ACC bashed for overstepping bounds

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Roland Routh

Windhoek-Windhoek High Court Judge Thomas Masuku yesterday lambasted the Anti-Corruption Commission (ACC) for overstepping its authority when it agents searched, seized and attached two trucks and four containers full of timber from New Force Logistics, a local freight and logistics company.

Officers of the ACC seized and attached the property on January 2 after a search was made without a warrant at Walvis Bay.

The company, after fruitless attempts to get back its cargo, then instructed their legal representative, Khadila Amoomo to lodge an urgent application in the High Court to declare the “warrantless” search, seizure and continued detention of the company’s two Scania trucks, the four containers with the timber and permit documents, as unlawful, and to be set aside.

Judge Masuku ruled in favour of New Force Logistics and ordered the ACC pay the costs of the lawsuit on the scale of attorney and client.

Amoomo was correct in his arguments that the fact that ACC did not have a warrant to search the property of his client did not authorize it to act as they did. In fact, the judge said, he agreed with Amoomo that the search, seizure and attachment of the applicant’s goods were “warrantless” which makes the laws applicable to searches and seizure without a warrant applicable, which in turn caused the ACC to fall seriously foul of the provisions they sought to rely upon. This had the effect that they were merely paying lip service to their own provisions, he said.

According to Judge Masuku, the main question – which may be dispositive of the entire matter – was whether the ACC complied with the provisions of its own Act when it searched, seized and attached the applicant’s property. He asked whether the argument of Amoomo that the ACC violated its own law was viable in the circumstances.

He said the first question to be answered has to do with the lawfulness of the search, seizure and attachment of the applicant’s goods. “In this regard, what has to be ascertained, is whether the respondent’s (ACC) officers properly carried out their duties in terms of their Act.”

Judge Masuku said that the power to search, seize and attach property, without a warrant, including bodily searches of suspects, without a warrant are invasive and have far-reaching consequences.

“It is, in my considered opinion, very important and actually crucial and critical that the state of mind of the person, in the context of this case, who searches, seizes and attaches property without a warrant, is laid bare for the court to assess. I say so for the reason that the acts complained of in this case negate certain fundamental rights. In particular the officers of the respondent, both under the ACC Act and the Forestry Act, have to disclose to the court what considerations led them to conclude that there was indeed a reasonable suspicion of the commission of a named offence and the reasons why, in their peculiar circumstances, they did not find it necessary or feasible to obtain a warrant,” the judge stated.

He went on to say that the court must be taken into the officers’ confidence by stating what the prevailing facts were; what information was at their disposal; what caused the suspicion and why was it reasonable under the circumstances, together with the reasons why a warrant could not be obtained.

In the present case, the judge said, the respondent (ACC) fell short of the standards imposed on it by the legislature and must accordingly fall on its sword.
It is accordingly clear that the respondent’s officers were on a wild and unlawful crusade.

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