CASE NO CA 57/2017

Ref: CA 11/2016

DATE OF HEARING 20 APRIL 2018

PRESIDING JUDGES: HONOURABLE SIBOLEKA J.

HONOURABLE SALIONGA J.

IN THE HIGH COURT OF NAMIBIA (MAIN DIVISION)

HELD AT WINDHOEK

In the matter between:

FELIUNO ABILIO JANO MIGUEL 1 ST APPELLANT

FRANCISCO SOSSINGO 2 ND APPELLANT

JOAQUIM ANTONIO 3 RD APPELLANT

And

THE STATE RESPONDENT

RESPONDENT’S HEADS OF ARGUMENT

INTRODUCTION

The Appellants were arraigned before the Regional Magistrate Ms M. Du

Plessis in the Regional Court for the Magisterial District of Otjiwarongo, on

charges of contravening the Exchange Control Regulations, 1961,

contravening the Immigration Control Act and fraud and money

laundering offences in terms of POCA. At the close of the state's case the

magistrate, in terms of s 174 of the Criminal Procedure Act, 1977

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discharged the Appellants in respect of the charges relating to the

contravention of the Exchange Control Regulations, but put them on their

defence in respect of the charges relating to fraud, money laundering and

contravention of the Immigration Control Act. On 27 February 2017, the

magistrate handed down her judgment convicting the respondents of

contravening s 6(d) read with ss 1,4,5 6 (a), 6 (c) and 11 (1) of POCA, and

of contravening s 7 read with ss 6, 8 and 9 of the Immigration Control Act.

The respondents were each sentenced to:

(a) A fine of N$150 000 or one year's imprisonment for the money

laundering offence in contravention of s 6(d) of POCA; and

(b) a fine of N$2 000 or six months' imprisonment for contravening G s 7

of the Immigration Control Act.

Notwithstanding the finding of guilt and a request by the state for the

magistrate, in terms of s 35 of the Criminal Procedure Act, 1977 to order

the forfeiture of the cash and the Hyundai motor vehicle which were seized

by the arresting members of the Namibian Police at the time of arresting

the Appellants, the magistrate ordered that the Hyundai motor vehicle be

returned to the lawful owner, upon production of proof of ownership and

that the cash be handed back to the respondents.

The Respondent was aggrieved by the judgment and order of the

magistrate and it immediately in terms of s 310 of the Criminal Procedure

Act, 1977 filed a notice for leave to appeal against the order, the sentence

as well as the s 174 of the Criminal Procedure Act, 1977 discharge

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specifically in relation to the contraventions in terms of the Exchange

Control Regulations. At the Respondent launched proceedings in this

Honourable Court seeking an order directing that the execution of the

order of the magistrate directing that the cash be handed over to the

respondents be stayed pending the finalisation of the appeal proceedings

and that the cash remain at the Bank of Namibia pending the finalisation

of the appeal proceedings. The Appellants unsuccessfully opposed that

application. Belatedly they filed a counter appeal.

AD CONDONATION

1. It is common cause that the Appellants’ cross-appeal was filed way

out of the prescribed time limits hence the application for

condonation. The affidavit in support of the application for

condonation has been deposed to by the Appellants’ legal

practitioner of record. However no confirmatory affidavit has been

filed by any of the Appellants. This has the result of making the

application for condonation fatally defective. There is therefore no

application for condonation before this Honourable Court. See the

case of S v KASHIRE 1978 (4) SA 166 (SWA) where it was stated as

follows;

“The proper procedure for the obtaining of condonation of

the late filing of a notice of appeal is by way of an

 4

application, supported by an affidavit made by the accused

(the present applicant), and since he would in all probability

be unaware of the time limit prescribed in s 316 he would

have to rely upon a supporting affidavit by his counsel in

which the latter explains how the late filing of the notice of

appeal came about. I have considered postponing this

application so that this procedure can be followed but, as

the applicant is under sentence of death, I deem it highly

undesirable that he should be kept under such sentence

any longer than is absolutely necessary and that justice

should be done as expeditiously as possible.”

No explanation has been proffered as to why the correct procedure

has not been. The only reason why such a transgression was

condoned in the KASHIRE case supra was because the applicant was

under sentence of death. That is not the case in the present case and

accordingly the purported appeal by the Appellants must be struck

off the roll.

2. As it were the Appellants legal practitioner has made averments in

the affidavit of crucial issues that are beyond his personal

knowledge that are relevant for this Honourable Court to decide

whether the Appellants were in wilful default or not. The issue of the

alleged struggles by the Appellants relatives and the inaccessibility

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of the Appellants is something the legal practitioner can personally

vouch for. The legal practitioner has not explained why he did not

take instructions to appeal at the time he took instructions to

oppose the Respondent’s case to stay the execution of the Regional

Court Magistrate’s orders. See PROSECUTOR-GENERAL v MIGUEL

AND OTHERS 2017 (2) NR 381 (HC) which case was argued on the 10th

March 2017. At the relevant time the appellants had been served

with the Respondent’s application for leave to appeal. As it more

fully appears from their opposition, their concern was to have the

application by the Respondent struck off the roll by raising technical

issues so that they could have access to the money and the car. It’s

clear that they had accepted their conviction and were happy with

the orders that had been made by the trial magistrate, hence the

put their efforts on defending her orders. In the circumstances it is

the Respondent’s humble submission that the application for

condonation was made in good faith. The decision to appeal was an

afterthought long after they had failed to stop the Respondent from

blocking their access to the money and the car.

3. Furthermore no explanation has been given as to why there was an

inordinate delay to file the application for condonation. This is fatal to

the Appellant’s application. See the case of State v Homses CASE

NO.: SA 12/2014: Neutral Citation: S v Homses (SA12-2014) [2016]

 6

NASC (8 June 2016) where it was stated as follows at page 4 of the

cyclostyled judgement;

“We allowed counsel for the respondent to address us on the

condonation application. His strong point against the explanation

for the delay in lodging the appeal record with this court was the

failure on the part of the appellant to lodge the application for

condonation for the late filing of the appeal record. Regrettably

counsel for the appellant was mute on that score. I have stated

above how the application for condonation came about to be filed.

Had the Registrar of this court not declined to allocate the date for

the appeal until the application for condonation was filed, the

application would probably not have been filed. What counts

favourably for the appellant on that point is the fact that counsel

for the appellant made an enquiry as to the non-allocation of the

appeal date. The Prosecutor-General owes duties to the public to

pursue appeals with reasonable expedition. See S v Carter 2007 (2)

SACR 415 (SCA) at 422G. ‘The application for condonation must

thus be lodged without delay, and must provide a “full, detailed

and accurate” explanation for it’. See Arangies t/a Auto Tech v

Quick Build 2014 (1) NR 187 (SC) at 189F-190B. There is no

explanation why the condonation application was not filed on time,

which could be fatal to the appellant’s case. It is un-imaginable

that counsel for the appellant was unaware given the date on
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which leave to appeal was granted, and the time the appeal record

was filed that, the application for condonation was necessary.”

4.

IN DETAIL

5. However, if this Honourable Court is of the view that the Appellants

should be granted the indulgence so sought, it is the Respondent’s

humble submission that their appeal against conviction is without

merit and it should be dismissed. In addition to the direct evidence

that was adduced by the State, this case called for the trial court to

draw inferences from the evidence that was led. In the case of S v HN

2010 (2) NR 429 (HC), LIEBENBERG J stated at page 443 as follows;

“Where the court is required to draw inferences from

circumstantial evidence, it may only do so if the 'two cardinal

rules of logic' as set out in R v Blom 1939 AD 188, have been

satisfied. These rules were formulated in the following terms:

‘‘(1) the inference sought to be drawn must be consistent with all

the proved facts. If it is not, then the inference cannot be drawn .

(2)The proved facts should be such that they exclude every

reasonable inference from them save the one to be drawn. If they

 8

do not exclude other reasonable inferences, then there must be

doubt whether the inference sought to be drawn is correct.' [At

202 in fin.]

In S v Mtsweni 1985 (1) SA 590 (A) at 593E – G Smalberger AJA

(as he then was) referred with approval to the remarks of Lord

Wright in Coswell v Powell Duffryn Associated Collieries Ltd

[1939] All ER 722 at 733 which read as follows:

'Inference must be carefully distinguished from conjecture or

speculation. There can be no inference unless there are objective

facts from which to infer the other facts, which it is sought to,

establish. In some cases the other facts can be inferred with as

much practical certainty as if they had been actually observed.

In other cases the inference does not go beyond reasonable

probability. But if there are no positive proved facts from which

the inference can be made, the method of inference fails and

what is left is mere speculation or conjecture . . . .'

The State thus carries the burden of proving the allegations

contained in each charge against the accused beyond a

reasonable doubt and in Miller v Minister of Pensions [1947] 2 All

ER 372 at 373 Denning J (as he then was) stated it in the

following terms:

'It need not reach certainty, but it must carry a high degree of

probability. Proof beyond reasonable doubt does not mean proof

 9

beyond the shadow of a doubt. The law would fail to protect the

community if it admitted fanciful possibilities to deflect the

course of justice. If the evidence is so strong against a man as to

leave only a remote possibility in his favour which can be

dismissed with the sentence of course it is possible, but not in

the least probable, the case is proved beyond reasonable doubt.'

The law does not require from a court to act only upon absolute

certainty, but rather upon just and reasonable convictions.

When dealing with circumstantial evidence, as in the present

case, the court must not consider every component in the body

of evidence separately and individually in determining what

weight should be accorded to it. It is the cumulative effect of all

the evidence together that has to be considered when deciding

whether the accused's guilt has been proved beyond reasonable

doubt. In other words, doubts about one aspect of the evidence

led in a trial may arise when that aspect is viewed in isolation,

but those doubts may be set at rest when it is evaluated again

together with all the other available evidence (S v Hadebe and

Others 1998 (1) SACR 422 (SCA) at 426e – g).”

6. The witness R.P. Nambawanga testified on the procedure when the

person is entering or departing Namibia. See page 55 of the record.

The person is required to present himself/herself before an

immigration officer and the passport will be endorsed to authorise

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your entry into the country or your departure from the country.

Copies of the passports of the Appellants that have been attached as

exhibits show that on all other occasions they entered Namibia there

are entry and departure stamps. See pages 827-839 of the record.

This shows that they were aware of the legal requirements. What is

not in dispute is that after the entry stamps of the 16 th September

2015 there are no other stamps that indicate that they exited the

country and re-entered the country. It is not in dispute that they left

Namibia for Angola on the 17 th September 2015. They again re-

entered Namibia on the 22nd September 2015. Their passports were

not endorsed on those days. However on the 22 nd September they

applied for the import permit for the car they were arrested travelling

in. During his evidence in chief the First Appellant testified that on

the 17th September 2015 they found the border closed and the

Immigration officials had left. They were allowed out by a police

officer. According to him that was the practice at Oshikango border

post. Further the first Appellant testified that when they came on the

22nd they did not present themselves before the Immigration officials

because they still had days granted to them when they entered into

Namibia on the 16th September 2015. Contrary to the explanations

by the first Appellants, it is clear from the evidence of Ms Amukotu,

an immigration officer employed by the Ministry of Home Affairs and

stationed at Oshikango who testified during the bail application, that

 11

no person is permitted to enter or depart from Namibia without his

or her passport being endorsed by an immigration official. This was

also the tenor of the evidence of R.P. Nambawanga who testified

during the trial. The Appellants version was not put to these

witnesses. Failure to do this was fatal. It means their evidence

stands uncontroverted. See the case of S v AUALA 2010 (1) NR 175

(SC) at page 181 where it was stated as follows;

“The court rightly referred to the rule and practice to put the

defence case to State witnesses 'to ensure that trials are

conducted fairly; that witnesses have the opportunity to answer

challenges to their evidence, and parties to the suit know that it

may be necessary to call corroborating or other evidence relevant

to the challenge that has been raised'. In this regard the learned

judge a quo referred to S v Boesak 2001 (1) SA 912 (CC) (2001 (1)

SACR 1; 2001 (1) BCLR 36), where it was said (in para 26): 'A

criminal trial is not a game of catch-as-catch-can.'”

Thus it is difficult for anyone to fathom on what basis it being

alleged that the learned Regional Court Magistrate wrongly

convicted the Appellants in the light of the overwhelming evidence

against them.
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7. The failure to present themselves before an immigration officer on

the 22nd September 2015 should not be looked at in isolation. The

Appellants very well knew the laws governing the importation of

currency into Namibia from Angola. Both First and Second

Appellants testified that they knew that an individual was only

permitted to exit Angola with a maximum of N$ 150 000.00. To

circumvent the law they used other individuals to courier the money

into Namibia in contravention of the law. See pages 458 and 536

of the record. In Namibia they never presented themselves before

the immigration or customs officials. This Honourable Court is at

liberty to take judicial notice that that procedure is mandatory at

our borders. Therefore their failure to do so is indicative that they

knew that they were contravening the laws of Namibia in a bid not

to account for the large amounts of money they consequently

smuggled into Namibia.

8. During their bail applications the Appellants testified as to how these

sums of money came into their possession. Each testified that it was the

proceeds of their operations as money-brokers in Angola. According to

them they conducted their business on the street and was not by law

required to be licenced or registered in any way to ply their trade. First

Appellant further testified during the trial that he was not an authorised

dealer in currency in Angola. See page 276 of the record. It is that

 13

money that he changed that he brought into Namibia. It follows that if one

is not authorised, it means that one is not permitted at law to do that

particular act. Surely the accused cannot want this Honourable Court to

believe that there is no law in Angola that regulates foreign currency

exchange if by their own admission there is a law that prohibits an

individual to take out of Angola an amount that exceeds N$ 150 000.00.

Also Second Appellant testified during his bail application that he is not

licenced to do foreign exchange. See page 537 of the record. On the

following page he stated that he started buying the money from Oshikango

as well as people that had licences. It was just not him who was buying

money without a licence but other people as well. Surely that other people

were transgressing the law does not make the practice legal. What further

compounds the Appellants circumstances is that the first Appellant

testified that when they were arrested they were en ’route to Windhoek to

change the Namibian dollars into American dollars at a house they call

Bureau Exchange for American dollars. The place is known by his cousin.

See pages 244-245 of the record. He did not testify that the place is an

authorised agent of the Bank of Namibia and it being a “house” for all

purposes points to an illegality. According to witnesses Christofina

Kawikua and Claudia Matheus for one to change currency at an

authorised dealer one is required to produce a passport, proof of source of

funds and a declaration from customs. Since the Appellants had evaded
 14

the immigration and custom officers they were never going to be able to

conduct the purported transaction legally.

9. Contrary to the testimony of the First Appellant during his evidence in

chief and other Appellants during their bail application the money that

was found in their possession had not been exchanged at authorised

dealers in Oshikango during the period extending from August 2015 to the

period immediately before their arrest. According to the investigating

officer, the Bank Windhoek stamp that was on the tags placed on the

money was for the dates 14th and 16th September 2015. The

documentation provided by the Appellants allegedly as proof that certain

eleven persons exchanged the money on their behalf bore the date 05 th

August 2015. Christofina Kawikua testified that these people’s names did

not appear on their system for the 14th and 16th September 2015 and the

Appellants’ names never appeared at all. The evidence of the investigating

officer was not controverted and the Appellants’ never explained the date

stamps found on the money in their possession. Further the investigating

officer testified that the cell phones of the First and Second Appellants

were using the Oshikango tower on the 14 th September 2015 but their

passports have no endorsement for that date a fact that shows that they

were again in Namibia illegally on that date.

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10. The evidence available clearly shows that the Appellants engaged in a

series of activities that were unlawful in Namibia in the process of

acquiring the money that was eventually found in their possession.

Coupled with the reasoning of the trial magistrate, it is the Respondent’s

humble submission that the Appellants were properly convicted and

accordingly their appeals against convictions should accordingly be

dismissed.

AD SENTENCE.

11. It is, indeed a settled rule of practice that punishment falls within the

discretion of the trial court. As long as the discretion is judicially,

properly, and reasonably exercised, an Appellate Court ought not to

interfere with the sentence imposed. See S v VAN WYK 1992 (1) SACR 147

(NmS) where it was stated at page 165 as follows;

“Punishment being pre-eminently a matter for the discretion of

the trial Court, the powers of a Court on appeal to interfere with

sentence is limited. Such interference is only permissible where

the trial Court has not exercised its discretion judicially or

properly. This occurs when it has misdirected itself on facts

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material to sentencing or on legal principles relevant to

sentencing. It will also be inferred that the trial Court acted

unreasonably if '(t)here exists such a striking disparity between

the sentences passed by the learned trial Judge and the

sentences which this Court would have passed (Berliner's case

supra at 200) - or, to pose the enquiry in the phraseology

employed in other cases, whether the sentences appealed against

appear to this Court to be so startlingly (S v Ivanisevic and

Another (supra at 575)) or disturbingly (S v Letsolo 1970 (3) SA

476 (A) at 477) inappropriate - as to warrant interference with the

exercise of the learned Judge's discretion regarding sentence'

See also the case of S v NDIKWETEPO AND OTHERS 1993 NR 319 (SC)

which buttresses the same sentencing legal principles.

12. Guided by the above principles it is the Respondent’s humble submission

that this Honourable Court should indeed interfere with the sentence in

the present case because it is not a suitable, appropriate and adequate

sentence. This Honourable Court has previously emphasized the

seriousness of the offence of money laundering. Section 6 of Prevention of

Organised Crime act 29 of 2004 makes it an offence to acquire, use,

possess, import or export the proceeds of unlawful activities. Section 11

sets out the penalties for money laundering. They are severe and include a
 17

fine not exceeding N$1 million or imprisonment for a period not exceeding

30 years for a contravention of s 4, 5 or 6 of POCA. In dismissing the

Appellants’ appeal against refusal of bail, this Honourable Court among

other factors considered that the Appellants were facing serious charges

under POCA and, undoubtedly, were likely to attract severe punishment if

they were to be convicted. See the case of S v MIGUEL AND OTHERS 2016

(3) NR 732 (HC) at page 744. It is therefore mind boggling that upon

convicting them of those charges, the trial magistrate treated them with

kid gloves by handing them such a very lenient sentence which certainly

defies logic.

13. The net effect of the sentence was to make the Appellants accrue a benefit

from their unlawful activities, as, after paying the fine imposed, the

respondents would be left with a residue far greater than the fine paid.

Such a result undoubtedly erodes the confidence of the law-abiding

citizenry in the administration of justice. As was noted by this Court in

the S v Majiedt CC 11-2013) [2015] NAHCMD 289 (1 December 2015),

per Liebenberg J

“The court fulfils an important function in applying the law in

society and has the duty to maintain law and order, as well as

promote respect for the law by its decisions and the imposition

of sentence………For the court to derive at a just sentence it

need to strike a proper balance between the interest of the

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accused, as well as that of society. Courts are the mouthpiece of

society and must through its sentences show that such crimes

will not be tolerated and will be duly punished.”

AD: REFUSAL TO ORDER FORFEITURE OF THE MONEY AND THE

CAR SEIZED

14. The reasoning of the trial Magistrate shows that she fell into the error of

believing that forfeiting the money would amount to double punishment.

This was wrong. See the case of LAMECK AND ANOTHER v PRESIDENT OF

THE REPUBLIC OF NAMIBIA AND OTHERS 2012 (1) NR 255 (HC) where the

purpose of POCA was put into perspective at page 274 as follows;

“[71] But more importantly in this context, I respectfully agree with the

approach adopted by the Constitutional Court in South Africa in S v Shaik

and Others that the purpose of asset forfeiture under similar legislation is

not to punish. In S v Shaik, O'Regan ADCJ stated on behalf of a

unanimous court:

'In my view it is this clause in the preamble which points most directly

to the key purpose of Ch 5: to ensure that no person can benefit from

his or her wrongdoing. That this is the primary purpose of Ch 5 has

also been recognised by the Supreme Court of Appeal, which held in

National Director of Public Prosecutions v Rebuzzi that ''(t)he primary

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object of a confiscation order is not to enrich the state but rather to

deprive the convicted person of ill-gotten gains.''

'From this primary purpose, two secondary purposes flow. The first is

general deterrence: to ensure that people are deterred in general from

joining the ranks of criminals by the realisation that they will be prevented

from enjoying the proceeds of the crimes they may commit. And the second

is prevention: the scheme seeks to remove from the hands of criminals the

financial wherewithal to commit further crimes. These purposes are entirely

legitimate in our constitutional order.'

O'Regan ADCJ concluded that part of the enquiry after her detailed

analysis as follows:

'Upon proper construction of the Act, I am not persuaded that a

primary purpose of Ch 5 is the punishment of offenders. Its primary

purpose seems rather to be to ensure that criminals cannot enjoy the

fruits of their crimes. It may well be that the achievement of this

purpose might at times have a punitive effect, but that is not to say

that the primary purpose is punitive.'

[72] The reasoning underpinning this approach was reaffirmed by that

court in Falk v National Director of Public Prosecutions where it held:

'The primary purpose of Ch 5 of POCA is not punitive, but to ensure

that no person benefits from his or her wrongdoing. Its secondary

purpose is to promote general crime deterrence and prevention by

depriving people of ill-gotten gains.'''

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[73] Mr Trengove also referred to the approach adopted by the South

African High Court in National Director of Public Prosecutions v Phillips

where that court stated:

'The mere fact that an application for a confiscation order follows upon

a criminal conviction and culminates in a judgment against the

defendant for payment to the state of an amount based on the benefit

he has derived from his crimes is not sufficient in itself to constitute

the proceedings criminal and to render the confiscation order criminal

punishment. . . .'

[74] This approach also accords with the characterisation of an order

obtained in such proceedings as a civil judgment by O'Regan ADCJ in

Shaik in her discussion of confiscation orders in the scheme of that

legislation:

'A confiscation order is a civil judgment for payment to the State of an

amount of money determined by the court and is made by the court in

addition to a criminal sentence. Before going further, it is important to

emphasise that the order that a court may make in terms of Ch 5 is

not for the confiscation of a specific object, but an order for the

payment of an amount of money to the State, even though it is

ordinarily referred to as a ''confiscation order'' and shall be throughout

this judgment . . . .'

[75] The South African High Court concluded in Philips that a confiscation

order under Ch 5 of the South African legislation was not punishment for a

criminal offence for the reasons articulated thus:

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'Whether a confiscation order constitutes punishment depends on its

purpose. It constitutes punishment only if its purpose is to punish the

defendant for his crime. But that is not the purpose of a confiscation

order. Its purpose is to deprive him of the ill-gotten gains of his

criminal conduct. That much is clear from the provisions of Ch 5. In

terms of s 18(1) a confiscation order may only be made against a

defendant who has derived benefit from his crimes. It follows that, if

two people are convicted of the same offence from which the one

derives benefit but the other not, a confiscation order may be made

against the first but not against the second. This distinction would

have been absurd if the intention was to punish. It makes sense only

because the purpose is the deprivation of the proceeds of crime. In

terms of s 18(2)(a) the amount of the confiscation order may not

exceed the value of the benefit derived H from the defendant's crimes.

This limitation also makes it clear that the confiscation order is

directed at the benefit and not the crime. The heinousness, severity or

impact of the crime is entirely irrelevant. In terms of s 18(2)(b) the

amount of the confiscation order may not exceed so much of the value

of the benefit as remains in the hands of the defendant and those of

third parties enriched by his affected gifts. Once again this illustrates

that the purpose of the order is to confiscate his gains and not to

punish him. If two people are convicted of the same crimes from which

they derive the same benefit and the one is still in possession of the

benefit but the other has lost it, a confiscation order would be

competent against the first but not the second. This distinction too
 22

would be out of place if the intention was to punish. In terms of s

30(2) read with ss 14(1) and 33(1)(b) a confiscation order extends to

and may be executed against the recipients of the defendant's gifts to

the extent of the value of those gifts. That would be illogical if the

purpose of the confiscation order was to punish because the Act does

not postulate that they are guilty of any offence at all. It makes sense

only because the purpose of the order is to deprive them of the value

of their enrichment by the affected gifts that they received from the

defendant. . . .”

15. It is also submitted that the Magistrate, in refusing forfeiture, erred by

overlooked that she was creating an intractable conundrum as, in effect,

she was giving back “proceeds of unlawful activities” which are fully

defined in the POCA, as: “any property or any service, advantage, benefit

or reward that was derived, received or retained, directly or indirectly in

Namibia or elsewhere, at any time before or after the commencement of

this Act, in connection with or as a result of any unlawful activity carried

on by any person, and includes any property representing property so

derived and includes property which is mingled with property that is

proceeds of unlawful activity. Such property (in this case the money) could

not be legally possessed, as at the conclusion of proceedings, it remained

illicit and to order its surrender to the respondents was tantamount to a

court-sanctioned laundering of such proceeds.

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16. Thus it was an irrelevant consideration, on which the trial court laid

much significance, that the respondents had suffered some hardship,

such as prior incarceration and or her having imposed what she

considered as “hefty fines” (As a somewhat startling analogy, what she did

by refusing forfeiture was tantamount to surrendering a stash of seized

cocaine out of misplaced sympathy, based on real or perceived hardships

endured by a the dealer-after his arrest!)

17. Similarly the evidence clearly shows that the vehicle had been used to

bring into Namibia the proceeds of crime. That was the instrumentality

envisaged by POCA. It was accordingly wrong to order its release in the

manner she did without even the alleged owner having to prove to court

that he/she was the rightful owner of the vehicle.

18. The learned magistrate erred and or misdirected herself in law as she

misinterpreted the forfeiture provisions as provided by the Criminal

Procedure Act 51/1977. It is clear that it is always not necessary that an

article be brought to court for purposes of trial, as section 33 (3)

stipulates that:

“The clerk of the court shall place any article received under
subsection (1) in safe custody, which may include the deposit of
money in an official banking account if such money is not required at
the trial for the purposes of evidence.” (Own emphasis)
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It is submitted that the primary objective of section 33 (3) (a) is to ensure

the security of exhibits and is therefore not a procedural requirement

which would necessarily bar the trial court from making an forfeiture.,

more so, in a case such as the present, where the money, could “not be

lawfully possessed by any person”.

Section 35 of the Act reads as follows:

35 Forfeiture of article to State

(1) A court which convicts an accused of any offence may, without

notice to any person, declare-

(a)any weapon, instrument or other article by means whereof the

offence in question was committed or which was used in the

commission of such offence;

(b) ……………..

forfeited to the State:

(2) A court which convicts an accused or which finds an accused not

guilty of any offence, shall declare forfeited to the State any article

seized under the provisions of this Act which is forged or counterfeit

or which cannot lawfully be possessed by any person.(Own emphasis)

In the circumstances the trial magistrates erred by declining to order

forfeiture as she did. The application by the prosecutor was adequate

because he went a step further by leading evidence from the investigating

 25

officer in circumstances where submissions from the bar would have

sufficed because the evidence justifying forfeiture was already on record.

See State v Joseph Joseph Kangamenwa and 6 Others CASE NO.

17/05 unreported judgement handed down on the 26th March 2008 at

page 16 of the cyclostyled judgement. Wherefore the Respondent prays for

an order setting aside the refusal by the trial magistrate to order the

forfeiture of the money and the vehicle to the State.

DATED AT WINDHOEK ON THIS THE 03RD DAY OF APRIL 2018

___________________________________________
E.E. MARONDEDZE
COUNSEL FOR THE RESPONDENT
C/O OFFICE OF THE PROSECUTOR-GENERAL
HIGH COURT OF NAMIBIA
WINDHOEK

TO: THE REGISTRAR

HIGH COURT OF NAMIBIA, MAIN DIVISION
WINDHOEK

AND TO: Sisa Namandje & Co.Inc

Legal Practitioners for the Respondent
 26

No: 11 Robert Mugabe Avenue

WINDHOEK