A Windhoek couple wants certain sections of the Prevention of Organised Crime Act (POCA) declared unconstitutional after such sections were used to freeze their accounts containing over N$19 million.
Martin Shilengudwa and his wife Hilma Shilengudwa want the court to declare the definition of “proceeds of unlawful activities”, which phrases “includes property which is mingled with a property that is proceeds of unlawful activity”, declared unconstitutional.
They claim the wide definition of “proceeds of unlawful activity” has a crippling effect on properties lawfully attained.
The Shilengudwas attack on the law comes after a preservation order was granted against their accounts subsequently when they sold a property to the Business and Intellectual Property Authority (Bipa) for N$18 million in 2017.
This Wanaheda property, which measures 1 214, was at the time used as a restaurant, bar and gambling house.
The sale of the property was mired in controversy as it was sold for N$18 million, which is allegedly above its value of N$4.6 million. As a result, government dragged the couple and former Bipa CEO Tileinge Andima to court, claiming a refund of the N$18 million, the cancellation of the deed of sale and sale transaction as well as a refund of N$2 million in transfer fees. Andima was subsequently suspended as CEO and has since left Bipa. In court documents, prosecutor general Martha Imalwa said the preservation order was needed as there is reason to believe the couple’s money was attained through unlawful means. She said there is reason to believe that fraud was committed when four property evaluators concluded that the property’s value was between N$4 million and N$4.8 million and not the value it was sold for. Appearing on behalf of the Shilengudwas, lawyer Raymond Heathcote said the couple did not commit any unlawful activity and they are innocent. He said the couple’s life savings have no link whatsoever to the alleged unlawful activity, save for the mingling. “All that they did was to sell their property to a state-owned enterprise. Some say the price was more than the actual value, but so what? The value, is what the property fetched on the open market,” said Heathcote. Imalwa’s lawyer Geoff Budlender argued it is very hard to separate lawful proceeds from unlawful proceeds when they have been mingled together. “They have lost their separate identity, and are not capable of being separately attached or dealt with,” said Budlender. Prior to the sale of the property to Bipa, the couple’s account had N$5.4 million in it. In September 2017, N$16.9 million which forms part of the N$18 million was deposited. Some of the funds were transferred to an investment account, while other payments totalling N$3.8 million were also made. “The N$16 982 538.01 which was allegedly the proceeds of unlawful activity has become inextricably mingled with the other funds in the account. Any attempt to separate them would raise a series of irresolvable difficulties,” said Budlender. The court will give a ruling on 14 April 2023.
-mamakali@nepc.com.na