Windhoek-Namibia’s Chief Justice Peter Shivute has urged legal representatives of litigants in Namibia’s courts to refrain from unsupported allegations of abuse of power or engaging in distressing activities directed at public functionaries in exercising their public powers.
He made these remarks in a judgment in which he confirmed a decision by High Court Judge Shafimana Uitele to declare more than N$2.3 million held in four bank accounts in the names of close corporations as forfeited to the state in terms of the Prevention of Organised Crime Act last week.
Her cited as an example the attack on the prosecutor-general, whose conduct was labelled as “malicious prosecution, dishonorable, conspiracy, fraud, nonsense and foolish”. Clearly, the Chief Justice was not amused. He said it seems that the legal representatives of the appellants raised a personal attack on the PG.
“Conducting the defense of a client in such a highly antagonistic and personal fashion is patently contrary to the high standards of practice to which all counsels must be committed,” the Chief Justice said and added that if such conduct persists it might call for personal cost orders against legal practitioners.
Chief Justice Shivute also ordered the appellants, New Africa Dimensions CC and its two members, Gerhard Shilongo and Eliaser Shikage to pay the prosecutor-general’s legal costs in the case on a higher−than−usual scale as between a legal practitioner and own client as a result of the vexatious allegations.
Judge Uitele made the ruling on April 20, 2016 in which he found that N$1,45 million held in a bank account of New Africa Dimensions CC, N$498 527 in an account of a close corporation of Shikage, known as Kage Trading CC, N$343 265 in an account of Taleni Multi Media Consulting CC, of which Shilongo is a member, and N$62 557 in an account of another close corporation of Shilongo, C Three Trading CC, as well as a Golf GTI bought for Shilongo with money coming from the account of New Africa Dimensions CC, were the proceeds of unlawful activities, and should be forfeited to the state.
He also declared a Volkswagen Golf GTI that was bought for a member of three of the close corporations at a price of N$320 000 forfeited to the state in terms of the Prevention of Organised Crime Act.
New Africa Dimensions, Shilongo and Shikage appealed the orders by the High Court and asked the Supreme Court to set aside the findings and orders of the High Court.
They argued that Judge Uitele was mistaken when he found that the property concerned had been shown to be the proceeds of unlawful activities. The judge found that Shilongo and Shikage, who worked in the ministry of agriculture, defrauded their employer when they got it to buy 110 diesel engines from New Africa Dimensions CC in February 2012.
At the time Judge Uitele recommended that the ministry should lay criminal charges against the officials involved.
New Africa Dimensions also argued that the approach to be adopted in resolving disputes of fact in this matter is that applied in action proceedings.
They disputed the prosecutor-general’s contention that the property in question is the proceeds of unlawful activities as the items supplied were not covered in the tender terms applicable. The application for the seizure order was made after an ACC investigation revealed that New Africa Dimensions had supplied water engines without authorisation and was paid for it.
They argued that the items contracted to them was granted exemption from the now repealed Tender Board Act and that the decisions of the officials of the ministry soliciting for quotations and awarding a tender were administrative in nature and, as they had not been set aside by a competent court, remains valid.
The Supreme Court found that the grounds raised by the appellants are without merit and their appeal is dismissed with costs – to include one instructing and two instructed counsels.
Advocate R. Bhana SC, assisted by Advocates Thabang Phatela, SJ Scott, and Lucious Murorua, instructed by Murorua Kurtz Kasper Inc, appeared for New Africa Dimensions, Shilongo and Shikage while Advocate A. Cockrell SC, assisted by Advocate Marius Boonzaaier and instructed by the Attoreny-General, appeared on behalf of the prosecutor-general.