WINDHOEK – Acting High Court Judge Collins Parker yesterday dismissed an application to condone non-compliance with the relevant provisions of the Prevention of Organised Crime Act 29 of 2004 (POCA).
The applicant, Ignatius Haufiku Mwashekele, failed to declare his interest in a preservation order granted by the court in May 2013 in relation to an amount of N$207 000 and a Toyota motor vehicle within the prescribed time limit.
The Act makes provision for a person with interest in such proceedings to give notice within 21 days of his intention to oppose the preservation order.
If no such notice was given within the prescribed time an interested person may within fourteen days of him or her becoming aware of the existence of a preservation or property order apply for condonation.
The High Court may grant condonation if it is satisfied the applicant was either unaware of the preservation order or that it was impossible for him or her to give notice of interest and whether the person has interest in the property.
In the present matter the judge said the applicant failed to satisfy the court.
He said the argument of Mwashekele’s legal representative Dennis Khama that the court has an “inherent power” to condone the failure of the applicant to apply for condonation of his “first failure” to declare his interest holds no water.
In fact, the judge said, the use of the term “inherent power” at large and loosely, without reference to a specific aspect of a particular law, makes the term empty, meaningless and otiose.
He said the applicant’s failure to seek condonation for his failure to declare his interest cannot be entertained as the court does not have the power to act contrary to an express provision of an Act of Parliament.
He noted the legislature in its wisdom has seen it fit to give the court discretionary power to condone a first failure – albeit a guided discretionary power.
It is clear therefore, the judge said, that the court has not been left to its own devices when it comes to considering condonation applications in terms of POCA, but was given strict guidelines.
“If it was the intention of the legislature to give the court a second power to condone a second failure, nothing would have prevented the legislature from making such intention known by express words,” the judge emphasised.
He said the Act makes provision for only one condonation application and not two as Khama wanted to argue and as a result he dismissed the application with costs. The PG was represented by Advocate Mariette Boonzaaier.
By Roland Routh