistrate to issue the second search warrant. If this line of
reasoning is taken to its logical conclusion then warrant officer
Ambata had no reasonable grounds for believing that something
(foreign currency) would afford evidence as to the commission of an
offence at the time he applied for the issuing of the second search
warrant.
This
conclusion is in conflict with the averment by warrant officer Ambata
that the second search warrant was obtained not to circumvent this
Court’s first order, but that it was because of new foreign
currency violations against second applicant.
This
conclusion in my view also questions the bona
fides of warrant
officer Ambata in approaching the magistrate for the issuing of the
second search warrant.
[11] The
State may in terms of section 20 of the Criminal Procedure Act 51 of
1977 seize anything (an article):
“(a) which is concerned in
or is on reasonable grounds believed to be concerned with the
commission or suspected commission of an offence, whether within the
Republic or elsewhere;
(b) which may afford
evidence of the commission or suspected commission of an offence,
whether within the Republic or elsewhere;
(c) which is or intended to
be used or is on reasonable grounds believed to be intended to be
used in the commission of an offence.”
[12] The
State may in terms of section 21 (but subject to the provisions inter
alia of section 22)
effect the seizure of the articles referred to in section 20 only by
virtue of a search warrant.
Section 22
deals with those instances where an article may be seized without a
search warrant and is not applicable in this application.
[13] Section
21 (1)(a) of the Act provides that a magistrate or justice, shall
issue a search warrant if it appears from information on oath that
there are reasonable grounds for believing that such article is in
the possession or under the control of or upon any person or upon or
at any premises within the area of jurisdiction of such magistrate or
justice.
[14] Section
21 (2) provides that a search warrant shall require a police official
to seize the article in question and shall authorize such police
official to search any person identified in the warrant, or to enter
and search any premises identified in the warrant and to search any
person found on or at such premises.
[15] The
first search warrant was addressed “TO
ALL POLICEMEN”
to search the premises of first applicant for something in respect of
which an offence is suspected on reasonable grounds to have been
committed, to wit
“American dollars cash”.
This warrant
did not mention any statutory or common law offence that had
reasonably suspected to have been committed. Warrant Officer Ambata
states in his opposing affidavit that more details were put in the
second search warrant in view of complaints that the first search
warrant contained inadequate information.
[16] In the
second search warrant the statutory provisions which had allegedly
been contravened (Regulation 2 of the Exchange Control Regulations of
1961) was inserted in an attempt rectify previous criticisms but
where the article in the first search warrant was described as
“American dollars
cash”, in the
second search warrant the police officers were authorised to search
for and seize “any
foreign currency in respect of contravening Regulation 2 of the
Exchange Control Regulation of 1961 as amended read with Act 9 of
1933. (Buying, selling, exchanging foreign currency without
permission of the treasury)”.
[17] Both
search warrants were addressed “TO
ALL POLICE OFFICERS”. In
Divisional
Commissioner of SA Police, Witwatersrand Area and Others v SA
Associated Newspapers Ltd and Another 1966 (2) SA 503 (A) at 512 D
reference was made to one of the requirements of a valid search
warrant where the Court confirmed the position that Courts will
refuse to recognize as valid a warrant the terms of which are too
general.
[18] In his
statement under oath in support of his application for the second
search warrant, Warrant Officer Ambata identified the foreign
currency as “US
dollars”. The
search warrant however empowers the police officers to search for and
seize any foreign
currency. It is
clear from the statement of warrant officer Ambata that he had a
reasonable suspicion that “US
dollars” had been
exchanged in contravention of the relevant exchange control
regulations and no mention was made of foreign currency other than
“US dollars”.
The second search warrant in this regard is overbroad and authorises
the seizure for example of Russian roubles or Japanese yen in respect
of which no suspicion was ever harboured that exchange control
regulations had been violated in respect of those foreign currencies
or any other foreign currency other than “US
dollars”. This
second warrant had been drawn too widely in respect of the
description of the article “in
respect of which there were reasonable grounds for believing that it
was used for the purpose of or in connection with the commission of
an offence”.
In
Divisional
Commissioner of SA Police at 512 (supra)
the Appellate Court referred with approval to remarks by the learned
Judge a quo
who commented on the terms of a search warrant as follows:
“The
ambit is so wide that the imagination boggles at the suggestion that
there existed reasonable grounds for believing that each and every
document in this large category ‘would’ not ‘might’, afford
evidence of a contravention referred to by the third respondent in
his affidavit.”
[19] The
search warrant in that case inter
alia allowed for the
seizure of “all”
documents “concerning
reports in connection with conditions in goals”.
Beyers ACJ
in (Divisional
Commissioner of SA Police (supra)
continues as follows on 512 H:
“The
Court a quo, in my opinion, correctly held that para. 2 (g) should
not have figured in the warrant in the form it did; that it was
couched in such wide terms as to justify the inference that the third
appellant had not properly applied his mind thereto as required by
sec. 42 of the Act. As stated above, in circumstances such as these
the Court will interfere in the result.”
[20] Section
42 referred to in this quotation was the equivalent of our present
section 21.
[21] The
magistrate in casu
was the sole arbiter to determine the justification of the search
warrant issued under her hand and had the duty to apply her mind as
required by section 21 before issuing the relevant search warrants.
In my judgment she did not do so, and this Court was thus justified
to interfere and to cancel and set aside both search warrants.
[22] Mr
Namandje who appeared on behalf of the applicant in the first
application referred to the invalidity of the search warrant because
it was too vague and general. He emphasized two points in this
regard. Firstly that the warrant did not identify the offence
reasonably expected to have been committed and secondly the search
warrant authorized “whoever
is a police officer”
to search the premises of first applicant.
[23] It was
held in De Wet and
Other v Willers NO and another 1953 (4) SA 124 (TPD) at 127 B – C
that to “enter
premises, to search those premises and to remove goods therefrom is
an important invasion of the rights of the individual. The law
empowers police officers to infringe the rights of citizens in that
way provided that they have a legal warrant to do so. They must act
within the terms of that warrant. When a dispute arises as to what
power is conferred by the warrant the warrant must be construed with
reasonable strictness, and ordinary there is no reason why it should
be read otherwise than in the terms in which it is expressed”.
[24] Courts
have a long history of scrutinizing search warrants with rigor and
exactitude because the warrant encroaches upon personal liberty.
(See Powell
NO and Others v Van der Merwe NO and Others 2005 (1) SACR 317 ).
Therefore a
magistrate when authorising a search warrant should satisfy herself
or himself with the provisions of the relevant statutory provisions
since failure to do so may give rise to an unnecessary wide
formulation of a warrant bound to be set aside for that reason only.
The
information the police received from Jamba was that he gave second
applicant an amount of N$11 700.00. The warrant of search was
drafted in wide terms authorizing the police to seize (by
implication) all the
American dollars found on the premises. It was for this reason (i.e.
the wide and general formulation) that the search warrant stood to be
set aside. There was a second reason why the warrant needed to be
set aside namely the fact that it was addressed “TO
ALL POLICEMEN”.
The same applies to the second warrant even though this point was not
specifically argued during the second application.
[25] It is
trite law that a search warrant must order an officer identified in
such warrant to confiscate the article in question.
It appears
from what was held by Van Oosten, J in
Smit & Maritz Attorneys and Another v Lourens NO and Others 2002
(1) SACR 152 WLD at 157
that the reasons why a search warrant addressed to “all
police officers”
is null and void are twofold. Firstly, section 21 should be read
together with the provisions of section 29 of the Act which provide
that a search of any person or premises shall be conducted with
strict regard to decency and order and that decency and order can
only be achieved if a “known
and named” police
official is or officials are empowered to execute it. Secondly there
is a more fundamental consideration demanding a strict interpretation
of the provisions of inter
alia section 21.
This is that those provisions may result in a serious encroachment on
the rights of those who are subjected to them.
There
appears on authority of Naidoo
and Another v Minister of Law and Order and Another 1990 (2) SA 158
(W) at 161 C – D,
a third reason why a search warrant must be addressed to an
identified police officer and that relates to the intention of the
Legislature. In Naidoo
(supra)
the provisions of section 25 were considered. The provisions of both
sections 21 and 25 inter
alia empowers a
magistrate to issue a warrant authorizing “a
police official”
to enter the premises or to seize an article.
In Naidoo
(supra)
Roux J expressed himself as follows at 161 C – D:
“The
warrants are addressed “To all police officers”. Section 25
provides for a warrant authorizing “a police official” to enter
the premises. The section continues to vest such police official
with important discretionary powers. This indicates that the
Legislature intended that an identified police officer should be
named and should act throughout. In the form they were granted any
policeman with any rank and with no knowledge of the facts could come
upon the premises and search. Such a situation could, in my
judgment, result in a disorderly search which is exactly what s. 29
of the Acts seeks to avoid.”
[26] Van
Oosten J in Smit &
Maritz Attorneys (supra)
said at 157 i– j that it “is
significant to note that the section prior to its amendment by Act 33
of 1975, authorized the issuing of a search warrant ‘directing any
policeman named therein or all
policemen’
to search and seize”.
(Emphasis
provided).
Van Oosten J
further stated that a “restrictive
interpretation of the word ‘police official’ as used in this
section as referring to a known and named official, would, in my
view, further provide some safeguard for the protection of the rights
of those whose privacy might be in danger of being assailed through
searches and seizes of officials of the State”.
The section
referred to supra is
section 21.
[27] Search
warrants which are addressed to “all
police officials”
and not to a specific officer or specific officers do not comply with
the provisions of section 21 and are for that reason alone, invalid.
(See Smit
v Maritz Attorneys at 158 (a)
).
[28] Cameron
JA, in Powell NO and
Others (supra)
discussed various cases relating to search warrants and set out the
following general principles which in my view should be adopted by
this jurisdiction:
“(a) Because of the great
danger of misuse in the exercise of authority under search warrants,
the courts examine their validity with a jealous regard for the
liberty of the subject and his or her rights to privacy and property.
(b) This applies to both the
authority under which a warrant is issued, and the ambit of its
terms.
(c) The terms of a search
warrant must be construed with reasonable strictness. Ordinarily
there is no reason why it should be read otherwise than in the terms
in which it is expressed.
(d) A warrant must convey
intelligibly to both searcher and searched the ambit of the search it
authorizes.
(e) If a warrant is too
general, or its terms goes beyond those the authorizing statute
permits, the Courts will refuse to recognize it as valid, and will
set it aside.
(f) It is no cure for an
overbroad warrant to say that the subject of the search knew or ought
to have known what was being looked for: The warrant must itself
specify its object, and must do so intelligibly and narrowly within
the bounds of the empowering statute.”
[29] These
are laudable principles which must be considered by magistrates or
justices prior to issuing search warrants.
[30] Ms
Vivier who appeared an behalf of the applicants in the second
application (with reference to the confirmatory affidavit by Mr
Namandje) submitted that the second search warrant was issued while
members of the Namibian Police Force were and remained in contempt of
the first court order and that this was done in order to allow them
time to obtain the second search warrant.
[31] Mr
Namandje, instructing legal practitioner in the second application,
described his involvement in both applications as follows: that Mr
Marcus of the Government Attorneys was in Court on 29 January 2009
when the court, handed down its first order against the respondents;
that after faxing the court order he spoke to warrant officer Ambata,
the arresting officer, advising him of the specific court orders and
informing him that a copy of the court order was sent to his station
by facsimile; that he spoke to Chief Inspector Agas who provided him
with a fax number; that he faxed a copy of the court order to him
and that Chief Inspector Agas confirmed receipt thereof; that he, on
advise from Chief Inspector Agas, faxed a copy of the court order to
Commissioner Shikongo of the Namibian Police Force; that all this
was done on 29 January 2009 between 16h00 and 17h00; that when he
later telephonically spoke to Chief Inspector Agas and enquired
whether second applicant had been released he was advised that the
Namibian Police would not comply with the court order; that after
18h00 he spoke to warrant officer Ambata for a second time and was
informed in no uncertain terms that the Inspector-General of the
Namibian Police had given orders that the court order should not be
complied with; thereafter he spoke to Mr Marcus who undertook to
immediately advise the relevant officers of the Namibian Police to
comply with the court order; when he again at about 20h00 spoke to
Chief Inspector Agas, he was informed that although he had been
advised by Mr Marcus to comply with the Court order he was still
considering whether to comply with the court order or not; he then
sought the assistance of the Prosecutor-General whom later informed
him telephonically that she had advised the Namibian Police and that
they had agreed to release second applicant; that at around 21h00 he
spoke to Chief Inspector Agas who confirmed that he had been advised
by the Prosecutor-General to release second applicant but that he
would despite such advice not do so; he then sought the assistance
of Dr Albert Kawana, the Acting Attorney-General who undertook so
advise the respondents to comply with the court order; that it took
him another 40 to 50 minutes speaking to the Inspector-General of the
Namibian Police before he ultimately agreed to order the release of
the second applicant. Mr Namandje stated that he also spoke to the
Minister of Safety and Security who stated that he expected his
members to respect the order, but could not do anything if the
members on the ground were not respecting the order.
[32] On 30
January 2009 a letter was addressed to the Inspector-General of the
Namibian Police which in part reads as follows:
“As
you well know the second applicant was only released after 22 hours
after intense negotiations for his release, notwithstanding a Court
order that he should have been immediately released. His detention
from around 17h00 to 22h00 last night was not only unlawful but it
was also malicious on the part of the Namibian Police and we have
received instructions to advise our client on a possible damage claim
against the Minister of Safety & Security.
Although
our client was released, we have been informed this morning that our
clients business continue being virtually closed on account of the
fact that Police Officers in their numbers are posted at our clients
business and are hindering running of our client’s business and in
contempt of court refused to hand over our client’s keys and the
invoice book other things unlawfully seized. Our client cannot, in
such circumstances make stock order and run the business.
We
wish to advise you that the warrant of search concerned have been, on
the interim basis and with immediate effect held as invalid and was
set aside by the High Court.
We
have received instructions as follows:
That
our client be permitted to commence his business unhindered in any
way.
That
your members who are unlawfully occupying our client’s premises
leave with immediate effect.
That
you restore our client’s business/office keys.
Your
members on our client’s property are scarring off our client’s
customers and should leave.
Should
this not be done by 12h00
this afternoon, an urgent application will be brought in the High
Court on Monday, 2 February 2009 to hold the Minister of Safety &
Security and the Inspector-General of the Namibian Police in contempt
of court as well as the Station Commander of Ohangwena Police Station
and further to apply for such other orders as may protect our
client’s rights and interests.
This
letter will be placed before the Court in future, both in the
application contemplated on Monday and in the possible damage claim
to be brought against the Minister of Safety & Security if the
unlawful conduct of the members of the Namibian Police persist beyond
12h00
this afternoon.”
[33] First
respondent filed an answering affidavit and warrant officer Ambata
filed an answering affidavit on behalf of the second, third, and
fourth respondents.
Warrant
Officer Ambata sets out in his answering affidavit the circumstances
which had led to the arrest of second applicant as well as the
issuing of the first search warrant.
[34] He
stated that after the second appellant had been arrested a police
officer was left at the premises of first applicant in order to
ensure that the safe was not interfered with. He denied that there
were police officers all over applicants’ business premises as
claimed by second applicant in his founding affidavit and he further
denied that applicants’ business had been interrupted by a heavy
police presence. He related that he was informed by Mr Namandje on
29 January 2009 late in the evening that this Court had ordered the
release of second applicant and that the first search warrant had
been set aside. He thereafter narrated the circumstances which led
to obtaining the second search warrant.
[35] Warrant
Officer Ambata did not in his answering affidavit deny the averment
by Mr Namandje that he had on the evening of 29 January 2009 informed
Mr Namandje in no uncertain terms that the Inspector-General of the
Namibian Police had given orders that the court order (given on the
same day) should not be complied with.
Instead
warrant officer Ambata tried to justify the non-compliance of the
court order and took the opportunity to advise this Court as to the
solution in this stalemate when he expressed himself as follows in
paragraph 32 of his answering affidavit.
“All
the police are seeking to avoid the aforesaid possible obstruction of
justice is for access to the safe be granted in the presence of the
second applicant and his legal practitioners, for the content of the
safe to be noted by all concerned and any possible criminal conduct
or lack of it assessed. This is the only fairest thing to all
parties in the circumstances. Such approach will also take care of
the applicants’ alleged interference with their normal business
operations by the police investigations.”
[36] Furthermore
in spite of allegations of contempt of Court by Chief Inspector Agas
no answering affidavit had been filed by Chief Inspector Agas
refuting those serious allegations.
[37] Mr
Khupe who appeared on behalf of the respondents in the second
application urged this Court to have regard to the time constraints
the respondents faced in their preparation to file answering
affidavits. This was indeed a factor that this court had considered.
However this Court was informed by Mr Khupe that Chief Inspector
Agas had been in Windhoek since at the latest 2 February 2009 when
respondent applied for a postponement until 3 February 2009 and I am
of the view that Mr Khupe had adequate time available to have
obtained an affidavit from Chief Inspector Agas.
[38] In any
event the averments that the conduct of police officers (warrant
officer Ambata and Chief Inspector Agas) amounted to contempt of
court are uncontraverted.
[39] The
police officers (especially Chief Inspector Agas) stubbornly
persisted in this conduct in spite of advice to comply with the Court
order.
[40] It is a
fact that this Court had given the respondents the opportunity to
file answering affidavits and had given counsel representing the
respondents the opportunity to argue their case in Court. A
submission made by Ms Vivier (at least in her heads of argument) was
that respondents should not be heard at all until they have purged
their contempt. There is in my view, much merit in this submission,
and had this Court been required to consider this issue, raised as a
point in limine,
this court in all probability would have denied respondents an
audience until such time as they have purged their contempt.
[41] It is
trite law that all court orders must be complied with irrespective of
whether a litigant agrees or disagrees with such order and court
orders remain valid and enforceable until they are set aside on
appeal by a competent court of law.
[42] This
Court applied this fundamental principle in Hamutenya
v Hamutenya 2005 NR 76 (HC)
where the applicant applied for an amendment of a previous court
order, whilst being in contempt of such an order. This court held
that though contempt of a court order was not an absolute bar to
further proceedings, that that case did not fall under the exceptions
to the rule. The Court accordingly struck the matter from the roll
and gave leave to the applicant to renew the application once he had
complied with the existing court order.
Maritz J (as
he then was) said this at 78 B – G:
“In
pressing the point in limine on behalf of the respondent, Mr Boesak
reminded the Court of the dire consequences to the administration of
justice and the maintenance of order in society if orders of Court
are disregarded with impunity. Recognising the considerations of
public policy which underline the need to respect and comply with
orders of that kind, the Court said in Sikunda v Government of the
Republic of Namibia and Another 2001 (2) NR 86 (HC) at 92 D – E:
‘Judgments,
orders, are but what the Courts are all about. The effectiveness of
a Court lies in execution of its judgments and orders. You frustrate
or disobey a Court order you strike at one of the foundations which
established and founded the State of Namibia. The collapse of a rule
of law in any country is the birth to anarchy. A rule of law is a
cornerstone of the existence of any democratic government and should
be proudly guarded.’
Authority
for this approach is also to be found in a case both parties drew the
Court’s attention to. In Kotze v Kotze 1953 (2) SA 184 (C)
Herbstein J said at 187 F:
‘The
matter is one of public policy which requires that there shall be
obedience to orders of Court and that people should not be allowed to
take the law into their own hands.’
It
is for these reasons that Froneman J pointed out in Bezuidenhout v
Patensie Sitrus Beherend BpK 2001 (2) SA 224 (E) at 229 B – D:
‘An
order of a Court of law stands until set aside by a Court of
competent jurisdiction. Until that is done the Court order must be
obeyed even if it may be wrong (Culverwell v Beira 1992 (4) SA 490
(W) at 494 A – C). A person may even be barred from approaching
the Court until he or she has obeyed an order of Court that has not
been properly set aside (Hadkinson v Hadkinson [1952] 2 All ER 567
(CA); Byliefeldt v Redpath 1982 (1) SA 702 (A) at 714).’ ”
[43] Mr
Khupe submitted that it would be fair to all parties concerned (as
advised by warrant officer Ambata in par. 32 (supra)
) if this Court would order that respondents may inspect the contents
of the safe in the presence of second applicant and his legal
practitioners in order to ascertain possible criminal conduct by the
applicants or lack thereof.
[44] This
Court does not see the necessity for any such order. In Ntoyakhe
v The Minister of Safety and Security and Others 1999 (2) SACR 349
(ECD) at 354 e – f
Erasmus J said the following:
“In
the context of s. 20, the word “seize” … encompasses … not
only the act of taking possession of an article, but also the
subsequent detention thereof. The word is capable of such a
construction, and the right conferred by the use thereof in chap. 2
would be rendered worthless were it limited to the initial act of
seizing, as the subsequent detention thereof would then fall outside
the ambit of s. 20.”
[45] If this
Court is required to condone ex
post facto the act
of seizing the safe this Court must then also condone the continued
detention of the safe by the Namibian Police. Such an order cannot
be given since the initial seizure of the safe was unlawful.
[46] Mr
Khupe further urged this Court to have regard to an affidavit by
Mr D F Small. Mr Small, who is a Deputy Prosecutor-General in the
office of the Prosecutor-General, deposed to an affidavit on behalf
of the Prosecutor-General. He stated that the interest of the
Prosecutor-General in this application was that as prosecuting
authority of all crimes allegedly committed in Namibia the
Prosecutor-General must see to it that crimes are fully investigated
prior to a decision whether to seize anything in terms of the
provisions of section 20 of the Criminal Procedure Act 51 of 1988.
Mr Small
continued to analyse the founding affidavit of the second applicant
and made certain submissions. This Court was also referred to the
Currency and Exchanges Act, 1933 and the Exchange Control Regulations
published in terms of that Act.
Mr Small
further stated, in his affidavit, that it is prima
facie apparent from
these regulations and the Bank of Namibia Act, 1977 that anyone who
is in possession of foreign currency and who wishes to use it in
Namibia to, for example buy something in Namibia, has to approach an
authorized dealer to obtain currency that is legal tender in Namibia
and use such legal tender to pay for example the applicants. Anyone,
so it was suggested, who buys foreign currency from anyone who is not
an authorised dealer commits an offence and anyone who facilitates
this at least might be committing the offence of inciting or
assisting another to commit such an offence.
[47] In
interpreting the last sentence I am of the view that Mr Small is not
suggesting that this Court might be assisting the applicants in
continuing to contravene the relevant exchange control regulations
should this Court allow the applicants to retain the “US
dollars” which are
allegedly inside the safe of the applicants.
[48] Contrary
to what was advanced by Mr Small, it was submitted by Ms Vivier,
that the possession of foreign currency is not per
se an offence but
that it is what you do with it which creates the offence.
It is
however not necessary for me, (in the light of my findings (supra)
), to decide whether or not the applicants may lawfully possess
foreign currency.
I wish to
endorse what Jafta J said in Dyani
v Minister of Safety & Security and Others 2001 (1) 634 (TKD)
where it was contended that by virtue of the provisions of section
125 (5) (b) of the Road Traffic Act 29 of 1989 (applicable in
Transkei) it was incompetent for that Court to direct that a vehicle
be returned to the applicant as his possession thereof would
constitute an offence. The Court expressed itself as follows at 642
b – c:
“It
suffices to say that, generally speaking, the Courts will not
sanction unlawful seizures and where such seizures have occurred
orders would issue for the return of the seized articles. This does
not, however, mean that the person to whom the articles are returned
could be legally permitted to possess them instead it would mean that
the police have to start afresh in seizing the articles and acting in
compliance with requirements of the law regulating seizures.”
(Emphasis
provided)
[49] In my
view members of the Namibian Police Force acted within their powers
when they tried to investigate the source of the amount of
N$114 920.00 which was hidden in the socks of an Angolan national.
Monies, including foreign currency, may in terms of the provisions of
section 20 of the Act be seized by the State. However the
instruments (i.e. search warrants) utilized to effect seizures during
such investigations were fatally flawed and thus invalid.
[50] In
respect of the issue of urgency, Mr Khupe conceded that the matter
was one of urgency. I can do no better but to refer in this regard
to what this Court said in Swanepoel
v Minister of Home Affairs and Others 2000 NR 93 at 95 A – B:
“It
is trite that urgency does not only relate to life or liberty, but
also includes commercial interests which may justify the invocation
of Rule 6 (12) of the Rules of Court no less than any other
interests.”
[51] It is a
fundamental rule that an award of costs is a matter wholly within the
discretion of the Court, (See Van
der Ploeg v Vivier & Another 1966 (3) SA 218 (SWA) at 222 A –
B) and that as a
general rule the party who succeeds should be awarded his or her
costs.
(See Union
Government v Gass 1959 (4) SA 401 (A) at 413 C – E).
An award of
costs on a scale as between attorney and client will not be lightly
granted by a Court unless the circumstances which gave rise to the
action or application is of such a nature that a court may consider
it just to ensure that a successful party will not be out of pocket
in respect of the expense caused to him by the litigation. One of
the grounds upon which a court may (See Nel
v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD 597 at 607)
make a special order as to costs is where the conduct of a litigant
is deplorable and highly contemptuous of the Court.
(See Caluza
v Minister of Justice and Another 1969 (1) SA 251 9NPD) at 251 F –
H).
[52] In
Mudzima v Chinhoyi Municipality and Another 1986 (3) SA 140 (ZHC) at
144 G – H the
Court expressed itself as follows in respect of costs orders on
attorney-client scale:
“The
subsequent actions, however, were necessitated by the respondents’
apparently defiant attitude towards the Court orders, and their
refusal to comply with the terms of those orders. It is my view
that, in such circumstances, there are ample grounds warranting the
award of costs on the higher scale.”
[53] In
casu, the conduct of
the police officers (i.e. warrant officer Ambata and chief inspector
Agas) was deplorable and highly contemptuous of the first court
order. As in (Mudzima
(supra) they
manifested a stubborn and defiant attitude despite the fact that they
had been advised by officers of this Court as well as by the
Prosecutor-General to comply with the first Court.
This Court
therefore as a mark of its disapproval of the conduct of the
afore-mentioned officers mulcted the 4th
respondent (the Minister of Safety & Security) with a special
cost order on a sale as between attorney and client in respect of the
second application.
These then
were the reasons why this Court issued the rules
nisi in paragraphs
(1) and (2) (supra).
___________
HOFF, J
ON BEHALF
OF THE 1ST
& 2ND
APPLICANTS: ADV. VIVIER
Instructed
by: SISA NAMANDJE & CO.
ON BEHALF
OF THE 1ST
– 5TH
RESPONDENTS: MR KHUPE
Instructed
by: GOVERNMENT ATTORNEY
Samco Import & Export cc and Another v Magistrate of Fenhana and Others (A 25/2009) [2009] NAHC 9 (18 February 2009);