LEGISLATION – CONFISCATION INQUIRY ito S 32(1) OF THE PREVENTION OF ORGANISED CRIME ACT 29 OF 2004 (POCA). CIVIL PROCEDURE – APPLICATION FOR REVIEW OF PROCEEDINGS OF MAGISTRATES COURT. Fredericks v The Prosecutor-General NAHCMD (10 October 2023)

This was an application for review concerning proceedings that took place in the Magisterial District of Gobabis, Namibia, under Section 32(1) of the Prevention of Organized Crime Act (POCA). The applicant, Jan Benedictus Fredericks, is currently serving a sentence in the Windhoek Correctional Facility. The respondents include the Prosecutor-General (PG), Mr. Davy Nambwe Kambinda, a magistrate stationed at Gobabis Magistrates Court, and the Inspector-General of the Namibian Police, Sebastian Ndeitunga.

The applicant faced charges and was subsequently convicted of theft under false pretences and money laundering under various case numbers in the Gobabis Magistrates Court. These convictions led to the initiation of a confiscation inquiry, as per Section 32(1)(a) of POCA, to determine the benefits derived from the crimes he was convicted of.

The inquiry experienced multiple postponements, with several attempts to continue the proceedings. Eventually, on April 26, 2022, the applicant was absent from court, and Magistrate Kambinda was informed that the applicant was unwilling to attend. Following testimony regarding the applicant’s unwillingness to appear, Magistrate Kambinda ordered that the proceedings continue in the applicant’s absence. A confiscation order was subsequently issued on April 28, 2022, specifying the value of benefits derived from the offense, identifying realizable property, and stating that the order is a civil judgment.

The applicant now seeks to review and set aside the proceedings and decisions made by Magistrate Kambinda on April 28, 2022, in the Gobabis Magistrates Court. The basis for this application for review is not provided in this summary, but it represents a pivotal development in this legal matter.

The primary requests are twofold: a review of the proceedings and the decision made by Magistrate Kambinda to issue a confiscation order dated April 28, 2022, and the setting aside of the proceedings and decisions related to the confiscation order.

The basis for this application revolves around several key contentions made by the applicant. He emphasizes that the core of his argument pertains to an inquiry held under Section 32(1) of the Prevention of Organized Crime Act (POCA). This inquiry resulted in a judgment and confiscation order delivered on April 28, 2022. The applicant expressed shock and distress upon discovering that these proceedings had concluded in his absence.

The applicant highlights the circumstances leading to his absence, including a transfer to the Gobabis Correctional Facility, which caused emotional distress, and his phone calls to request a postponement. Due to the absence of a transcribed record, he felt compelled to file the review application, asserting that his constitutional rights had been infringed.

Additionally, the applicant challenges the veracity of the testimony given by A/Comm Platt regarding his unwillingness to attend court. He also raises concerns about his inability to cross-examine a crucial witness, Inspector Gerson Boois, during the inquiry, which he believes violates his rights to a fair hearing.

Further discrepancies identified by the applicant include the non-compliance with various sections of POCA, such as the absence of written authorizations from the Prosecutor-General and the Inspector-General. These omissions are seen as causing the inquiry to be a nullity and unfair, resulting in prejudice to the applicant.

The review brought by the applicant concerns a confiscation inquiry authorized by Chapter 5, Part 3, Section 32 of the Prevention of Organized Crime Act (POCA). These inquiries are civil proceedings under the law, as stipulated in Section 18(1) of POCA. This characterizes them as distinct from criminal proceedings. In the Constitutional Court of South Africa’s judgment in S v Shaik, the scheme of criminal confiscation under the Act was described, emphasizing that confiscation orders involve a civil judgment for the payment of an amount of money to the state.

The applicant raised various grounds for review, including the assertion that the case was treated as a criminal matter rather than a civil one, the failure to explain his rights and the nature of the inquiry to him, and the absence of proper documentary proof or evidence. However, the court clarified that confiscation inquiries are indeed civil in nature, and the rights of the applicant to legal representation and explanations regarding proceedings were sufficiently addressed.

The court also noted that the applicant’s own actions, such as refusing to attend court hearings and displaying emotional distress over unrelated matters in the correctional facility, contributed to his absence during the inquiry. It was further explained that Section 32 of POCA authorizes such inquiries, and the procedure adopted, including hearing multiple cases in one application, was appropriate.

Ultimately, the court found no irregularities that would warrant the review of the proceedings, dismissing the applicant’s application. The character of the confiscation inquiry, as civil in nature, was upheld, and the application and authorization for the inquiry were deemed correct. The court maintained that reviews focus on procedural irregularities, not the correctness of the outcome.

PRINSLOO J

‘[60]    As a general rule, costs should be awarded to the successful party. However, the applicant is a lay litigant and an inmate at that, currently serving long-term imprisonment and has done so since 2012. I, therefore, decided against granting a cost order against the applicant.

Held that

1. 1. 1. Confiscation enquiry is civil in nature and not criminal in nature and from the record of proceedings, there is nothing that indicates that the court a quo was not alive to this fact. The applicant was referred to as the ‘defendant’ and not the accused, and the state was referred to as the ‘applicant’.
      2. The confiscation application and enquiry were correctly authorized and instituted.
      3. There was sufficient explanation of the applicant’s rights to legal representation because the applicant’s rights were explained to him.
      4. The court does not find it inappropriate that these three cases were heard in one application, as all relevant records were produced in court, and the court has the power to consider all three cases in one confiscation application.
      5. Held further that the court is entitled to look at the evidence that was presented in the criminal case in a confiscation application. There is therefore nothing amiss, with the procedure adopted in the confiscation application.
      6. The reliance by the applicant on s 83 of POCA in a confiscation application after he has already been found guilty has no basis. A confiscation enquiry is not subject to s 83 of POCA. The Inspector-General can give authorisation in appropriate cases, and the applicant’s case is not one such case.
      7. The court in reviewing the record of proceedings in this matter, finds no irregularity that may vitiate the proceedings. There are no merits in the applicant’s application, and it stands to be dismissed.

As a result, the applicant’s review application is dismissed and there is no order as to costs.