August 26 boss wins N$2m forfeiture bid
An application by the prosecutor-general to have N$2 788 054.37 in a suspect's account forfeited to the state in terms of the provisions of Prevention of Organised Crime Act (POCA), was dismissed in the Windhoek High Court.
The PG was ordered to pay costs of the respondents in the matter, who were Moses Kamunguma and McKuma & Lenga Trading CC. Kamunguma is the managing director of August 26 Holdings, the commercial wing of the Namibia Defence Force, while McKuma & Lenga Trading CC is a Namibian registered close corporation with Democratic Republic of Congo army general Francois Olenga as a partner.
Judge Shafimana Ueitele last week Friday ruled that the entire evidence submitted by the PG was based on information she had obtained from persons whose evidence was not before the court.
“It therefore follows that there is no admissible evidence that Kamunguma or Olenga made any misrepresentation to First National Bank of Namibia (FNB) and thus committed fraud,” he emphasised, dismissing the application for the forfeiture of the property, with costs.
The judge stated that the prosecutor-general's reliance on evidence that the property was derived, received or retained, directly or indirectly through alleged unlawful activity was not supported by sworn statements in the motion proceedings.
He further said the link between the crime committed and the property must be reasonably direct and the employment of the property must be functional to the commission of the crime.
“By this it means the property must play a reasonably direct role in the commission of the offence,” Ueitele explained.
First National Bank, on 16 June 2014, received an instruction from a German bank on behalf of its Chinese client, instructing it to pay an amount equivalent to 92 518,60 euros into an account held in Kamunguma's name.
The Bank, upon receipt of the instructions, requested Kamunguma to complete a declaration form stating why he was receiving the funds.
Kamunguma completed the declaration form and indicated that the funds were from the China North Industries Corporation for a 'construction' project. On 18 June 2014, N$2 788 054.37 was deposited into Kamunguma's account held at the bank and the reference for that deposit was indicated as 'commission'. Between 18 June 2014 and 18 March 2014 an amount of N$2 730 000 was moved between Kamunguma's cheque account and his 32-day investment account. “The prosecutor-general, based on investigations and findings on 19 February 2016, from this court obtained a preservation of property order,” the judge said.
He added that pursuant to that order, the PG brought a forfeiture application for the preserved property to be forfeited to the state. The respondents opposed the forfeiture application but their attempt to raise a point for hearing of specific legal issues before the actual case was heard failed.
The point was that the PG did not serve the forfeiture application on the address given by the respondents and that the forfeiture application was not served by the deputy sheriff or a police officer as prescribed.
FRED GOEIEMAN
The PG was ordered to pay costs of the respondents in the matter, who were Moses Kamunguma and McKuma & Lenga Trading CC. Kamunguma is the managing director of August 26 Holdings, the commercial wing of the Namibia Defence Force, while McKuma & Lenga Trading CC is a Namibian registered close corporation with Democratic Republic of Congo army general Francois Olenga as a partner.
Judge Shafimana Ueitele last week Friday ruled that the entire evidence submitted by the PG was based on information she had obtained from persons whose evidence was not before the court.
“It therefore follows that there is no admissible evidence that Kamunguma or Olenga made any misrepresentation to First National Bank of Namibia (FNB) and thus committed fraud,” he emphasised, dismissing the application for the forfeiture of the property, with costs.
The judge stated that the prosecutor-general's reliance on evidence that the property was derived, received or retained, directly or indirectly through alleged unlawful activity was not supported by sworn statements in the motion proceedings.
He further said the link between the crime committed and the property must be reasonably direct and the employment of the property must be functional to the commission of the crime.
“By this it means the property must play a reasonably direct role in the commission of the offence,” Ueitele explained.
First National Bank, on 16 June 2014, received an instruction from a German bank on behalf of its Chinese client, instructing it to pay an amount equivalent to 92 518,60 euros into an account held in Kamunguma's name.
The Bank, upon receipt of the instructions, requested Kamunguma to complete a declaration form stating why he was receiving the funds.
Kamunguma completed the declaration form and indicated that the funds were from the China North Industries Corporation for a 'construction' project. On 18 June 2014, N$2 788 054.37 was deposited into Kamunguma's account held at the bank and the reference for that deposit was indicated as 'commission'. Between 18 June 2014 and 18 March 2014 an amount of N$2 730 000 was moved between Kamunguma's cheque account and his 32-day investment account. “The prosecutor-general, based on investigations and findings on 19 February 2016, from this court obtained a preservation of property order,” the judge said.
He added that pursuant to that order, the PG brought a forfeiture application for the preserved property to be forfeited to the state. The respondents opposed the forfeiture application but their attempt to raise a point for hearing of specific legal issues before the actual case was heard failed.
The point was that the PG did not serve the forfeiture application on the address given by the respondents and that the forfeiture application was not served by the deputy sheriff or a police officer as prescribed.
FRED GOEIEMAN
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