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Amushelelo challenges ‘overbroad’ search warrants

2020-10-16  Roland Routh

Amushelelo challenges ‘overbroad’ search warrants

The civil matter in which forex trader Michael Amushelelo, who was last year arrested on charges that he contravened the Banking Act, is seeking to have two search and seizure warrants authorised by a Windhoek magistrate reviewed and set aside, started yesterday in the High Court. 

His lawyer Sisa Namandje argued the warrants issued by magistrate Johannes Shuuveni are overbroad and unintelligible. He said the warrants, while identifying the police officers authorised to search, do not identify the offences or the suspects. The warrants were used to seize computers, motor vehicles, cellular devices, documents and other electronic devices from his office and residence.

Amushelelo together with nine other applicants including eight of his companies and his mother are citing the magistrate that issued the warrants, the prosecutor general, the Bank of Namibia, the director of the Financial Intelligence Centre, the inspector-general of the Namibian Police and the commanding officer of the Anti-Money Laundering Sub-Division of the Namibian Police as respondents in the application. Only the magistrate, police chief and the anti-money laundering unit are defending the lawsuit.  

According to Amushelelo’s founding affidavit, the constitution guarantees the right to fair and reasonable public actions, as well as the right to carry on business and the right to privacy, all of which he has been denied upon his arrest.  
He further states that the search and seizure of his goods have left his business entities paralysed as almost every important personal and business document and about six motor vehicles have been seized on the basis of the warrants. 
“All computers with critical personal and business information were also seized,” he said and continued that he does not know where these properties are currently being kept. 

According to Amushelelo, the members of the police conducting the search had virtually ransacked the premises as they laid their hands on any document, item and goods and effects indiscriminately. He also said he was not provided with an inventory list of the items that were taken.  

He further avers that the warrants issued are unlawful as they are non-specific, non-concise and ambiguous. 
According to him, the magistrate who issued the warrants did not apply his mind at all and just rubberstamped a warrant that was compiled by the police who in any case are not permitted to conduct investigations into contraventions of the Banking Act unless instructed by an authorised official of the Bank of Namibia to do so. 

Magistrate Shuuveni in reply said that in determining whether the warrants were overbroad the high court must first determine whether the warrants are sufficiently clear as to the acts permitted, for if they were vague it would not be possible to demonstrate that they went no further than what the statute permitted. If, however, the magistrate continued, the warrants were clear in their terms, whether the acts they permitted went beyond what the statute authorises, then it can be said to be overbroad and thus invalid. 

However, it was argued on his behalf that the warrants identified the premises to search and that information provided to him under oath authorised him to issue the warrants. 
The respondents are represented by Marinus Boonzaaier and James Diedericks on instructions of the government attorney and the matter is presided over by Judge Eileen Rakow. –

2020-10-16  Roland Routh

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