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New Force Logistics asked the court last week to direct the ACC to immediately release its two Scania trucks, four containers and permits, which were seized on 2 January.
The company's lawyer, Kadhila Amoomo, argued that the ACC - strictly on points of law - had failed to explain the search and seizure of his client's property, without a warrant.
“The issue is purely procedural. The respondents used invasive powers and the court must therefore intervene to protect my clients,” Amoomo said.
New Force Logistics' managing director Jason Mathews said in his founding affidavit that his company was the lawful possessor and owner of the two trucks and four containers, containing 37 timber logs, as well as the permits for the consignment dated 2 January 2018.
“This was done without a court order or judicial warrant, and with absolutely no regard for property or decency, by an agent of the ACC known only to us as Kangameni,” Mathews said.
The trucks were being driven on the Swakopmund/Walvis Bay road when they were stopped.
The drivers were told to disembark, so that the ACC agents could search the trucks.
After searches were conducted, the agents demanded to see the documentation authorising the transportation of the timber.
The drivers were later informed that the trucks, the timber and the documentation were being seized.
“The basis of the seizure was not disclosed to the drivers. In any event, the truck or containers or documentation have not been used in the commission of any crime, and there is therefore no reason to seize them,” Kadhila argued.
In his affidavit, Mathews maintained that his right and freedom to engage in the transport and logistics trade was being sharply undermined.
“At the moment, these are the only trucks at our disposal and without them we are not able to participate in the transport and logistics industry,” he said.
Judge Thomas Masuku said the court was worried about the state of mind of the person who conducted the invasive search and seizure operation, without a warrant, and the ACC's head of investigations, Nelius Becker, was expected to address the court on the matter.
ACC attorney Mathias Kashindi said the commission has made substantive submissions and is leaving it to the court to exercise its discretion.
“When you embark upon an investigation, you cannot disclose information prematurely,” he said, while arguing that the application should be dismissed.
Kashindi said the ACC was investigating serious allegations of corruption and that its conduct during the probe has been lawful.
The judge, however, emphasised there is an allegation that there was no warrant and no explanation had been given for why the trucks had been searched. The matter was postponed to 22 February.
Kashindi replied that there was no search and that the seizure was done in accordance with Section 21 of the Anti-Corruption Act.
“The absence of a search warrant and the unlawfulness of the actions of our client are unsubstantiated allegations,” he argued.
Kashindi said further that the trucks were travelling on the property of the Roads Authority, which had alerted the ACC, which was then permitted to seize the vehicles. He again reiterated his claim that no searches were carried out.
Masuku postponed the matter to 22 February for judgement.
FRED GOEIEMAN