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REPORTABLE

CASE NO. A 25/2009

SUMMARY:

SAMCO IMPORT & EXPORT CC 1^ST APPLICANT

SHAMIL DIRK 2^ND APPLICANT

and

THE MAGISTRATE OF EENHANA 1^ST RESPONDENT

THE INSPECTOR-GENERAL: NAMBIAN POLICE 2^ND RESPONDENT

THE STATION COMMANDER: OHANGWENA 3^RD RESPONDENT

THE MINISTER OF SAFETY & SECURITY 4^TH RESPONDENT

THE PROSECUTOR-GENERAL 5^TH RESPONDENT

HOFF, J

2009/02/18

Application – seizure of article in terms of the provisions of sections of sections 20 and 21 of the Criminal Procedure Act 51 of 1977 as amended.

Description of article in search warrant overbroad and too general – warrants set aside for this reason alone.

In addition search warrants were addressed “to all policemen”. Section 21 (2) authorizes “a police official” to seize an article.

Section 21 to be read together with provisions section 29 which provide that search shall be conducted with strict regard to decency and order – this can only be achieved if a known and named police official is empowered to execute warrant.

A fundamental consideration demanding a strict interpretation of the provisions of section 21 is that those provisions may result in a serious encroachment on the rights of those who are subjected to them.

Search warrants addressed to “all police officials” and not to a specific officer or specific officers do not comply with the provisions of section 21 and are for that reason alone, invalid.

The word “seize” encompasses the act of taking possession of an article as well as the subsequent detention thereof.

Generally speaking, Courts will not sanction unlawful seizures – where such seizures have occurred orders would be issued for the return of the seized articles – does not mean that where possession of an article would constitute an offence person could be legally permitted to possess it – instead it means that the police have to start afresh in seizing article and acting in compliance with requirements of the law regulating seizures.

Award of costs wholly within discretion of Court.

One of grounds upon which a court may make a special order as to costs is where conduct of litigant is deplorable and highly contemptuous of the Court. Respondents in contempt of previous Court order.

In casu respondents manifested a stubborn and defiant attitude despite fact that they had been advised to comply with Court order – costs awarded on attorney-client scale.

CASE NO. A 25/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

SAMCO IMPORT & EXPORT CC 1^ST APPLICANT

SHAMIL DIRK 2^ND APPLICANT

and

THE MAGISTRATE OF EENHANA 1^ST RESPONDENT

THE INSPECTOR-GENERAL: NAMIBIAN POLICE 2^ND RESPONDENT

THE STATION COMMANDER: OHANGWENA 3^RD RESPONDENT

THE MINISTER OF SAFETY & SECURITY 4^TH RESPONDENT

THE PROSECUTOR-GENERAL 5^TH RESPONDENT

CORAM: HOFF, J

Heard on: 29.01.2009; 02 – 03.02.2009;

Delivered on: 2009.02.04

Reasons provided on: 2009.02.18

JUDGMENT:

HOFF, J: [1] This Court heard an urgent application at 15h00 on 2 February 2009. The matter was postponed, on application by counsel acting on behalf of the respondents, to 3 February 2009 and this Court gave its ruling at 10h00 on 4 February 2009, indicating then that reasons would be provided to any party requesting such reasons. This Court now has received such a written request from Mr Khupe who appeared on behalf of the respondents.

The order of this Court pronounced on 4 February 2009 reads as follows:

“2. That a Rule Nisi is issued, calling upon all the respondents to show cause, if any at 10h00 on 13 March 2009 why the following order should not be granted and confirmed:

2.1 That the search warrant issued by first respondents on 30 January 2009 is hereby declared invalid, unlawful and set aside and that all or any steps that may have been taken on the basis of the said search warrant is set aside;

2. That the second, third and fourth respondents are ordered to restore first applicant’s safe with immediate effect, which it removed pursuant to the aforesaid warrant from first applicant’s business premises;

2.3 That the first, second and third respondents are interdicted and restrained from taking any further steps against the applicants in relation to this matter and/or from interfering with the business or business premises and/or the peaceful occupation by first applicant of its business and/or second applicant of his flat.

2.4 That the 4^th Respondent, the Minster of Safety and Security is ordered to pay the costs of this application on attorney client scale. No costs order is made in respect of the other respondents.

3. That the order in terms of paragraphs 2.1 – 2.3 shall serve as an interim interdict with immediate effect, pending the finalisation of both urgent applications.”

[2] I shall refer to this order as the second order.

This Court gave a previous order (which will be referred to as the first order) approximately at 15h30 on 29 January 2009.

This first order reads as follows:

“2. That a Rule Nisi do hereby issue calling upon all the Respondents to show cause, if any, on Friday the 13^th of March 2009, as to why the following orders should not be granted and confirmed:

2.1 Declaring the warrant of search by the first respondent on 28^th of January 2009 to be invalid and unlawful and setting aside it and any step that may have been taken on the basis of the said warrant of search.

2.2 Ordering the second and third respondent to restore the first applicant’s keys of its business premises at Oshikango to the second applicant.

2.3 Declaring the arrest and detention of the second applicant as unlawful and invalid and setting aside same with any steps and processes that may have been taken and issued, following the second applicant’s arrest and detention.

2.4 Ordering the immediate release of the second respondent from custody.

2.5 Pending the finalization of this application no steps shall be taken to arrest the second applicant in relation to this matter and/or interfere with the first applicant’s business premises and/or its peaceful occupation.

2.6 That copies of this application an order be served by the Deputy Sheriff of Windhoek within the next 2 days to the respondents and that the copy of the second applicant’s found affidavit be used at this hearing and its original be filed and served to the respondents before the return date.

2.7 Costs of suit to be paid by any of the respondents that opposes this application.

3. That orders under paragraph 2.1 to 2.7 serve as interim relief.”

[3] When the first application was heard Mr Marcus who appeared on behalf of the 2^nd and 3^rd respondents informed the Court that he held no instructions whether to oppose the application or not since he received the application documents on short notice. He however did not apply for a postponement of the application.

[4] The second applicant in his founding affidavit narrated the background to the launching of this second application as follows:

He is a businessman with a number of business interests in the northern part of Namibia the main two being “Dirk Fruit” at Oshakati and the first applicant’s business at Oshikango. The first applicant’s major customers from Angola represent about 95% of its customers. “Dirk Fruit” at Oshakati generates approximate N$500.000.00 per month. First applicant’s income from sales per month is about N$8 to N$ 9 million and expenditure amounts to about N$7 to N$8 million per month.

[5] It is common cause that second applicant was approached at first applicant’s business on 28 January 2009 at around 13h00 by members of the Namibian Police Force who were accompanied by an Angolan national (later known as one Domingos Jamba, hereinafter referred to as Jamba). The police officers informed second applicant that they had arrested Jamba with a large amount of Namibian currency in Jamba’s possession and that Jamba allegedly came into possession of such Namibian currency after having exchanged an amount of U$11 000.00 with second applicant.

The police officer demanded to see the US dollars which were allegedly kept in a safe on the business premises. Second respondent at some stage contacted his legal representative in Windhoek. Thereafter he asked one the police officers, warrant officer Ambata, whether they had a search warrant. The police officers did not have a search warrant. Second applicant stated that he was then virtually detained without being arrested. In the evening around 18h00 warrant officer Ambata accompanied by Chief Inspector Agas returned with a search warrant.

Second applicant faxed this search warrant to his legal representative and was subsequently informed by the legal representative that the search warrant was invalid inter alia because it did not specify which offence was reasonably suspected to have been committed by second applicant and that the search warrant was general and vague.

His legal representative telephonically spoke to Chief Inspector Agas and an agreement was reached that any attempt to further search and forcefully seize the money in the safe (which includes monies obtained from clients) would be abandoned pending an application to be brought to the High Court on 29 January 2009. Second applicant stated that subsequently, and to his surprise, despite his denial of the allegations made by Jamba, he was arrested without a warrant of arrest on charges that he had allegedly exchanged foreign currency in contravention of some unspecified regulations.

This Court was thereafter approached who then gave the first order.

[6] Warrant Officer Michael Ambata deposed to an affidavit on behalf of second and third respondents. He was the police officer who initiated criminal proceedings against the applicants. I shall now deal with that part of his opposing affidavit relating to the relief prayed for by the applicant in their second application. Warrant Officer Ambata stated in this regard that he was called by Mr Namandje (legal representative of the applicants) late in the evening of 29 January 2009 who indicated to him that the High Court of Namibia had ordered the release of the second applicant from custody and that the first search warrant had been set aside.

He continued and stated as follows in paragraphs 26, 27, 28 and 29 of his opposing affidavit:

26.

“Still on the 29^th of January 2009 the police had gathered fresh information on other exchanged control violations by the second applicant. A sworn statement from another Angolan national Marcos Zeferino Ndala was obtained wherein allegations of illegal foreign currency exchange deals were leveled at the second applicant. The statement I obtained is attached hereto as annexure “MA3”.

27.

The fresh criminal allegations against the second applicant led to the police’s application for and obtaining of the second search warrant on the 30^th January 2009. The second search warrant was granted by the first respondent. The application for this second search warrant was the same as that of the first in that it constituted of the formal search warrant supported by sworn affidavit by myself. The second search warrant is attached hereto as annexure “MA4”.

28.

The more details on the second search warrant were put in view of the applicant’s legal practitioners complaints that the first search warrant had contained inadequate information. I must emphasize that the second search warrant was obtained not to circumvent this Honourable Court’s order granted on the 29^th of January 2009 but the cause (because of ?) the new foreign currency violations against the second applicant.

29.

As far as the police concerned we did not see anything irregular or unlawful in the second search warrant issued and in any event it was up to the Magistrate’s judicial discretion to issue it or not. Our purpose of obtaining the search warrant was still to access the safe which was again alleged to be housing all the foreign currency subject of our criminal investigations.”

[7] He further stated that a case (presumably in violation of exchange control regulations) has already been opened against the second respondent and that the granting of the prayers the applicants sought in their second notice of motion would lead to the possible obstruction of the course of justice.

[8] In a sworn statement in support of an application to the magistrate to issue the second search warrant, officer Ambata states as follows (at par. 11):

“After this search warrant was turned down, I again obtained another information under oath from Mr Marcos Zeferino Ndala an Angolan national, also claimed that he use (sic) to come and exchange his American dollars for Namibian dollars without buying anything at Mr Shamil Dirk’s business at Oshikango in (sic) numerous occasions …”

[9] This statement was dated 30 January 2009 at 07h00.

It appears inter alia from an affidavit by Marcos Zeferino Ndala that the alleged exchanges of USA dollars for Namibia dollars occurred sometime during December 2008 and sometime during January 2009. This statement was taken down by warrant officer Ambata at Oshikango on 29 January 2009 at 11h40.

[10] If one has regard to the fact that according to warrant officer Ambata he was informed “late in the evening of the 29^th of January 2009” that the first search warrant had been set aside and that he obtained the information on oath from Mr Ndala after the first search warrant had been set aside, then Mr Ndala could not have deposed to a warrant at 11h40 on 29 January 2009 since at that time this Court had not even heard the application in which relief was sought for the setting aside of the first search warrant !

Such an order was given by this Court only about 15h30 on 29 January 2009. Thus this “fresh information” appears not to be so fresh since the police (having regard to the time and the date) had such information before this Court heard the first application and such information must have been information in addition to the sworn statement by Jamba, the basis on which the magistrate was approached to issue the first search warrant. Therefore the impression created that such information was obtained subsequent to the setting aside of the first search warrant must on the face of the affidavit itself, be false.

It follows that the information contained in the affidavit by Ndala could not have been the basis on which officer Ambata could have applied to the magistrate to issue the second search warrant. If this line of reasoning is taken to its logical conclusion then warrant officer Ambata had no reasonable grounds for believing that something (foreign currency) would afford evidence as to the commission of an offence at the time he applied for the issuing of the second search warrant.

This conclusion is in conflict with the averment by warrant officer Ambata that the second search warrant was obtained not to circumvent this Court’s first order, but that it was because of new foreign currency violations against second applicant.

This conclusion in my view also questions the bona fides of warrant officer Ambata in approaching the magistrate for the issuing of the second search warrant.

[11] The State may in terms of section 20 of the Criminal Procedure Act 51 of 1977 seize anything (an article):

“(a) which is concerned in or is on reasonable grounds believed to be concerned with the commission or suspected commission of an offence, whether within the Republic or elsewhere;

(b) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere;

(c) which is or intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.”

[12] The State may in terms of section 21 (but subject to the provisions inter alia of section 22) effect the seizure of the articles referred to in section 20 only by virtue of a search warrant.

Section 22 deals with those instances where an article may be seized without a search warrant and is not applicable in this application.

[13] Section 21 (1)(a) of the Act provides that a magistrate or justice, shall issue a search warrant if it appears from information on oath that there are reasonable grounds for believing that such article is in the possession or under the control of or upon any person or upon or at any premises within the area of jurisdiction of such magistrate or justice.

[14] Section 21 (2) provides that a search warrant shall require a police official to seize the article in question and shall authorize such police official to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person found on or at such premises.

[15] The first search warrant was addressed “TO ALL POLICEMEN” to search the premises of first applicant for something in respect of which an offence is suspected on reasonable grounds to have been committed, to wit “American dollars cash”.

This warrant did not mention any statutory or common law offence that had reasonably suspected to have been committed. Warrant Officer Ambata states in his opposing affidavit that more details were put in the second search warrant in view of complaints that the first search warrant contained inadequate information.

[16] In the second search warrant the statutory provisions which had allegedly been contravened (Regulation 2 of the Exchange Control Regulations of 1961) was inserted in an attempt rectify previous criticisms but where the article in the first search warrant was described as “American dollars cash”, in the second search warrant the police officers were authorised to search for and seize “any foreign currency in respect of contravening Regulation 2 of the Exchange Control Regulation of 1961 as amended read with Act 9 of 1933. (Buying, selling, exchanging foreign currency without permission of the treasury)”.

[17] Both search warrants were addressed “TO ALL POLICE OFFICERS”. In Divisional Commissioner of SA Police, Witwatersrand Area and Others v SA Associated Newspapers Ltd and Another 1966 (2) SA 503 (A) at 512 D reference was made to one of the requirements of a valid search warrant where the Court confirmed the position that Courts will refuse to recognize as valid a warrant the terms of which are too general.

[18] In his statement under oath in support of his application for the second search warrant, Warrant Officer Ambata identified the foreign currency as “US dollars”. The search warrant however empowers the police officers to search for and seize any foreign currency. It is clear from the statement of warrant officer Ambata that he had a reasonable suspicion that “US dollars” had been exchanged in contravention of the relevant exchange control regulations and no mention was made of foreign currency other than “US dollars”. The second search warrant in this regard is overbroad and authorises the seizure for example of Russian roubles or Japanese yen in respect of which no suspicion was ever harboured that exchange control regulations had been violated in respect of those foreign currencies or any other foreign currency other than “US dollars”. This second warrant had been drawn too widely in respect of the description of the article “in respect of which there were reasonable grounds for believing that it was used for the purpose of or in connection with the commission of an offence”.

In Divisional Commissioner of SA Police at 512 (supra) the Appellate Court referred with approval to remarks by the learned Judge a quo who commented on the terms of a search warrant as follows:

“The ambit is so wide that the imagination boggles at the suggestion that there existed reasonable grounds for believing that each and every document in this large category ‘would’ not ‘might’, afford evidence of a contravention referred to by the third respondent in his affidavit.”

[19] The search warrant in that case inter alia allowed for the seizure of “all” documents “concerning reports in connection with conditions in goals”.

Beyers ACJ in (Divisional Commissioner of SA Police (supra) continues as follows on 512 H:

“The Court a quo, in my opinion, correctly held that para. 2 (g) should not have figured in the warrant in the form it did; that it was couched in such wide terms as to justify the inference that the third appellant had not properly applied his mind thereto as required by sec. 42 of the Act. As stated above, in circumstances such as these the Court will interfere in the result.”

[20] Section 42 referred to in this quotation was the equivalent of our present section 21.

[21] The magistrate in casu was the sole arbiter to determine the justification of the search warrant issued under her hand and had the duty to apply her mind as required by section 21 before issuing the relevant search warrants. In my judgment she did not do so, and this Court was thus justified to interfere and to cancel and set aside both search warrants.

[22] Mr Namandje who appeared on behalf of the applicant in the first application referred to the invalidity of the search warrant because it was too vague and general. He emphasized two points in this regard. Firstly that the warrant did not identify the offence reasonably expected to have been committed and secondly the search warrant authorized “whoever is a police officer” to search the premises of first applicant.

[23] It was held in De Wet and Other v Willers NO and another 1953 (4) SA 124 (TPD) at 127 B – C that to “enter premises, to search those premises and to remove goods therefrom is an important invasion of the rights of the individual. The law empowers police officers to infringe the rights of citizens in that way provided that they have a legal warrant to do so. They must act within the terms of that warrant. When a dispute arises as to what power is conferred by the warrant the warrant must be construed with reasonable strictness, and ordinary there is no reason why it should be read otherwise than in the terms in which it is expressed”.

[24] Courts have a long history of scrutinizing search warrants with rigor and exactitude because the warrant encroaches upon personal liberty.

(See Powell NO and Others v Van der Merwe NO and Others 2005 (1) SACR 317 ).

Therefore a magistrate when authorising a search warrant should satisfy herself or himself with the provisions of the relevant statutory provisions since failure to do so may give rise to an unnecessary wide formulation of a warrant bound to be set aside for that reason only.

The information the police received from Jamba was that he gave second applicant an amount of N$11 700.00. The warrant of search was drafted in wide terms authorizing the police to seize (by implication) all the American dollars found on the premises. It was for this reason (i.e. the wide and general formulation) that the search warrant stood to be set aside. There was a second reason why the warrant needed to be set aside namely the fact that it was addressed “TO ALL POLICEMEN”. The same applies to the second warrant even though this point was not specifically argued during the second application.

[25] It is trite law that a search warrant must order an officer identified in such warrant to confiscate the article in question.

It appears from what was held by Van Oosten, J in Smit & Maritz Attorneys and Another v Lourens NO and Others 2002 (1) SACR 152 WLD at 157 that the reasons why a search warrant addressed to “all police officers” is null and void are twofold. Firstly, section 21 should be read together with the provisions of section 29 of the Act which provide that a search of any person or premises shall be conducted with strict regard to decency and order and that decency and order can only be achieved if a “known and named” police official is or officials are empowered to execute it. Secondly there is a more fundamental consideration demanding a strict interpretation of the provisions of inter alia section 21. This is that those provisions may result in a serious encroachment on the rights of those who are subjected to them.

There appears on authority of Naidoo and Another v Minister of Law and Order and Another 1990 (2) SA 158 (W) at 161 C – D, a third reason why a search warrant must be addressed to an identified police officer and that relates to the intention of the Legislature. In Naidoo (supra) the provisions of section 25 were considered. The provisions of both sections 21 and 25 inter alia empowers a magistrate to issue a warrant authorizing “a police official” to enter the premises or to seize an article.

In Naidoo (supra) Roux J expressed himself as follows at 161 C – D:

“The warrants are addressed “To all police officers”. Section 25 provides for a warrant authorizing “a police official” to enter the premises. The section continues to vest such police official with important discretionary powers. This indicates that the Legislature intended that an identified police officer should be named and should act throughout. In the form they were granted any policeman with any rank and with no knowledge of the facts could come upon the premises and search. Such a situation could, in my judgment, result in a disorderly search which is exactly what s. 29 of the Acts seeks to avoid.”

[26] Van Oosten J in Smit & Maritz Attorneys (supra) said at 157 i– j that it “is significant to note that the section prior to its amendment by Act 33 of 1975, authorized the issuing of a search warrant ‘directing any policeman named therein or all policemen’ to search and seize”.

(Emphasis provided).

Van Oosten J further stated that a “restrictive interpretation of the word ‘police official’ as used in this section as referring to a known and named official, would, in my view, further provide some safeguard for the protection of the rights of those whose privacy might be in danger of being assailed through searches and seizes of officials of the State”.

The section referred to supra is section 21.

[27] Search warrants which are addressed to “all police officials” and not to a specific officer or specific officers do not comply with the provisions of section 21 and are for that reason alone, invalid.

(See Smit v Maritz Attorneys at 158 (a) ).

[28] Cameron JA, in Powell NO and Others (supra) discussed various cases relating to search warrants and set out the following general principles which in my view should be adopted by this jurisdiction:

“(a) Because of the great danger of misuse in the exercise of authority under search warrants, the courts examine their validity with a jealous regard for the liberty of the subject and his or her rights to privacy and property.

(b) This applies to both the authority under which a warrant is issued, and the ambit of its terms.

(c) The terms of a search warrant must be construed with reasonable strictness. Ordinarily there is no reason why it should be read otherwise than in the terms in which it is expressed.

(d) A warrant must convey intelligibly to both searcher and searched the ambit of the search it authorizes.

(e) If a warrant is too general, or its terms goes beyond those the authorizing statute permits, the Courts will refuse to recognize it as valid, and will set it aside.

(f) It is no cure for an overbroad warrant to say that the subject of the search knew or ought to have known what was being looked for: The warrant must itself specify its object, and must do so intelligibly and narrowly within the bounds of the empowering statute.”

[29] These are laudable principles which must be considered by magistrates or justices prior to issuing search warrants.

[30] Ms Vivier who appeared an behalf of the applicants in the second application (with reference to the confirmatory affidavit by Mr Namandje) submitted that the second search warrant was issued while members of the Namibian Police Force were and remained in contempt of the first court order and that this was done in order to allow them time to obtain the second search warrant.

[31] Mr Namandje, instructing legal practitioner in the second application, described his involvement in both applications as follows: that Mr Marcus of the Government Attorneys was in Court on 29 January 2009 when the court, handed down its first order against the respondents; that after faxing the court order he spoke to warrant officer Ambata, the arresting officer, advising him of the specific court orders and informing him that a copy of the court order was sent to his station by facsimile; that he spoke to Chief Inspector Agas who provided him with a fax number; that he faxed a copy of the court order to him and that Chief Inspector Agas confirmed receipt thereof; that he, on advise from Chief Inspector Agas, faxed a copy of the court order to Commissioner Shikongo of the Namibian Police Force; that all this was done on 29 January 2009 between 16h00 and 17h00; that when he later telephonically spoke to Chief Inspector Agas and enquired whether second applicant had been released he was advised that the Namibian Police would not comply with the court order; that after 18h00 he spoke to warrant officer Ambata for a second time and was informed in no uncertain terms that the Inspector-General of the Namibian Police had given orders that the court order should not be complied with; thereafter he spoke to Mr Marcus who undertook to immediately advise the relevant officers of the Namibian Police to comply with the court order; when he again at about 20h00 spoke to Chief Inspector Agas, he was informed that although he had been advised by Mr Marcus to comply with the Court order he was still considering whether to comply with the court order or not; he then sought the assistance of the Prosecutor-General whom later informed him telephonically that she had advised the Namibian Police and that they had agreed to release second applicant; that at around 21h00 he spoke to Chief Inspector Agas who confirmed that he had been advised by the Prosecutor-General to release second applicant but that he would despite such advice not do so; he then sought the assistance of Dr Albert Kawana, the Acting Attorney-General who undertook so advise the respondents to comply with the court order; that it took him another 40 to 50 minutes speaking to the Inspector-General of the Namibian Police before he ultimately agreed to order the release of the second applicant. Mr Namandje stated that he also spoke to the Minister of Safety and Security who stated that he expected his members to respect the order, but could not do anything if the members on the ground were not respecting the order.

[32] On 30 January 2009 a letter was addressed to the Inspector-General of the Namibian Police which in part reads as follows:

“As you well know the second applicant was only released after 22 hours after intense negotiations for his release, notwithstanding a Court order that he should have been immediately released. His detention from around 17h00 to 22h00 last night was not only unlawful but it was also malicious on the part of the Namibian Police and we have received instructions to advise our client on a possible damage claim against the Minister of Safety & Security.

Although our client was released, we have been informed this morning that our clients business continue being virtually closed on account of the fact that Police Officers in their numbers are posted at our clients business and are hindering running of our client’s business and in contempt of court refused to hand over our client’s keys and the invoice book other things unlawfully seized. Our client cannot, in such circumstances make stock order and run the business.

We wish to advise you that the warrant of search concerned have been, on the interim basis and with immediate effect held as invalid and was set aside by the High Court.

We have received instructions as follows:

1. That our client be permitted to commence his business unhindered in any way.

2. That your members who are unlawfully occupying our client’s premises leave with immediate effect.

3. That you restore our client’s business/office keys.

4. Your members on our client’s property are scarring off our client’s customers and should leave.

Should this not be done by 12h00 this afternoon, an urgent application will be brought in the High Court on Monday, 2 February 2009 to hold the Minister of Safety & Security and the Inspector-General of the Namibian Police in contempt of court as well as the Station Commander of Ohangwena Police Station and further to apply for such other orders as may protect our client’s rights and interests.

This letter will be placed before the Court in future, both in the application contemplated on Monday and in the possible damage claim to be brought against the Minister of Safety & Security if the unlawful conduct of the members of the Namibian Police persist beyond 12h00 this afternoon.”

[33] First respondent filed an answering affidavit and warrant officer Ambata filed an answering affidavit on behalf of the second, third, and fourth respondents.

Warrant Officer Ambata sets out in his answering affidavit the circumstances which had led to the arrest of second applicant as well as the issuing of the first search warrant.

[34] He stated that after the second appellant had been arrested a police officer was left at the premises of first applicant in order to ensure that the safe was not interfered with. He denied that there were police officers all over applicants’ business premises as claimed by second applicant in his founding affidavit and he further denied that applicants’ business had been interrupted by a heavy police presence. He related that he was informed by Mr Namandje on 29 January 2009 late in the evening that this Court had ordered the release of second applicant and that the first search warrant had been set aside. He thereafter narrated the circumstances which led to obtaining the second search warrant.

[35] Warrant Officer Ambata did not in his answering affidavit deny the averment by Mr Namandje that he had on the evening of 29 January 2009 informed Mr Namandje in no uncertain terms that the Inspector-General of the Namibian Police had given orders that the court order (given on the same day) should not be complied with.

Instead warrant officer Ambata tried to justify the non-compliance of the court order and took the opportunity to advise this Court as to the solution in this stalemate when he expressed himself as follows in paragraph 32 of his answering affidavit.

“All the police are seeking to avoid the aforesaid possible obstruction of justice is for access to the safe be granted in the presence of the second applicant and his legal practitioners, for the content of the safe to be noted by all concerned and any possible criminal conduct or lack of it assessed. This is the only fairest thing to all parties in the circumstances. Such approach will also take care of the applicants’ alleged interference with their normal business operations by the police investigations.”

[36] Furthermore in spite of allegations of contempt of Court by Chief Inspector Agas no answering affidavit had been filed by Chief Inspector Agas refuting those serious allegations.

[37] Mr Khupe who appeared on behalf of the respondents in the second application urged this Court to have regard to the time constraints the respondents faced in their preparation to file answering affidavits. This was indeed a factor that this court had considered. However this Court was informed by Mr Khupe that Chief Inspector Agas had been in Windhoek since at the latest 2 February 2009 when respondent applied for a postponement until 3 February 2009 and I am of the view that Mr Khupe had adequate time available to have obtained an affidavit from Chief Inspector Agas.

[38] In any event the averments that the conduct of police officers (warrant officer Ambata and Chief Inspector Agas) amounted to contempt of court are uncontraverted.

[39] The police officers (especially Chief Inspector Agas) stubbornly persisted in this conduct in spite of advice to comply with the Court order.

[40] It is a fact that this Court had given the respondents the opportunity to file answering affidavits and had given counsel representing the respondents the opportunity to argue their case in Court. A submission made by Ms Vivier (at least in her heads of argument) was that respondents should not be heard at all until they have purged their contempt. There is in my view, much merit in this submission, and had this Court been required to consider this issue, raised as a point in limine, this court in all probability would have denied respondents an audience until such time as they have purged their contempt.

[41] It is trite law that all court orders must be complied with irrespective of whether a litigant agrees or disagrees with such order and court orders remain valid and enforceable until they are set aside on appeal by a competent court of law.

[42] This Court applied this fundamental principle in Hamutenya v Hamutenya 2005 NR 76 (HC) where the applicant applied for an amendment of a previous court order, whilst being in contempt of such an order. This court held that though contempt of a court order was not an absolute bar to further proceedings, that that case did not fall under the exceptions to the rule. The Court accordingly struck the matter from the roll and gave leave to the applicant to renew the application once he had complied with the existing court order.

Maritz J (as he then was) said this at 78 B – G:

“In pressing the point in limine on behalf of the respondent, Mr Boesak reminded the Court of the dire consequences to the administration of justice and the maintenance of order in society if orders of Court are disregarded with impunity. Recognising the considerations of public policy which underline the need to respect and comply with orders of that kind, the Court said in Sikunda v Government of the Republic of Namibia and Another 2001 (2) NR 86 (HC) at 92 D – E:

‘Judgments, orders, are but what the Courts are all about. The effectiveness of a Court lies in execution of its judgments and orders. You frustrate or disobey a Court order you strike at one of the foundations which established and founded the State of Namibia. The collapse of a rule of law in any country is the birth to anarchy. A rule of law is a cornerstone of the existence of any democratic government and should be proudly guarded.’

Authority for this approach is also to be found in a case both parties drew the Court’s attention to. In Kotze v Kotze 1953 (2) SA 184 (C) Herbstein J said at 187 F:

‘The matter is one of public policy which requires that there shall be obedience to orders of Court and that people should not be allowed to take the law into their own hands.’

It is for these reasons that Froneman J pointed out in Bezuidenhout v Patensie Sitrus Beherend BpK 2001 (2) SA 224 (E) at 229 B – D:

‘An order of a Court of law stands until set aside by a Court of competent jurisdiction. Until that is done the Court order must be obeyed even if it may be wrong (Culverwell v Beira 1992 (4) SA 490 (W) at 494 A – C). A person may even be barred from approaching the Court until he or she has obeyed an order of Court that has not been properly set aside (Hadkinson v Hadkinson [1952] 2 All ER 567 (CA); Byliefeldt v Redpath 1982 (1) SA 702 (A) at 714).’ ”

[43] Mr Khupe submitted that it would be fair to all parties concerned (as advised by warrant officer Ambata in par. 32 (supra) ) if this Court would order that respondents may inspect the contents of the safe in the presence of second applicant and his legal practitioners in order to ascertain possible criminal conduct by the applicants or lack thereof.

[44] This Court does not see the necessity for any such order. In Ntoyakhe v The Minister of Safety and Security and Others 1999 (2) SACR 349 (ECD) at 354 e – f Erasmus J said the following:

“In the context of s. 20, the word “seize” … encompasses … not only the act of taking possession of an article, but also the subsequent detention thereof. The word is capable of such a construction, and the right conferred by the use thereof in chap. 2 would be rendered worthless were it limited to the initial act of seizing, as the subsequent detention thereof would then fall outside the ambit of s. 20.”

[45] If this Court is required to condone ex post facto the act of seizing the safe this Court must then also condone the continued detention of the safe by the Namibian Police. Such an order cannot be given since the initial seizure of the safe was unlawful.

[46] Mr Khupe further urged this Court to have regard to an affidavit by Mr D F Small. Mr Small, who is a Deputy Prosecutor-General in the office of the Prosecutor-General, deposed to an affidavit on behalf of the Prosecutor-General. He stated that the interest of the Prosecutor-General in this application was that as prosecuting authority of all crimes allegedly committed in Namibia the Prosecutor-General must see to it that crimes are fully investigated prior to a decision whether to seize anything in terms of the provisions of section 20 of the Criminal Procedure Act 51 of 1988.

Mr Small continued to analyse the founding affidavit of the second applicant and made certain submissions. This Court was also referred to the Currency and Exchanges Act, 1933 and the Exchange Control Regulations published in terms of that Act.

Mr Small further stated, in his affidavit, that it is prima facie apparent from these regulations and the Bank of Namibia Act, 1977 that anyone who is in possession of foreign currency and who wishes to use it in Namibia to, for example buy something in Namibia, has to approach an authorized dealer to obtain currency that is legal tender in Namibia and use such legal tender to pay for example the applicants. Anyone, so it was suggested, who buys foreign currency from anyone who is not an authorised dealer commits an offence and anyone who facilitates this at least might be committing the offence of inciting or assisting another to commit such an offence.

[47] In interpreting the last sentence I am of the view that Mr Small is not suggesting that this Court might be assisting the applicants in continuing to contravene the relevant exchange control regulations should this Court allow the applicants to retain the “US dollars” which are allegedly inside the safe of the applicants.

[48] Contrary to what was advanced by Mr Small, it was submitted by Ms Vivier, that the possession of foreign currency is not per se an offence but that it is what you do with it which creates the offence.

It is however not necessary for me, (in the light of my findings (supra) ), to decide whether or not the applicants may lawfully possess foreign currency.

I wish to endorse what Jafta J said in Dyani v Minister of Safety & Security and Others 2001 (1) 634 (TKD) where it was contended that by virtue of the provisions of section 125 (5) (b) of the Road Traffic Act 29 of 1989 (applicable in Transkei) it was incompetent for that Court to direct that a vehicle be returned to the applicant as his possession thereof would constitute an offence. The Court expressed itself as follows at 642 b – c:

“It suffices to say that, generally speaking, the Courts will not sanction unlawful seizures and where such seizures have occurred orders would issue for the return of the seized articles. This does not, however, mean that the person to whom the articles are returned could be legally permitted to possess them instead it would mean that the police have to start afresh in seizing the articles and acting in compliance with requirements of the law regulating seizures.”

(Emphasis provided)

[49] In my view members of the Namibian Police Force acted within their powers when they tried to investigate the source of the amount of N$114 920.00 which was hidden in the socks of an Angolan national. Monies, including foreign currency, may in terms of the provisions of section 20 of the Act be seized by the State. However the instruments (i.e. search warrants) utilized to effect seizures during such investigations were fatally flawed and thus invalid.

[50] In respect of the issue of urgency, Mr Khupe conceded that the matter was one of urgency. I can do no better but to refer in this regard to what this Court said in Swanepoel v Minister of Home Affairs and Others 2000 NR 93 at 95 A – B:

“It is trite that urgency does not only relate to life or liberty, but also includes commercial interests which may justify the invocation of Rule 6 (12) of the Rules of Court no less than any other interests.”

[51] It is a fundamental rule that an award of costs is a matter wholly within the discretion of the Court, (See Van der Ploeg v Vivier & Another 1966 (3) SA 218 (SWA) at 222 A – B) and that as a general rule the party who succeeds should be awarded his or her costs.

(See Union Government v Gass 1959 (4) SA 401 (A) at 413 C – E).

An award of costs on a scale as between attorney and client will not be lightly granted by a Court unless the circumstances which gave rise to the action or application is of such a nature that a court may consider it just to ensure that a successful party will not be out of pocket in respect of the expense caused to him by the litigation. One of the grounds upon which a court may (See Nel v Waterberg Landbouwers Ko-operatiewe Vereeniging 1946 AD 597 at 607) make a special order as to costs is where the conduct of a litigant is deplorable and highly contemptuous of the Court.

(See Caluza v Minister of Justice and Another 1969 (1) SA 251 9NPD) at 251 F – H).

[52] In Mudzima v Chinhoyi Municipality and Another 1986 (3) SA 140 (ZHC) at 144 G – H the Court expressed itself as follows in respect of costs orders on attorney-client scale:

“The subsequent actions, however, were necessitated by the respondents’ apparently defiant attitude towards the Court orders, and their refusal to comply with the terms of those orders. It is my view that, in such circumstances, there are ample grounds warranting the award of costs on the higher scale.”

[53] In casu, the conduct of the police officers (i.e. warrant officer Ambata and chief inspector Agas) was deplorable and highly contemptuous of the first court order. As in (Mudzima (supra) they manifested a stubborn and defiant attitude despite the fact that they had been advised by officers of this Court as well as by the Prosecutor-General to comply with the first Court.

This Court therefore as a mark of its disapproval of the conduct of the afore-mentioned officers mulcted the 4^th respondent (the Minister of Safety & Security) with a special cost order on a sale as between attorney and client in respect of the second application.

These then were the reasons why this Court issued the rules nisi in paragraphs (1) and (2) (supra).

___________

HOFF, J

ON BEHALF OF THE 1^ST & 2^ND APPLICANTS: ADV. VIVIER

Instructed by: SISA NAMANDJE & CO.

ON BEHALF OF THE 1^ST – 5^TH RESPONDENTS: MR KHUPE

Instructed by: GOVERNMENT ATTORNEY

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