Former head of the Democratic Republic of Congo’s army Francois Tete Olenga is fighting tooth and nail to have more than N$10 million forfeited to the Namibian government returned.

The Bank of Namibia (BoN), on instructions from the Financial Intelligence Centre (FIC), declared the money forfeited to the State because of the “uncertain origin.”

Olenga, through his lawyer Sisa Namandje, is now calling on the High Court to review and set aside the decision by Leoni Dunn.

Dunn, the current deputy BoN governor, on 4 August 2023 – when she was still the director of FIC – instructed that the funds held in an investment account at Nedbank Namibia be forfeited to the State. He is further asking the High Court to review and set aside all processes and decisions preceding on which the forfeiture order was premised.

Olenga likewise wants the High Court to declare the Foreign Currency Exchange Manual used by the BoN as invalid, null and void, and of no effect in law, and to set it aside.

He is further asking the court to award him costs against any of the respondents opposing the application.

BoN, Dunn, Brain Eiseb [director of exchange control and legal services at BoN], Nedbank Namibia and the FIC are cited in the lawsuit, which they all oppose.

Genesis 

Olenga said he opened the account on advice from an employee of Nedbank to invest in Namibia. It was for that reason that he caused an amount of more than N$10 million to be transferred from abroad and put in the investment account prior to 2018. However, he said, his troubles started in August 2018 when he received a letter from Nedbank, advising him that his bank accounts were restricted because of alleged proceeds of “unlawful activities.”

He said Nedbank advised him that they received a directive from Dunn to place a restriction on his accounts in terms of Section 9(2) (c) of the Financial Intelligence Act.

This section allows the government to combat money-laundering, terrorism financing and proliferation financing.

Olenga stated that the funds are not and never were proceeds of unlawful activities, and were never deposited in the investment account in a manner that contravenes or is reasonably suspected to be a contradiction of the Foreign Exchange Regulations. He claimed that the restrictions placed on his accounts are a serious abuse of power, and a flagrant disobedience of law. He fulfilled all obligations set upon him to invest in Namibia, and his legal practitioner provided all the necessary information to the respondents. Despite all this, Dunn – then in her capacity as deputy governor of BoN – decided to forfeit his funds. This, he said, was a wanton abuse of power, as Dunn was supposed to recuse herself from the matter, as she was previously involved in the matter in another capacity. 

Olenga added that it is that decision and all underlying processes, decisions and actions which are attacked in the proceedings, as Dunn could not have considered the matter with an open mind. The BoN, FIC and Dunn dispute the averments of Olenga. 

They state that despite several attempts to get Olenga to verify the source of the funds, the suspicious deposits into his accounts were inconsistent with or did not align with Olenga’s declarations of the occupations he held, and the sources of funds and wealth declarations he made over the years to Nedbank.

There were also no supporting documents, as required by law.

They further said because of serious misrepresentations by Olenga, a question mark hangs over the source of the funds, which authorised FIC and the BoN to investigate and intervene.

In respect of the currency manual, they claim that although it is not law, it contains all the conditions, permissions and limits applicable to transactions in foreign currency, is crucial for the effective implementation of the exchange control function, and should not be set aside in any circumstance. In the end, the institutions submitted that Olenga failed to make out a case for the relief he seeks, and that the application be dismissed with costs to include one instructing and one instructed lawyer.

Olenga was represented by Namandje, assisted by Matilda Jankie.

Meanwhile, Advocate Natasha Bassingthwaighte, assisted by Advocate Eva Shifotoka, represented BoN, Dunn and Eiseb. Advocate Raymond Heathcote, assisted by Ndinelao Kamati, represented Nedbank. Judge Hannelie Prinsloo is presiding over the matter.

She will deliver her verdict on 4 April next year. -rrouth@nepc.com.na