CASE NO: POCA 1/2009

IN THE HIGH COURT OF NAMIBIA, WINDHOEK

In the matter between:

THE PROSECUTOR-GENERAL APPLICANT

and

TECKLA NANDJILA LAMECK 1^ST DEFENDANT

JEROBEAM KONGO MOKAXWA 2^nd DEFENDANT

YANG FAN 3^rd DEFENDANT

NUCTECH COMPANY LTD 4^th DEFENDANT

FESTUS LAMECK 1^st RESPONDENT

TEKO TRADING CC 2^nd RESPONDENT

LANCE HAUUANGA 3^rd RESPONDENT

COMNON PROPERTIES NUMBER EIGHT CC 4^th RESPONDENT

VERONICA PANDULENI MOKAXWA 5^th RESPONDENT

ONGONYO TRADING CC 6^th RESPONDENT

STERN & BARNARD ATTORNEYS 7^th RESPONDENT

SMITH TABATA BUCHANAN BOYES ATTORNEYS 8^th RESPONDENT

CORAM: DAMASEB, JP et FRANK AJ

HEARD: 24 July 2009

DELIVERED: 14 August 2009

JUDGMENT

JUDGEMENT OF THIS COURT: [1] This is the extended return day of a ”restraint order” issued by Damaseb JP on 6 July 2009 pursuant to the provisions of the Prevention of Organised Crime Act, No 29 of 2004 (“POCA”). Some of the defendants and respondents (hereinafter referred to as the defendants or the respondents) filed answering papers in an attempt to have the order set aside. In these answering papers certain issues were raised in limine. On the original return day the applicant sought a postponement to reply to the answering papers. As the in limine points were of such a nature that it would dispose of the matter if upheld without the need for the filing of further papers, the Court directed that these in limine points be dealt with without further delay. This judgment deals with the issues raised in limine.

[2] For the purpose of dealing with the in limine matters only the founding papers of applicant are considered.¹ The respondent’s/defendant’s points in limine are premised on the basis that the restraint orders should not have been given if regard is had to the facts evident from the founding papers.

[3] In terms of sections 24 and 25 of POCA restraint orders can be made by a Court on application by the Prosecutor General. Such orders authorise the seizure of property in contemplation of criminal charges or where a confiscation order has already issued. The current order was made pursuant to these sections. For clarity sake it should be mentioned that the person against whom the criminal proceedings are to be commenced (or against whom a confiscation order had been made) is referred to in POCA as the “defendant”. In the present matter the persons referred to as respondents are persons who do not face criminal proceedings but who , it is alleged , received certain property or proceeds from the defendants. The property in the hands of such respondents is susceptible of restraint if it meets the definition of an ‘’affected gift’’. Sections 24 and 25 form part of Chapter 5 of POCA. Section 22 (1) of POCA defines an ‘’affected gift’’ as ‘’any gift –(a) made by a defendant at any time , if it was a gift-(i) of property received by that defendant in connection with the commission of an offence or related criminal activity carried out by him or her or any other person; or (ii) of property which directly or indirectly represented in that defendant’s hands property received by him or her in connection with the commission of an offence or related criminal activity...’’

[4] On the contrary, section 51 (being part of Chapter 6 of POCA) deals with preservation orders, i.e. the seizure of property shown to be an “instrumentality of an offence referred to in schedule 1” or the “proceeds of unlawful activities”.

[5] Counsel for the respondents submitted before us that the order granted by Damaseb JP against the respondents could not be granted pursuant to sections 24 and 25, but that resort should have been had to section 51. If this is correct the order granted against the respondents falls to be set aside.

[6] A restraint order contemplates a criminal conviction. Hence it can only be made where a prosecution has been instituted or is imminent. Such order must be rescinded if prosecution is not instituted within a reasonable time² and it in any event expires at the conclusion of the criminal proceedings.³ If the defendant is acquitted the expiry of the restraint order is final. If the defendant is convicted the court must consider a confiscation order. The point is that restraint orders are linked to criminal prosecutions. This is also clear from the heading to Chapter 5 which refers to “Confiscation of Benefits of Crime”.

The scheme of POCA and the first in limine point: can a restraint issue

against respondents?

[7] Chapter 6 – under the heading “Forfeiture of Property and Related Matters” - contains the provisions relating to preservation and forfeiture orders. Section 51 does not contemplate a criminal prosecution nor does it require a criminal conviction for the purpose of a preservation order. It targets the use of the property for unlawful purposes or property acquired with the proceeds of unlawful activities. The focus is not so much on who committed the mentioned offences or the unlawful activities, but on the manner the property is used or has been acquired. Thus preservation orders can apply where there has been no criminal prosecution or even where a person has been acquitted.⁴ As correctly pointed out to us by counsel for applicant, Chapter 5 deals with the confiscation of the proceeds of unlawful activities which the court must quantify upon conviction whereas Chapter 6 deals with the forfeiture of specified property.

[8] With these distinctions in mind it is now necessary to look at the provisions of sections 24 and 25 in more detail. In terms of section 24 a restraint order may be made against a person who faces or is about to face criminal charges (leaving aside the instance where a confiscation order has already been made which can only be done following a conviction). As already mentioned these persons are referred to in POCA as defendants.

[9] In terms of section 25 the restraint order may prohibit “any person” from dealing with “any property” to which the order relates. The section further provides that no notice of an application for a restraint order needs to be given “to any other person” and that such order can be granted in respect of “realisable property” held by the person against whom the restraint order is “being made”. Notice of restraint orders must be given “to persons affected by the order”. A restraint order expires “when the proceedings against the defendant are concluded”.

[10] Section 25(2) (a) expressly authorises a restraint order in respect of “realisable property”. Such property by definition includes property not belonging to a defendant but property donated by a defendant and falling within the specialised meaning of “affected gift”.

[11] Section 25 uses the words “any person” because it is clear from its referral to “any property” - read with the definition of “realisable property” - that restraint orders would not necessarily only affect defendants but could also affect persons in possession of “realisable property” as defined. That this is so is also evident from the provision that a restraint order expires upon the conclusion of the criminal proceedings “against the defendant”. The legislator punctiliously distinguishes between “any person” and “defendant” as it had to do given the effect of section 25.

[12] In the result the point in limine taken on behalf of the respondents that a restraint order pursuant to section 25 of POCA could not have been granted against them has no merit and is dismissed.

Was a case made out in the founding papers for the grant of an order?

[13] We now turn to consider whether applicant made out a case in the founding papers for the order granted on an ex parte basis. In terms of section 24(1)(a)(i) and (ii), the court had to be satisfied that the defendants were to be charged with an offence and “that there are reasonable grounds for believing that” a confiscation order may ensue. The defendants/ respondents maintain that the order was erroneously granted and that in terms of section 27(3) of POCA it should be set aside because on the case then made out the essential jurisdictional facts were missing and that no basis was laid in respect of the three offences alleged , being theft , corruption and fraud.

Was a prosecution imminent?

[14] As far as the first requirement is concerned, i.e. imminent prosecution, very little needs to be said. The applicant stated that this would happen and in view of the publicity surrounding the matter it is currently a notorious fact that the defendants have been charged. In fact , the applicant’s expressed intention backed up by the affidavit of Mr Nelius Becker setting out the intended charges, indicated that charges were imminent and there can be no doubt that this requirement was met by applicant.

Were there reasonable grounds for believing that a confiscation

[15] To decide whether the allegations in the founding papers were such as to have contained sufficient facts to establish “reasonable grounds for believing that a confiscation order may be made”, it is necessary to deal in more detail with the allegations contained therein.

Becker’s Affidavit

[16] The facts deposed to by Becker essentially amounted to the following. During May 2008 the Government of Namibia contracted with fourth defendant for the purchase of certain x-ray equipment for a total purchase price of US$55,348,800.00. Of this amount US$12,828,800.00 was “to be used solely for the advance payment for the Seller to start the production of the whole contract goods”. The contract expressly provides that this advance payment is to be made by the Government of Namibia and that the balance of the purchase price (US$42,520,000.00) will be funded by a soft loan from the Chinese Government. This contract was signed between the Permanent Secretary of Finance (Mr Carl Schlettwein) and third defendant on behalf of fourth defendant as its Senior Overseas Marketing Manager, Africa. On 12 December 2008 the fourth defendant issued an invoice to the Ministry of Finance in respect of the advance payment. On 10 February 2009 fourth defendant and Teko Trading CC entered into an agency and into a consultancy agreement. Both these agreements were signed by first defendant on behalf of Teko Trading CC. Altogether an amount of US$4,229,408.00 would be paid by fourth defendant to Teko Trading CC pursuant to these two agreements. On 27 February 2009 the Ministry of Finance transferred the advance payment to fourth defendant. Under cover of a letter dated 3 March 2009 and signed by first defendant, Teko Trading CC informed fourth defendant that it had performed its obligations flowing from its agreement with the former. On the same day Teko Trading CC forwarded three invoices to fourth defendant under signature of first defendant totalling US$4,229,348.05. Between 11 and 12 March 2009 this amount less bank fees of U$150 was transferred to second respondent’s bank account and converted into the local currency. The total deposit amounted to N$42,061,859.47.

[17] On 10 April 2009 a further four agreements were entered into between fourth defendant and second respondent. The effect of those agreements are that having regard to what was by then already received by second respondent and what it was still to receive pursuant to the 10 April 2009 agreements, there would be paid an amount equal or very close to the advance payment stipulated in the agreement between the Government and fourth defendant, i.e. US$12,828,800. The new agreements cast the duties of second respondent in similar terms to those already mentioned. These, in essence, were the following:

‘’(a) To facilitate the Namibian Ministry of Finance and other governmental authorities or administrations to acquire the necessary licenses, permits and approvals so as to well prepare for the punctual delivery of the equipment;

(b) To assist in answering FAQs [frequently asked questions] of fourth respondent’s X-Ray equipment;

(c) To provide other assistance, if necessary, to the fourth defendant before or in the duration of the delivery of the equipment”.

[18] The members of second respondent are first and second defendants. Third defendant as a foreign national had applied to the Namibian authorities for a work permit and was sponsored in this by second respondent (first defendant signing the relevant letter) who intends to employ him. Second respondent’s registered address is the home address of third defendant. First, second and third defendants were previously involved with a company known as Namibia Contract Haulage. (They therefore have a business relationship and association which predates the present transaction.) First defendant was a director of this company whereas both second and third defendants were employees of this company. Prior to the money mentioned above being transferred into second respondent’s local account, the balance on its account amounted to N$0, 80. The transfers during 11 and 12 March 2009 obviously changed this but the incoming funds were withdrawn to such an extent that by 2 June 2009 the balance amounted to a paltry N$7.39. In excess of N$33 million was paid to first, second and third defendants; namely in excess of N$9 million and N$16 million to first and third defendants respectively and N$8 million to second defendant.

[19] First defendant was at all times a member of the Public Service Commission of Namibia and had not received permission to do any other remunerative work. This means she acted contrary to section 3(2) of the Public Service Commission Act, No 2 of 1990 which states:

“A member of the Commission shall not without the consent of the President perform or engage himself or herself to perform any remunerative work outside the duties of his or her office”.

[20] As far as the services to be rendered by second respondent are concerned, Becker points out that the primary agreement provides for the Ministry of Finance to obtain the necessary permits to import the equipment and work permits for the seller’s personnel. He states that it is absurd to suggest second respondent would be involved in this as government can obtain licenses, permits and approvals itself and that to pay about US$8.5 million for this makes no sense. As far as the other two mentioned services are concerned, Becker questions their need as the main agreement provides for a five year comprehensive training package so that to pay for non-technical people (first and second defendants) to answer FAQ’s is questionable and furthermore the concept of “provide other assistances, if necessary” is suspicious. Becker concludes that the consultancy and agency agreements are sham documents created to facilitate the advance payment and in that way to defraud the Ministry of Finance.

[21] Based on the above facts the following charges are referred to in the founding papers against the defendants, namely: fraud, theft and offences in terms of sections 33 and 42(2) of the Anti-Corruption Act, No 8 of 2003:

Section 33 states that:

“A person commits an offence who, directly or indirectly, corruptly solicits or accepts or agrees to accept for the benefit of himself or herself or any other person any gratification as-

1. an inducement to do or to omit doing anything;

2. a reward for having done or having omitted to do anything.

Section 34 states that:

A person commits an offence who, directly or indirectly, corruptly offers, gives or agrees to give to any person, whether for the benefit of that person or any other person, any gratification as –

1. an inducement to do or to omit doing anything;

2. a reward for having done or having omitted to do anything.”

The Law

[22] Before dealing with the individual charges it is necessary to briefly refer to the law when it comes to drawing inferences from facts and the approach to hearsay facts contained in founding papers. The first point to be made is that in terms of s18 of POCA proceedings under sections 24 and 25 are regarded as civil proceedings. Whereas it is correct that the inference drawn must be consistent with all the proved facts, sight must not be lost of the fact that these being civil proceedings it need not be the only one⁵ and in view of the test, i.e. reasonable grounds that an order “may” be made, we take the view that the approach the Court should follow when a restraint order is sought is the one developed to decide whether a prima facie case has been made out. This test has been formulated by the Full Bench of this Court as follows⁶:

“ ……in consideration of the possible inferences that can be drawn from the papers of the appellant in establishing a prima facie case, regard should be had to what is stated by Denning LJ in Smithwick v The National Coal Board [1950] 2 KB 335 at 351 - 2 where the following distinction was drawn between inference and conjecture:

'As Lord MacMillan said in Jones v Great Western Railway Co (1931) 144 LT 194 at 202: ''the dividing line between conjecture and inference is very often a very difficult one to draw'' but it is just the same as the line between some evidence and no evidence. One often gets cases where the facts proved in evidence - the primary facts - are such that the tribunal of fact can legitimately draw from them an inference one way or the other, or, equally legitimately, can refuse to draw any inference at all. But that does not mean that when it does draw an inference it is making a guess. It is only making a guess if it draws an inference which cannot be legitimately be drawn: that is to say, if it is an inference which no reasonable person could draw.

The court, however, recognises that a litigant will be handicapped when facts are within the exclusive knowledge of his opponent and that they hold, when that is so, that less evidence will suffice to establish a prima facie case.'

Hoffmann and Zeffertt (op cit at 398); Gericke v Sack 1978 (1) SA 821 (A) at 827.

Insofar as inferences in general are concerned, the position is succinctly set out in the Ocean Accident and Guarantee Corp Limited case as follows –

'''. . . in finding facts or making inferences in a civil case, it seems to me that one may, as Wigmore conveys in his work on Evidence 3rd ed para 32, by balancing probabilities select a conclusion which seems to be the more natural, or plausible, conclusion from amongst several conceivable ones, even though that conclusion be not the only reasonable one''.

I need hardly add that ''plausible'' is not here used in its bad sense of ''specious'', but in the connotation which is conveyed by words such as acceptable, credible, suitable. (The Oxford Dictionary and Webster's International Dictionary.)'

Ocean Accident Guarantee Corp Limited v Koch 1963 (4) SA 147 (A) at 159C - D.

The Ocean Accident case supra deals with the position at the end of a case and after consideration of all the evidence. Where one deals with a prima facie case, as at present, the test is less stringent:

'Mr Hofmeyr also relied on the statement on Cochran v Miller 1965 (1) SA 162 (D) at 163C that in an application for arrest to found jurisdiction the test for a prima facie case is whether there is evidence which, if believed, might persuade a reasonable man to draw the inference that the wrong complained of had been committed. That seems to me, with respect, to be the same as a prima facie case in the absolution context in a trial. In that context, to put it slightly differently from the statement in Cochran's case, a prima facie case is established by circumstance where the inference the plaintiff seeks to have drawn is as ''more or less equally open'' on all the available evidence as the inference favouring the defendant.'

Great River Shipping Inc v Sunnyface Marine Ltd case supra at 75I - 76B.

Thus in proceedings such as the present where a diversity of facts justify different inferences to be drawn, some of which could establish the appellant's case, the court should not pause to consider the value and persuasiveness of each and every inference that can be drawn but should only confine its attention to the fact or question whether one of the possible inferences to be drawn is in favour of the plaintiff in order to determine whether a prima facie case has been established or not. Marine and Trade Insurance Co Ltd v Van der Schyff 1972 (1) SA 26 (A) at 38G - H; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T) at 310D.”

[23] That said it also needs to be made clear that the court in considering whether or not to grant an order under chapter 5. NDPP v Rautenbach 2005 (4) SA 603 (SCA) at Para [27] it is stated that:

” is not required to satisfy itself that the defendant is probably guilty of an offence, and that he or she has probably benefitted from the offence or from other unlawful activity. What is required is only that it must appear to the Court on reasonable grounds that there might be a conviction and a confiscation order. While the Court, in order to make that assessment must be apprised of at least the nature and tenor of the available evidence, and cannot rely merely upon the applicant’s opinion ...it is nevertheless not called upon to decide upon the veracity of the evidence. It need ask only whether there is evidence that might reasonably support a conviction and a consequent confiscation order( even if all that evidence has not been placed before it) and whether that evidence might reasonably be believed’’.

[24] In terms of sec 91(3) of POCA the Court may have regard to hearsay evidence presented to it provided it “would not render the proceedings unfair”. It is common cause that Becker relies on hearsay evidence in advancing the case that the Ministry of Finance would not have made the advance payment had it known that such payment would be spent in the way it was or that the first defendant engaged in remunerative work without requisite permission. Counsel for the defendants / respondents criticised this evidence of Becker where he does not disclose some of his sources. In the summary of the facts we have sought to rely only on so much of the evidence of Becker supported by documents - save for the reference to the relationship between first, second, third defendants and second respondent- and the intended employment contract between third defendant and second respondent. It is not necessary to lay down principles as to when hearsay evidence can or cannot be relied upon in proceedings under POCA. Suffice it to say that the test is whether such evidence, if accepted, renders the proceedings unfair: Whether indeed an unfair result would occur will have to be decided on a case by case basis.

[25] In the present matter we find merit in the applicant’s counsel’s submission that Becker’s affidavit is founded on “documentary evidence consisting of contracts, official records, correspondence and bank records which are not in dispute ‘’ and the ‘’statement that evidence is available that the President has not given his consent to the first defendant’s undertaking this activity’’. In view of the substantial documentary evidence in support thereof and the relative ease with which the hearsay not based on documentary evidence can be rebutted - we are satisfied that acceptance of hearsay will not result in the proceedings being unfair.

Prima facie case of fraud?

[26] Becker relies on a fraud that was committed in relation to the Ministry of Finance. He states this fraud was committed by fourth defendant- aided and abetted by first, second and third defendants. We find no basis for a finding of fraud based on the facts presented to Court when the application was heard ex parte. Apart from stating that third defendant signed the primary agreement there is no evidence or a factual basis to suggest that he or any of the other defendants made any unlawful representations to the Ministry or that they were under some duty to disclose matters they did not. In fact, although fourth defendant by necessary implication had to deal with the Ministry through a representative in negotiating the agreement, this representative is not mentioned nor is any wrongdoing laid in front of his door. Furthermore, there is nothing to suggest first and second defendants were involved with or even knew of these negotiations. Whereas it has been stated with regard to non-disclosures ”By imperceptible stages, non-disclosure in commercial dealings passes from ‘keen business’ through ‘sharp practise’ to ‘blatant dishonesty’, ⁷ there are no facts to suggest or infer a fraudulent non-disclosure in the present matter. There is no duty on a seller to disclose to a potential purchaser how the proceeds of the sale are to be dealt with. If the purchaser accepts the purchase price that is the end of the matter in general. As far as fourth defendant is concerned, it offered the equipment based on a total price of over US$55 million and the Ministry accepted it. The fact that they would not initiate the transfer of the equipment prior to receipt of the initial payment in excess of US$12 million is, without more, not of any significance. The balance of the price was guaranteed by the Chinese government and - with the upfront payment - they could make payment to second respondent for whichever reason.

[27] True, the primary agreement provides for the advance payment “to be used solely … for the seller to start the production of the whole contract goods”. On behalf of applicant much was made of this clause in the agreement - to substantiate the inference that a fraud had been perpetrated upon the Ministry of Finance as an amount in excess of N$4.2 million of the advance payment had flowed to second respondent - and from it to first, second and third respondents. This approach attaches too literal a meaning to the agreement. Without the advance payment the contract would not be proceeded with and fourth respondent would not be bound to deliver (produce) any of the equipment. The advance payment initiated fourth defendant’s obligations and the fourth defendant would not have any other excuse for not performing its obligations. It must be borne in mind that the rest of the purchase price was made available by fourth defendant’s own (Chinese) government. There is no suggestion that fourth respondent is not ready to perform its obligations or has reneged on it. This being so the advance payment has triggered “the production of the whole contract goods”. The fact that some of the money making up the advance payment may have been used to make the transfer to second respondent does not alter this fact. The condition triggering the fourth defendant’s obligations has been fulfilled and the primary agreement hence became effective. As there is no suggestion that this is not so and that the fourth defendant had reneged on its obligations flowing from the agreement, the advance payment achieved the objective set out in the agreement as was contemplated by the parties thereto and consequently nothing untoward can be inferred in this regard. Whether the application of the advance payment for a purpose other than the commencement of the production of the contracted equipment amounts to a breach of contract is an open question but hardly one attracting the label of fraud in our criminal law. Besides, it is not clear from the founding papers what special consideration actuated the insertion of the clause which, if not complied with, would make the seller guilty of fraudulent conduct vis a vis the Ministry of Finance in the sense of the latter being put to its detriment in the criminal law sense.

[28] It thus follows that no evidence that may lead to a conviction of fraud of fourth defendant has been disclosed and consequently also no evidence of aiding and abetting fourth defendant to commit a fraud by the other defendants.

Was there evidence of theft?

[29] Becker submits that the facts presented may establish theft by the defendants of the initial payment from the Ministry of Finance. Once again, there is simply no basis for this. The money was paid pursuant to the primary agreement to fourth defendant. Unless this agreement is somehow tainted, and it has not been shown how it is, theft cannot be said to have occurred. The Ministry paid over money which in any event it had to pay over to the fourth defendant as part of the agreement: no more and no less. Whether the advance payment was paid when it should not have been does not advance the case for theft.

[30] We are satisfied that the founding papers disclose no evidence of theft or fraud. But that is not the end of the matter. To grant the order sought, it only needed to appear to the court on reasonable grounds that there might be a conviction and confiscation order in respect of one or more –not all- the offences alleged by the applicant.

Offences under the Anti-Corruption Act

[31] This leaves the two offences pursuant to the Anti-Corruption Act, No 8 of

2003 for consideration. In terms of sec. 33 of the Anti Corruption Act, a person commits an offence where such person directly or indirectly corruptly agrees to accept or accepts for his/her benefit any gratification as a reward for having done anything. Pursuant to sec 42(2) a person commits an offence who corruptly accepts or agrees to accept for his or her benefit or for the benefit of another any gratification as a reward for giving assistance or using influence or having done so in the execution of a contract with a public body. In the context of the Anti-Corruption Act one must further bear in mind the meaning of certain words as defined in this Act. One of the meanings of “corruptly” is a contravention of any law pertaining to any employment the relationship. “Public body” includes any Ministry.

In terms of s32 of the Anti-Corruption Act “corruptly“ means:

“... in contravention of or against the spirit of any law, provision, rule, procedure, process, system, policy, directive, order or any other term or condition pertaining to –

1. any employment relationship;

2. any agreement, or

3. the performance of any function in whatever capacity;”

[32] It needs to said at the outset that the entire transaction (as between the first, second and third defendants) was premised on Teko Trading CC and its members (first and second defendant) influencing the Namibian authorities with respect to the contract between the fourth defendant and the Ministry of Finance. That much admits of no doubt. In fact the agreement states so in stentorian terms. It also deserves mention that the first defendant was aware –indeed was required by law- not to engage in remunerative work unless she had the requisite permission to do so. First, second and third defendants, being business partners, must have considered first defendant’s role in the transaction- not least the implications arising from first defendant’s obligations under the law in seeking approval given her vintage position as a public service commissioner. It is against that backdrop that Becker alleges against the first defendant corruptly accepting gratification contrary to section 33 of the Anti-Corruption Act. He also specifically alleges corrupt acceptance of gratification for giving assistance in the promotion , execution or procuring of a contract with a public body contrary to section 42(2) of the Anti Corruption Act , committed by the first , second and third defendants, aided and abetted by the fourth defendant.

[33] The way the payment in respect of the primary agreement was structured, coupled with the subsequent agency / consultancy agreements, makes it highly unlikely that fourth respondent did not know that the advance payment would not be for its benefit. It is equally highly unlikely that an agreement to pay such a substantial amount of money would have been entered into subsequent to the primary agreement being finalised. Further, the amount of the advance payment ties up so neatly with the amounts appearing in the subsequent agreements to be a mere coincidence. The fourth respondent covered itself in respect of this expense (advance payment) by negotiating for the Government of Namibia to carry this expense and to do so upfront. Third respondent, as the representative of the fourth respondent, must have been aware of this position. He signed the agreement and clearly must have made some arrangements with first and second defendants in view of what happened to the money paid over to second respondent. To sum up, fourth respondent must have known from the outset that it would have to make provision for an amount (described as an advance payment) in its negotiations for a purchase price so as to enable it to pay to its “facilitators” in Namibia. This it did by getting the Namibian government to make the advance payment.

[34] It is further a plausible inference to draw that fourth respondent would not pay over an amount as substantial as the advance payment out of pure generosity. After all, third defendant was its employee. Furthermore, in view of the agreements between fourth defendant and second respondent, it is clear that fourth respondent knew its “facilitator” was a Namibian entity. It is also not likely- taking the primary contract and the advance payment into consideration - that it would not have any knowledge as to the persona behind second respondent and especially the high profile position of first defendant and the legal obligation that applied to her under the Public Service Commission Act.

[35] Further, on a prima facie basis the actions of fourth respondent’s representative (third defendant) can be ascribed to it. If regard is had to the provisions of sections 33 and 42(2) of Act 8 of 2003, there exist reasonable grounds to believe that a confiscation order may be made against first defendant: She contrary to the Public Service Commission Act performed remunerative work. As per definition this activity was corruptly done and she did so for the work done as stipulated in the consultancy or agency agreement(s). The tasks stipulated in the consultancy or agency agreements clearly contemplates gratification for the giving of assistance and may even include using influence to “facilitate the Namibian Ministry of Finance and other governmental authorities” in respect of matters such as licenses, permits and official approvals. It was clearly contemplated that there would be assistance with the execution of the primary contract.

[36] Whereas a case has been made out against first defendant, the question that arises is: to what extent does this affect the other defendants?

If one has regard to the manner in which second respondent was utilised to channel the initial payment, it is justifiable and reasonable to draw the inference that it was a mere conduit utilised for this exact purpose. Given the fact that second defendant was the co-member (in the second respondent) with first defendant, he must have known that first defendant would share in the initial payment in consideration for remunerative work prima facie performed contrary to law. He also knew what that the payment was intended for, namely to assist with the execution of the contract and to use the influence of first defendant to smooth over potential problems in the execution of the contract. In these circumstances, the founding papers also pass muster insofar as the second defendant is concerned.

[37] It is justifiable and reasonable to infer that third defendant knew at the time the agreement was concluded that the initial payment would not go to the seller (fourth defendant). After all he was the fourth defendant (seller’s) African representative and signed the agreement on its behalf. He received the lion’s share of the proceeds transferred to Namibia which he must have received in terms of some agreement with at least first and second defendants. It is also highly unlikely that third defendant was in the dark about the fact that second respondent would be used as a conduit for the channelling of the initial payment to him and the first and second defendants. He is closely connected to second respondent in that it is his intended employer which uses his house as its registered address. He was not abroad but in Namibia and must also have been aware of first defendant’s position as a Public Service Commissioner. In view of how the proceeds of second respondent were shared, it is reasonable to infer that he was a party to this.

[38] The relevant facts and inferences that can be drawn in respect of fourth respondent have been set out above and as already stated it must have known that second respondent would be its ”facilitator “ with the government of Namibia for a considerable remuneration and relying on the vintage position of first defendant within the structures of the public service. Its Africa’s representative (third defendant) was key in this process of using second respondent as facilitator. In the circumstances, a sufficient case was made out against it.

[39] In our view, there are more than reasonable grounds for believing that first, second, third and fourth defendant will be found guilty of the offences under the Anti Corruption Act alleged by Becker and Becker amply points to the sources for the evidence that will be relied upon in support of those allegations.

[40] It therefore follows that the second point in limine based on whether the order should have been granted on the material set out in the founding papers of applicant also falls to be dismissed.

[41] Counsel for the applicant submitted that considering that the present proceedings are provisional and interim in nature costs should be in the cause to be dealt with by the trial court. We agree.

[42] The points in limine taken on behalf of the first, second and third defendants and first to sixth respondents are dismissed. Costs shall be in the cause.

[43] The applicant is hereby ordered to file replying affidavits (if any) within seven days of this order. The Rule Nisi is extended to 14 September 2009 unless the parties obtain an earlier date for the hearing of the remainder of the issues raised in the answering papers.

___________________ ____________________

DAMASEB, JP FRANK, AJ

ON BEHALF OF THE APPLICANT: Adv G Bendlender, SC

Assisted by: Adv D Small

Instructed by: Prosecutor-General

ON BEHALF OF 1^ST, 2^ND, AND 3^RD DEFENDANTS: Adv J Gauntlett, SC

Assisted by: Adv R Heathcote

Instructed by: Sisa Namandje & Co

ON BEHALF OF 4^TH DEFENDANT: Adv L Botes

Instructed by: Stern & Barnard

ON BEHALF OF 1^ST, 2^ND, 3^RD, 4^TH, 5^TH & 6^TH RESPONDENTS:

Adv J Gauntlett, SC

Assisted by: Adv R Heathcote

Instructed by: Sisa Namandje & Co