Roland Routh
Windhoek-In a damning judgement on the conduct of the Prosecutor General (PG) Martha Imalwa when applying for preservation orders in Prevention of Organised Crimes Act (POCA) cases, Deputy Judge President Hosea Angula barred the PG from applying for second preservation orders on an ex parte (without notifying the other party) basis, where she deliberately allowed the first to lapse.
Judge Angula said in his view the PG acts unfairly and unprocedurally when she lets a preservation order obtained as such lapses and then applies for a new order on the same basis.
He said this when he set aside a preservation of property order granted on May 26 this year against a Spanish fishing company for alleged money laundering and illegal fishing in Namibian waters.
The company, Atlantic Ocean Management (Pty) Ltd, lodged an urgent application in June this year to prevent the PG from obtaining a second preservation order for money in the amount of US$886,722.20 (about N$11,4 million) held in account number CFC 8005 259 340 at Bank Windhoek, Walvis Bay.
According to Judge Angula, there were no compelling reasons for the PG to have brought the second application on an ex parte basis and without notice to the other party, and accordingly the PG inappropriately and incorrectly exercised her statutory discretion, which negatively affected the applicant’s right to a fair trial.
He further said the PG committed material non-disclosure in both the first POCA application when she failed to inform the court that the determination upon which she had obtained the first preservation order was not in force, and in the second preservation order, by not disclosing the circumstances under which the first order was erroneously granted.
According to the judge, it was also not permissible for the PG to have applied for and be granted a second preservation order after she deliberately allowed the first order to lapse.
He ordered the PG to pay the costs of the applicant and to include one instructing and two instructed counsel.
Judge Angula stressed that the PG’s conduct seriously impaired and compromised the applicant’s constitutional right to a fair trial in that: the PG served the first preservation order on the applicant and called upon them to reveal their defence, and when the applicant did so the PG thereafter deliberately allowed the first order to lapse.
Shortly thereafter, and without notice to the applicant, the PG approached the court and attached papers containing the applicant’s defence to her papers and extensively discredited the applicant’s defence without the applicant being afforded an opportunity to be present and to articulate their defence.
“It follows therefore in my view that the PG inappropriately and incorrectly exercised her statutory discretion which negatively affected the applicant’s rights to fair trial guaranteed by Article 12 of the Constitution,” Judge Angula stated.
He went on to say the PG is required in each case to undertake a process of evaluating the facts and the circumstances in order to decide whether or not to bring an application ex parte, and only after she has undertaken that process might she properly decide to bring such an application.“There is no automatic entitlement to bring each and every application for a preservation order on an ex parte basis,” the deputy judge president stressed.
He further said in all matters where a discretion is vested upon a functionary, such as on the PG by the POCA Act, such discretion must be exercised fairly, reasonably, in the interest of justice and without caprice, malice or ulterior motive.
This, he said, means that there is a heavy obligation on the PG to exercise such discretion for legitimate purpose and with utmost good faith.
Atlantic Ocean Management (Pty) Ltd was represented by senior counsel Richard Heathcote, assisted by Advocate Japie Jacobs on instructions from Van Der Merwe-Greeff Andima Incorporated, and the PG by Marius Boonzaaier from the Office of the Government Attorney.