Windhoek-The Supreme Court this week upheld an appeal that the Prosecutor-General Martha Imalwa lodged against a decision by Windhoek High Court Judge Harald Geier to discharge a preservations order under the Prevention of Organised Crime Act (POCA).
In his ruling, Judge Geier found that Imalwa did not satisfy one of the regulations of POCA and refused to confirm an interim preservation order Imalwa obtained six months prior during an ex parte (without having to notify the other party) application.
The preservation order was obtained against Onesmus Nghitumu Taapopi who is accused of defrauding the Minister of Defence to the tune of N$1.6 million.
Taapopi allegedly falsely implied that he was the owner of a guesthouse where NDF students were to be accommodated for a year and he received the disputed money as a down payment.
Upon receiving the money from the NDF on September 18, 2014 he transferred N$800,000 the next day into an account at FNB held under the name of his son, Tulinane PS Hiskia, Himalwa charged.
This is the money that is now the subject of the court proceedings. Taapopi also faces criminal charges of fraud, theft and money laundering in respect of the transaction.
The preservation order Imalwa obtained in October 2014 against the money held in the FNB account was about to expire in May 2015 and Imalwa applied for an order confirming the initial order.
Taapopi, represented by Sisa Namandje, however opposed that order by raising an objection, saying Imalwa failed to comply with Regulation 7 of POCA, which states that she should have notified the respondent within seven days of her intention to confirm the interim order or asking the court to permit her to dispense with the seven-day notice.
Judge Geier upheld the objection and refused to confirm the provisional order, which meant the interim order was discharged.
Imalwa immediately moved to appeal that decision in the Supreme Court and in the same vein asked for an interdict restricting anyone from accessing the money, which was granted.
In the Supreme Court appeal, Imalwa argued that the High Court erred when it upheld Taapopi’s objection. Firstly, it said, based on the interpretation of s51 of POCA, she is allowed to apply for a preservation order once the requirements of s51 had been met.
Because an ex parte application by definition does not have respondents and s51 does not require service on any other person, the seven-day notice regulation does not apply, Imalwa contested.
Imalwa contended that in this instance the application was proper and there was no basis to apply to the High Court to dispense with the seven-day notice.
Acting Judge of Appeal Yvonne Mokgoro, with Judge Dave Smuts and acting Judge Fred Chomba concurring, found that reasonable grounds had been shown for the belief that the property – the positive balance in the FNB account of the respondent’s (Taapopi’s) son – had constituted the proceeds of unlawful activities, in particular, fraud and money laundering.
According to the three judges, the test of POCA has been met and once this is the case, it is dictatorial that an order for the preservation of property be granted.