PG fails in bid to preserve US$886 722 The preservation order obtained by the prosecutor-general, Martha Imalwa, on 24 May 2017 to have more than US$800 000 held in the foreign currency account at Bank Windhoek by a Namibian and Spanish company - preserved as proceeds of crime – has been set aside.
The order was set aside by Deputy Judge President Hosea Angula after it was successfully challenged by the Atlantic Ocean Management Group, a registered Namibian company, and Fish Spain and Rio Algar, Spanish-registered companies.
The order had expired after the lapse of 120 days after the notice of the order was published in the Government Gazette. The prosecutor-general had not obtained a forfeiture order as required in terms of the Financial Intelligence Act and therefore the order lapsed.
After the Atlantic Ocean Management Group and Fish Spain demanded that Bank Windhoek release their funds, the prosecutor-general on 24 May 2017 filed an urgent application without notice to the respondents, pending the hearing to obtain a second preservation order in respect of the money which was granted by the then acting Judge Boas Usiku.
Atlantic Ocean Management Group and Fish Spain opposed the application and filed an application directed at Bank Windhoek, the Bank of Namibia and the prosecutor-general for an order to release the money.
The deputy judge president yesterday ruled that the prosecutor-general had inappropriately and incorrectly exercised her statutory discretion, which negatively affected the two companies' right to a fair trial guaranteed by the constitution.
“The prosecutor-general committed a number of material non-disclosures, both in respect of the first and second applications for preservation orders which compelled the court to set aside the second preservation order,” Angula ruled.
He emphasised the intention in limiting the validity of preservation order to 120 days was to balance the respondents right to property and legitimate objects of Prevention of Organised Crime Act.
“The prosecutor-general deliberately allowed a preservation order to lapse without approaching the court to have the order discharged or set aside. They should not be allowed to obtain the second preservation order because that would make the statutory period of 120 days meaningless and unduly oppressive to the two companies,” Angula stressed.
Imalwa had on 4 January 2017 filed an urgent ex parte application - without notice to the respondent - pending the hearing which was set down for 5 January 2017, in which she sought a preservation of US$886 722.20 in the accounts of Atlantic held in Bank Windhoek.
Imalwa had argued that the money was proceeds from criminal activities, namely contraventions of provisions of the Financial Intelligence Act. Any money in excess of N$100 000 must be declared to an officer of Customs and Excise at the port of entry or at the port of departure in Namibia.
Imalwa contended that Atlantic had contravened this provision when it received cash of US$59 400 and US$905 780 respectively, and that the director of customs and excise had no record of any declaration made either in Atlantic's name or its directors, and that the money was acquired from Angolan nationals.
The second applicant in the matter, Fish Spain, operates in Angolan waters.
Fish Spain, Rio Algar and an Angolan company, Sadino LDA, had concluded an agreement in terms of which the latter would charter vessels for operation in Angolan waters.
Sadino would pay the Spanish companies and would carry all the costs arising from the operation of the vessels. Subsequent to entering into agreement, the Angolan government introduced foreign exchange regulations which restricted the export of foreign currency making it difficult for Sadino to remit payment to the Spanish companies.
As a result the Spanish companies experienced a liquidity problem and at certain stage the Spanish embassy in Angola intervened to try to help the Spanish companies.
As a result, a certain Raimando Domingos, a client of Sadino, paid US$59 400 on 16 November 2016 to one of the company shareholders, Alberto Martinez, which he deposited into the account and Bank Windhoek transferred the money without any problem to Spain.
Martinez thereafter deposited US$905 780 into the same account on 17 November 2016. This amount was made up two payments Sadino received from clients. That is, US$499 512 received from Rosa Tangui Tandi and US$500 014 from a certain Mr Candido.
Martinez then instructed Bank Windhoek to transfer US$886 722.20 to the Fish Spain account in Spain, as the bank had done earlier, however the bank on 19 November 2016 informed him that the transfer had been blocked by the compliance department of Bank Windhoek.
FRED GOEIEMAN
The order was set aside by Deputy Judge President Hosea Angula after it was successfully challenged by the Atlantic Ocean Management Group, a registered Namibian company, and Fish Spain and Rio Algar, Spanish-registered companies.
The order had expired after the lapse of 120 days after the notice of the order was published in the Government Gazette. The prosecutor-general had not obtained a forfeiture order as required in terms of the Financial Intelligence Act and therefore the order lapsed.
After the Atlantic Ocean Management Group and Fish Spain demanded that Bank Windhoek release their funds, the prosecutor-general on 24 May 2017 filed an urgent application without notice to the respondents, pending the hearing to obtain a second preservation order in respect of the money which was granted by the then acting Judge Boas Usiku.
Atlantic Ocean Management Group and Fish Spain opposed the application and filed an application directed at Bank Windhoek, the Bank of Namibia and the prosecutor-general for an order to release the money.
The deputy judge president yesterday ruled that the prosecutor-general had inappropriately and incorrectly exercised her statutory discretion, which negatively affected the two companies' right to a fair trial guaranteed by the constitution.
“The prosecutor-general committed a number of material non-disclosures, both in respect of the first and second applications for preservation orders which compelled the court to set aside the second preservation order,” Angula ruled.
He emphasised the intention in limiting the validity of preservation order to 120 days was to balance the respondents right to property and legitimate objects of Prevention of Organised Crime Act.
“The prosecutor-general deliberately allowed a preservation order to lapse without approaching the court to have the order discharged or set aside. They should not be allowed to obtain the second preservation order because that would make the statutory period of 120 days meaningless and unduly oppressive to the two companies,” Angula stressed.
Imalwa had on 4 January 2017 filed an urgent ex parte application - without notice to the respondent - pending the hearing which was set down for 5 January 2017, in which she sought a preservation of US$886 722.20 in the accounts of Atlantic held in Bank Windhoek.
Imalwa had argued that the money was proceeds from criminal activities, namely contraventions of provisions of the Financial Intelligence Act. Any money in excess of N$100 000 must be declared to an officer of Customs and Excise at the port of entry or at the port of departure in Namibia.
Imalwa contended that Atlantic had contravened this provision when it received cash of US$59 400 and US$905 780 respectively, and that the director of customs and excise had no record of any declaration made either in Atlantic's name or its directors, and that the money was acquired from Angolan nationals.
The second applicant in the matter, Fish Spain, operates in Angolan waters.
Fish Spain, Rio Algar and an Angolan company, Sadino LDA, had concluded an agreement in terms of which the latter would charter vessels for operation in Angolan waters.
Sadino would pay the Spanish companies and would carry all the costs arising from the operation of the vessels. Subsequent to entering into agreement, the Angolan government introduced foreign exchange regulations which restricted the export of foreign currency making it difficult for Sadino to remit payment to the Spanish companies.
As a result the Spanish companies experienced a liquidity problem and at certain stage the Spanish embassy in Angola intervened to try to help the Spanish companies.
As a result, a certain Raimando Domingos, a client of Sadino, paid US$59 400 on 16 November 2016 to one of the company shareholders, Alberto Martinez, which he deposited into the account and Bank Windhoek transferred the money without any problem to Spain.
Martinez thereafter deposited US$905 780 into the same account on 17 November 2016. This amount was made up two payments Sadino received from clients. That is, US$499 512 received from Rosa Tangui Tandi and US$500 014 from a certain Mr Candido.
Martinez then instructed Bank Windhoek to transfer US$886 722.20 to the Fish Spain account in Spain, as the bank had done earlier, however the bank on 19 November 2016 informed him that the transfer had been blocked by the compliance department of Bank Windhoek.
FRED GOEIEMAN