Founding Affidavit (Teckla Lameck)

8/7/2019 Founding Affidavit (Teckla Lameck)

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CASE NO:

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TECKLA NANDJULA LAMECK

JEROBEAM KONGO MOKAXWA

and

THE PRESIDENT OF THE REPUBLIC OF

NAMIBIA

THE MINISTER OF JUSTICE

PENDUKENI LIVULA-ITHANA

THE PROSECUTOR-GENERAL OF NAMIBIATHE ATTORNEY-GENERAL OF NAMIBIA

YANG FAN

THE DIRECTOR OF THE ANTI-CORRUPTION

COMMISSION

1ST APPLICANT

2ND APPLICANT

1ST RESPONDENT

2ND RESPONDENT

3RD RESPONDENT

4

TH

RESPONDENT5TH RESPONDENT

6TH RESPONDENT

7TH RESPONDENT

________________________________________________________________

FOUNDING AFFIDAVIT

________________________________________________________________



I the undersigned,

TECKLA NANDJILA LAMECK

do hereby make oath and state as follows:

THE PARTIES

1. I am

1.1 an adult female person, Commissioner of the Namibian Public Service

Commission and the first applicant herein residing at 8 Van Zyl,

Suiderhof, Windhoek;

1.2 the first accused in pending criminal proceedings against the 8th

respondent (“Yang Fan”), the second applicant and I (“the pending the

criminal proceedings”).

1.3 personally acquainted with the facts stated hereinafter unless the contrary

clearly appears from the context thereof;

1.4 duly authorized to depose to this affidavit and to bring this application on

behalf of the second applicant as well. I refer to his confirmatory affidavit.

2. The second applicant is JEROBEAM KONGO MOKAXWA an adult male

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residing at 79 Gever Street, Ludwigsdorf, Windhoek and the second accused in

the pending criminal proceedings.

3. The first respondent is the PRESIDENT OF THE REPUBLIC OF NAMIBIA

(hereinafter “the President”), cited in his official capacity, c/o the Government

Attorneys situated at 12th floor, Sanlam Building, Independence Avenue,

Windhoek.

4. The second respondent is PENDUKENI LIVULA-ITHANA, (“Mrs “Ithana”) an

adult female politician, who will be served at the same address as the third

respondent.

5. The third respondent is THE MINISTER OF JUSTICE (“the Minister”), cited

in an official capacity, c/o the Government Attorneys situated at 12th floor,

Sanlam Building, Independence Avenue, Windhoek. Part of the applicants’ case

in this matter is that the simultaneous and dual appointment by the first

respondent of Pendukeni Livula-Ithana (second respondent) as the third and fifth

respondent was done ultra vires the provisions of the Namibian Constitution. For

that purpose Pendukeni Livula-Ithana is cited in her personal as well as her

official capacity, on the basis that she is not in law the Minister, a matter in which

she in her personal capacity has a direct and substantial interest.

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6. The third respondent is the PROSECUTOR-GENERAL OF THE REPUBLIC

OF NAMIBIA, (“the Prosecutor-General”) duly appointed in terms of Article 88

of the Namibian Constitution, with principal place of business at the High Court

Building, Independence Avenue, Windhoek.

7. The fourth respondent is THE ATTORNEY-GENERAL OF THE REPUBLIC

OF NAMIBIA cited in his official capacity, c/o the Government Attorney

situated at 12th floor, Sanlam Building, Independence Avenue, Windhoek.

8. The sixth respondent is YANG FAN, (“Yang Fan”) an adult male whose full and

further particulars are unknown and the third accused in the pending criminal

proceedings, but who will be served personally.

9. The seventh respondent is THE DIRECTOR OF THE ANTI-CORRUPTION

COMMISSION cited in his official capacity, with his place of business situated

at 12th floor, Sanlam Building, Independence Avenue, Windhoek

BACKGROUND

10. The sixth respondent, second applicant and I, are respectively the third,

second and first accused in the pending criminal proceedings. We were all

arrested during July 2009. All three of us have been granted bail. The date on

which the criminal trial will commence has not been determined yet.

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11. Since our arrest, the Prosecutor-General has served various charge sheets

on us. Although they differ materially, I submit that it is not necessary for

purposes of this application, to annex all those charge sheets to this affidavit. I

only annex the last charge sheet which we have received (annexure “TL1”,)

indicating which criminal charges are levelled against us, and in respect of which

charges we would most probably stand trial in due course. Annexure “TL1” gives

a short synopsis of the charges levelled against us and indicates which accused is

charged with which count. Thereafter the Prosecutor-General endeavours to

summarise the facts on which the charges are based. I submit that some of the

summaries are wholly insufficient as they merely reiterate the wording of the

relevant statutory provisions themselves, without stating the essential facts on

which the charges are based. Nevertheless, I am advised that this issue will be

taken up by our legal practitioners of record on a separate occasion and should not

form part of this constitutional application.

12. Despite the fact that the criminal charges levelled against us have changed

from time to time, I verily believe that the facts on which the Prosecutor-General

will rely for purposes of the criminal proceedings, will remain in essence the

same.

13. I am advised and submit that the invalidity of a statute on grounds of its

unconstitutionally with the Namibian Constitution is determined by an objective

enquiry. Accordingly, constitutionality of provisions of the relevant statutes, i.e.

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The Prevention of Organized Crime Act 29 of 2004 (the “POCA Act”), and the

Anti-Corruption Act, No. 8 of 2003 (“the Anti-Corruption Act”) is to be

determined on that basis. The subjective position of any party to the enquiry

cannot have a bearing on the constitutional status of any impugned legislation or

its provisions; I understand that a statute may not be constitutional vis-à-vis one

accused but unconstitutional vis-à-vis another accused.

ESSENTIAL FACTS

14.I am advised that it is nevertheless incumbent on the applicants to

establish our locus standi to seek the relief in issue.In this regard it is important to

note the material facts on which the Prosecutor will rely during the criminal

proceedings. I do not suggest that what follows, is an all-encompassing version of

the facts which would be presented by the Prosecutor-General at the criminal trial,

but I merely summarize what has been stated by the Prosecutor-General

previously.

15. On 14 May 2008 the Ministry of Finance (“MoF”), on behalf of the

Government of Namibia entered into a contract for the supply of x-ray equipment

designed to scan the contents of containers and airline baggage. The supplier of

this equipment was Nuctech Company Ltd (“Nuctech”) which is a corporation

incorporated under the laws of the People’s Republic of China with its principal

office at 2/F Block, A, Tongfang Building, Shuangquinglu, Beijing, China. A

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copy of the agreement entered into between MoF and Nuctech is annexed marked

annexure “TL2”.

16. Annexure “TL2” was executed on behalf of Nuctech by Yang Fan who

was given the authority to do so by a power of attorney executed by the Chairman

of the Board of Nuctech. A copy of the power of attorney appears at the end of

annexure “TL2”. Annexure “TL2” was executed on behalf of the MoF by Mr Carl

Schlettwein, the then Permanent Secretary of the MoF.

17. Article 3.1 of annexure “TL2” provides that the purchase price of the x-

ray equipment was USD 55,348,800 of which USD 12,828,800 was to be paid by

the Namibian Government and the balance, USD 42,520,000 was to be advanced

by the Chinese Government pursuant to a concessional loan facility. Article 3.1

goes on to state that the “Namibian Government funding is to be used solely for

the advance payment for the Nuctech to start the production of the whole contract

goods”.

18. On 12 December 2008 Nuctech issued a commercial invoice in the sum of

USD 12,828,800 to MoF. The invoice provided particulars of the account with the

Export Import Bank of China to which this payment was to be made. A copy of

this invoice is annexed marked “TL3”.

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19. On 10 February 2009, Nuctech entered into two further contracts with a

Namibian Close Corporation called Teco Trading CC (“Teko”). One contract was

described as an Agency Agreement (annexed as “TL4”). The other was a Contract

for Consulting Services (annexed as “TL5”). Both contracts were signed by Rong

Yonglin, Chairman of the Board of Nuctech and by me on behalf of the Teko.

20. Under the Agency Agreement Teko agreed to act as Nuctech’s project

agent to develop the project to supply x-ray inspection system to the MoF. The

agreed fee for providing this service was USD 1,600,108. Under the Contract for

Consulting Services Teko agreed to provide project services as specified in the

appendix for a fee of USD 2,629,300.

21. The appendix to annexure “TL5” states that the consultant’s key services

are:

“a) to facilitate the Namibian Ministry of Finance to make the punctual remittance of advance payment so as to get the goods ready for the dispatch in time;

b) to assist in answering FAQ’s of Nuctech’s high energy x-ray Non-intrusivecontainer/vehicle inspection systems in the duration of the collection of the advancepayment;

c) to provide other assistances, if necessary, to Nuctech in the duration of the collectionof the advance payment”.

22. The members of Teko are the second applicant and I, each of whom holds

a 50% interest. A copy of Teko’s founding statement is annexed as “TL6”. The

registered office of Teko is 8 Van Zyl Street Suiderhof, which is also my home

address.

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23. On 27 February 2009 MoF sent the sum of USD 12,828,800 to Nuctech by

means of a telegraphic transfer. A copy of the transmission is annexed as “TL7”.

This money was sent to account no.840221030006666 in the name of Nuctech at

the Beijing branch of the Export-Import Bank of China. These were the banking

particulars provided by Nuctech to MoF.

24. On the same date three invoices for USD 1,509,300; USD 1,120,00; and

USD 1,600,108.05 addressed to Nuctech were prepared by Teko and signed by

second applicant. Copies the three invoices referred to are annexed as “TL8”,

“TL9” and “TL10” respectively.

25. Between 11 and 12 March 2009 three telegraphic transfers were

transmitted to Bank Windhoek for payment to account no. 8001552111 belonging

to Teko. These transfers originated from Nuctech. The transfers were for USD

1,509,280; USD 1,119,980; and USD 1,600,088.05. These three amounts total

USD 4,229,348.05. As Teko’s bank account is a Namibian currency account the

three USD transfers were converted to Namibian dollars totaling N$

42,061859.47.

26. On 10 April 2009 four further contracts were executed. The first of these

was between Nuctech and Teko. This contract was executed on behalf of Nuctech

by Rong Yonglin, who in the contract styles himself as ”the Chairman of the

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Board of Nuctech Company Ltd”. This contract was signed by me on behalf of

Teko. A copy of this contract is annexed as “TL11”.

27. Annexure “TL11” is a titled “Supplement to Agency Agreement”. It refers

to an Agency Agreement dated 19 May 2008. Annexure”TL11” changes the

original Agency Agreement in the manner set out in the Supplement. The

Supplement provides that Nuctech’s payment obligations are now to be USD

12,828,800, less the amount paid pursuant to the contracts referred to as H-2-09-

0070 and H-2-09-0071 (“TL4” and “TL5”). This left a balance outstanding of

USD 8,599,391.95. This new contract price (USD 12,828,800) is the same

amount as the advance payment that the MoF paid up front pursuant to annexure

“TL2”. The wording in annexure “TL5” is that the amount should be used “solely

for the advance payment for the seller (Nuctech) to start the production of the

whole contract goods”.

28. The second, third and fourth contracts which were executed on 10 April

2009 are also contracts for consulting service. Each of these contracts is between

Nuctech and Teko. Each contract is signed by me on behalf of Teko. The third

and fourth contracts have been signed on behalf of Nuctech by its Director

General Manager, Li Zhijun. Each of these three contracts relate to three different

‘lots’ as described in the contract between the Ministry of Finance and the

Nuctech. Annexure “TL2” provides for the delivery of 13 x-ray scanning systems

in three lots (Article 5). The appendix to each of these three contracts is expressed

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to be USD 3,330,56054; USD 1,869,586.77 and USD 3,399,344.65 respectively.

These sums total USD 8,599,381.80.

29. I must point out and emphasize that the above factual background is by no

means a detailed factual scenario of all the contracts which Teko entered into. I

have already, on a previous occasion, provided a more detailed version to the

Prosecutor-General. We reserve our rights in full to deal with all the detailed facts

at the appropriate moment. I merely refer to the abovementioned facts and

background circumstances to illustrate that the amounts which Teko received

from Nuctech, portions of which were subsequently paid to Yang Fan, second

applicant and I, were received by Teko prior to 5 May 2009. Thus had it not been

for the retrospective implementation of the POCA Act, all acts done by Teko,

second applicant and I, had to be judged with reference to existing legislation at

the time, not with reference to legislation which had no enforceable status at the

time. I refer to these background facts simply to illustrate fully below, the

magnitude of the unconstitutional provisions of the POCA Act when those

provisions were made retrospectively effective on 5 May 2009.

30. Having given a general background I now turn to the relief claimed in the

Notice of Motion. Without repeating the specific relief claimed, I point out that

this constitutional attack consists of basically three issues. The first is that it is our

respectful submission that Pendukeni Livula-Ithana was not lawfully appointed as

the Attorney-General or the Minister of Justice of the Republic of Namibia.

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31. Thus this application also concerns her ultra vires and unconstitutional

appointment in a dual capacity and on the same day, as Attorney-General and

Minister of Justice. Both appointments are ultra vires. Secondly, I address the

unconstitutionality of various provisions in the POCA Act, and lastly I refer to the

unconstitutionality of a number of provisions contained in the Anti-Corruption

Act.

FIRST ATTACK: NO VALID COMMENCEMENT OF POCA

32. On 24 May 1995, the first respondent purportedly appointed the second

respondent as the Minister of Justice of Namibia as well as the Attorney-General

of the Republic of Namibia. I refer to Government Gazette number 3436 of 2005

annexed as annexure “TL12”. I am advised and I respectfully submit that such

dual appointments are contrary to the provisions of the Namibian Constitution,

more specifically Articles 86 and 87, read with Article 35 (and Article 32(1) and

(3)).

33. I point out that the Constitution in Articles 32(1) and (3) specifically

distinguishes between Ministers and the Attorney–General. The second

respondent’s purported appointment as Minister of Justice also made her a

member of Cabinet, as envisaged in Article 35 of the Constitution. This Article

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requires Cabinet shall only consist of those officials mentioned in the Article

itself. It is not permissible for the Attorney-General to be a member of Cabinet.

34. Instead Articles 86 and 87 of the Namibian Constitution provides

expressly for the appointment of the Attorney-General. Those Articles provides as

follows:

34.1 Article 86

“There shall be an Attorney-General appointed by the President in accordance with theprovisions of Article 32(3)(1)(cc) hereof.”

34.2 Article 87

“The powers and functions of the Attorney-General shall be:(a) to exercise the final responsibility for the office of the Prosecutor-General;(b) to be the principal legal adviser to the President and Government;(c) to take all action necessary for the protection and upholding of the

Constitution;(d) to perform all such functions and duties as may be assigned to the Attorney-

General by Act of Parliament.

35. It is apparent that the Attorney-General, is the principal legal adviser to

the President and Government. Accordingly, the Attorney-General has to advise

the Government, with very specific constitutional duties apart from those of a

Minister. Indeed, those duties may require him or her to take action or initiate

inquiries or steps against a Minister, including the Minster of Justice, the Cabinet

itself or even the President.

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36. Clearly the Constitution demands an independent legal functionary, who

may not, by the very wording of the Constitution, be a member of Cabinet, and

bound by the principles of Cabinet allegiance and responsibility.

37. I submit further that whichever procedures are followed by Cabinet to

make decisions (i.e. by consensus and/or majority vote), the legality of such

decision-making process is threatened by the very dual capacity of the second

respondents’ appointment.

38. In the event moreover of the Minister of Justice’s own vote being

determinative of decisions which should be made by Cabinet, she also has to

advise herself.

39. I respectfully submit that such a situation creates an untenable

constitutional dilemma, and is not countenanced by the provisions of the

Namibian Constitution. I accordingly submit that the dual appointment of the

second respondent as Attorney-General and Minister of Justice was ultra vires

and null and void.

40. Before I deal with Mrs Ithana’s purported action in terms of section 103 of

the POCA Act, to publish the date of commencement of the POCA Act in

Government Gazette No. 4254 of 18 April 2009, it is necessary to refer to the

following provisions of the Constitution:

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40.1 In terms of Article 44 of the Namibian Constitution, the legislative power of Namibia vests in the National Assembly;

40.2 In terms of Article 63(1) of the Namibian Constitution only the NationalAssembly shall have the power, subject to the Namibian Constitution, to

make and repeal laws for the peace, order and good governance of thecountry, and in the best interest of the people of Namibia;

40.3 Article 63(1) of the Namibian Constitution provides that every Bill passedby Parliament shall, in order to acquire the status of an Act of Parliament,be signed by the President of the Republic of Namibia, whereafter it mustbe published in the Government Gazette;

40.4 In terms of Article 1(b) of the Constitution, the Namibian Constitution isthe supreme law in Namibia.

41. I submit that it is clear from the provisions of the Constitution, the

principle of separation of powers, the rule of law and the supremacy clause in the

Constitution, that the National Assembly alone is entrusted with legislative

powers – be that to make laws or repeal laws or suspend the provisions of any

law. These legislative powers cannot be surrendered or transferred in whole or in

part.

42. I am advised that it is, nevertheless constitutionally permissible for the

President to assent to a Bill in which it is provided that a certain Minister can

determine on which day an Act should commence. Such determination (i.e. of the

date of commencement of the Act), should then be made by a person as

mentioned in the said Act, provided that such person has been duly appointed as

envisaged in the Namibian Constitution. I respectfully submit that given the ultra

vires appointment of the second respondent as Attorney-General and Minister of

Justice of the Government of Namibia, her purported act in terms of which she

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determined the commencement of the POCA Act in her purported capacity as

Minister of Justice is ultra vires section 103 of the POCA Act itself, as well as

ultra vires Articles 44 read with Article 63(1) of the Namibian Constitution.

Hence the POCA Act never commenced, and all criminal charges levelled against

the second applicant and I in terms of the POCA Act are null and void.

UNCONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE POCA ACT

43. I submit that, even if the commencement date of the POCA Act was

lawfully determined, a number of provisions contained in the POCA Act are in

any event unconstitutional. It is therefore necessary to refer to the relevant

provisions of the Constitution.

44. I refer to Articles 12,16,21,22 and 25 of the Constitution, and submit that:

(a) “fair and public hearing” as envisaged in Article 12(1)(a) does not only refer toprocedural fairness but also to substantive fairness;

(b) In order to give practical manifestation to rights as envisaged in Article 12(1)(e)

“preparation and presentation” of any accused’s defence before thecommencement of and during his/her trial, the charges levelled against theparticular accused as defined in legislation should be reasonably clear;

(c) More importantly, Article 12(3) pertinently prohibits three separate kinds of Stateabridgment of an accused’s rights. Firstly, the retrospective enforcement of a“criminal offence” is prohibited. Secondly, the retrospective intervention inrelation to “any act or omission”, is prohibited, and thirdly, even if certain actsconstituted a criminal offence when those acts were committed, the penalty inrespect of such committed acts may not exceed the applicable penalty at the timethe offence was committed.”

45. The provisions of Articles 7, 8, 11, 12(3), 16, 21 and 22 of the

Constitution should be read together. Accordingly, a business or trade which was

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lawfully conducted at the time and in respect of which a person became entitled to

proceeds, and property, may not retrospectively be declared unlawful and/or

illegal. The property or rights, so lawfully obtained, may also not become subject

to the restraint and confiscation provisions contained in the POCA Act.

Legislation having such an effect, will clearly infringe the constitutional rights

referred to above.

46. I now refer to various provisions contained in the POCA Act.

47. Firstly, section 1 of the POCA Act contains the following definitions:

"proceeds of unlawful activities" means any property or any service, advantage,benefit or reward that was derived, received or retained, directly or indirectly inNamibia or elsewhere, at any time before or after the commencement of this Act,in connection with or as a result of any unlawful activity carried on by any person,and includes any property representing property so derived and includes propertywhich is mingled with property that is proceeds of unlawful activity;

"property" means money or any other movable, immovable, corporeal or incorporeal thing and includes any rights, privileges, claims and securities andany interest in the property and all proceeds from the property;

"unlawful activity" means any conduct which constitutes an offence or whichcontravenes any law whether that conduct occurred before or after thecommencement of this Act and whether that conduct occurred in Namibia or elsewhere as long as that conduct constitutes an offence in Namibia or contravenes any law of Namibia.

48. Section 1(5) of the POCA Act provides:

Nothing in this Act, or in any other law, is to be construed so as to exclude theapplication of any provision of Chapter 5 or 6 on account of the fact that-

(a) any offence or unlawful activity concerned occurred; or (b) any proceeds of unlawful activities were derived, received or retained

17



before the commencement of this Act.

49. Section 4 of the POCA Act provides:

Disguising unlawful origin of property

Any person who knows or ought reasonably to have known that property is or forms part of proceeds of unlawful activities and-

(a) enters into any agreement or engages in any arrangement or transactionwith anyone in connection with that property, whether that agreement,arrangement or transaction is legally enforceable or not; or

(b) performs any other act in connection with that property, whether it isperformed independently or in concert with any other person,

and that agreement, arrangement, transaction or act has or is likely to havethe effect-

(i) of concealing or disguising the nature, origin, source, location,disposition or movement of the property or its ownership, or anyinterest which anyone may have in respect of that property; or

(ii) of enabling or assisting any person who has committed or commitsan offence, whether in Namibia or elsewhere-

(aa) to avoid prosecution; or (bb) to remove or diminish any property acquired directly,

(cc) or indirectly, as a result of the commission of an offence,

commits the offence of money laundering.

50. In turn section 6 of the POCA Act provides:

Acquisition, possession or use of proceeds of unlawful activities

Any person who-(a) acquires;(b) uses;(c) has possession of; or (d) brings into, or takes out of, Namibia,

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property and who knows or ought reasonably to have known that it is or forms

part of the proceeds of unlawful activities commits the offence of money

laundering.

51. Section 7 of the POCA Act provides:

Offences of corporations

Where an offence under section 4, 5 or 6 is committed by a body of persons,whether corporate or incorporate, every person who, at the time of thecommission of the offence acted in an official capacity for or on behalf of thatbody of persons, whether as a director, manager, secretary or other similar office,

or was purporting to act in that capacity, commits that offence.

52. I submit that the phrase “at any time before or after the commencement of

this “Act” as contained in the definitions of “proceeds of unlawful activities”, and

“unlawful activity”, if read with the offences of money laundering created in

terms of sections 4 and 6 of the POCA Act is clearly ultra vires the provisions of

Article 12(3) of the Constitution. I submit this for the following reasons:

53. Both sections 4 and 6 of the POCA Act, which sections create the offence

of money laundering, contain the concept “unlawful activity” as defined in section

1 of the POCA Act. In turn, the concept “unlawful activity” refers to two kinds of

conduct. Firstly, it refers to conduct which constitutes an offence, and secondly, it

refers to conduct which does not constitute an offence, but merely contravenes

any law. By virtue of the retrospective effect of the definition of “unlawful

activity” the two kinds of conduct, which includes previous conduct which did not

constitute an offence at the time it was committed, now suddenly constitutes a

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new offence of money laundering, even in circumstances where the then lawful

conduct occurred prior to the date on which the Act commenced.

54. But the definitions of “proceeds of unlawful activities” and “unlawful

activity” do not stop there. In respect of certain conduct (which did not previously

constitute an offence) such conduct is now also subject to the penalty provision

contained in section 11 of the POCA Act, which provides as follows:

“Any person convicted of an offence contemplated in section 4,5 or 6 is liabilityto a fine not exceeding N$ 100 million, or to imprisonment for a period notexceeding 30 years”.

55. Even conduct which previously constituted on offence, and which

conduct, since (5 May 2009), now also constitutes an offence as envisaged in the

newly created offences of money laundering, is now subject to the penalty

provision of section 11 of the POCA Act, which exceeds previous applicable

penalties by far.

56. Moreover, conduct which was lawful prior to the commencement of the

POCA Act, being conduct which were executed in terms of a persons Article

21(1)(j) right to trade, and lawfully entitled that person to obtain property as

envisaged in Article 16 of the Namibian Constitution, suddenly became unlawful

conduct with retrospective effect. Not leaving matters there, the retrospective

effect of “unlawful activity” and “proceeds of unlawful activities” then makes

such Article 16 properties (i.e. property previously lawfully obtained) subject to

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the various provision contained in the POCA Act dealing with restraint orders,

confiscations orders, and forfeiture of property orders.

57. Given the facts to be presented by the Prosecutor-General to the court in

the pending criminal proceedings, I submit that it is abundantly clear that the

proceeds we earned as a result of contractual relationships referred to above, were

paid to us or accrued to us prior to 5 May 2009. Had it not been for the

retrospective effect of the definitions of “proceeds of unlawful activity” and

“unlawful activity” contained in the POCA Act itself, as well as the various

sections which contain the phrases “proceeds of unlawful activity” and “unlawful

activity” those provisions would not have been applicable to us. Accordingly,

ordinary lawful contractual business as envisaged in Article 21(j) of the Namibian

Constitution, and the proceeds which fell due to us, or accrued to us in respect of

transactions which occurred prior to 5 May 2009, are, by virtue of the definitions

of “unlawful activity” and “proceeds of unlawful activity” penalized by the

further restraint and confiscation provisions of the POCA Act.

58. Even if our conduct constituted a criminal offence (other than the offences

created by the POCA Act itself) at the time we entered into the agreements, such

offences would not have been subject to the high penalties referred to in the

POCA Act.

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59. I submit that the word “penalty” used in Article 12(3) of the Constitution

also includes the penalties referred to in Chapters 5 and 6 of the POCA Act.

60. In short, in my submission the retrospective effect of the definitions of

“unlawful activity” and “proceeds of unlawful activities” has the potential of

criminalizing activity, which was not an offence at the time it was committed, and

make property which was previously legally obtained as envisaged in Article 16

of the Namibian Constitution subject to confiscation. Thus the same lawful acts

which created property rights previously, now constitute not only criminal

offences, but the very same property, obtained through legal acts, may now also

forfeited to the State.

61. What makes this legislation even more constitutionally objectionable is

that all these retrospective provisions were enacted while not a single reference is

made (in the POCA Act) to Article 22(b) of the Namibian Constitution.

62. Apart from the aforesaid reasons why the various sections referred to in

the notice of motion are unconstitutional, I submit that section 1(5) of the POCA

Act is also patently unconstitutional as it clearly purports to authorize the said

retrospectivity in contravention of Article 12(3) of the Constitution.

63. I accordingly respectfully submit that the applicants are entitled to the

relief sought in respect of the POCA Act.

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THE ANTI-CORRUPTION ACT

64. I am advised that, in the Namibian constitutional dispensation, the rule of

law is paramount and not negotiable. Indeed, its status is clear form Article 1

itself. The rule of law requires that all public power must be source-based, which

means that the State, when making legislation, should exercise public powers

within the boundaries of the law. As a point of departure, every person has a right

to practice a profession or participate in a trade as envisaged in Article 21(j) of the

Constitution. Of course the State has the power to legislate but, that power has a

limitation. That limitation is the Constitution. Article 12 provides that “in the

determination of their civil rights and obligations or any criminal charges

against them, all persons shall be entitled to a fair and public hearing …”.

Further, Article 12(3) provides that “no persons shall be tried or convicted for

any criminal offence or on account of any act or omission which did not

constitute a criminal offence at the time when it was committed…”

65. Underpinning the rule of law is the principle of legality. Conduct cannot be seen

to be or be made a crime, unless such conduct:

65.1 has been recognized by the law as a crime;65.2 in clear terms;65.3 before the conduct took place;65.4 without the court having to stretch the meaning of the words and concepts

in the definition to bring the particular conduct of the accused within thecompass of the definition; and

65.5 after conviction, the imposition of punishment also complies with the four principles set out immediately above.

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66. I submit that, if the formulation of a crime is to vague and unclear, it is

difficult for the ordinary subject to understand exactly what is expected of him or

her. Put most simply, the inquiry is whether the reasonable person, capable of

reading, is able to understand the provisions contained in the Anti-Corruption Act

referred to below. If the legislation is so difficult to understand or interpret, the

conduct may only become a crime once the court has interpreted it. I submit that,

if that is the case, the constitutional principles (i.e. of procedural and substantial

fairness) enunciated in Article 12 of the Constitution, as well as the prohibition

against an infringement of the rights protected in Articles 7 and 8 of the

Constitution, are transgressed. In such circumstances, the enacted law is

unconstitutional. Firstly, because a trial cannot be fair as demanded by Article 12

of the Constitution; and secondly, the crime will only become clear once the court

has interpreted the legislation. If that is the case, the provisions of Article 12(3) of

the Constitution are transgressed because the conduct did not constitute “a

criminal offence at the time that it was committed” . It only becomes a crime once

the court has interpreted a vague piece of legislation. When a section in any

legislation which endeavours to create a new crime is too unclear it “would be

destructive of the principle of legality which requires certainty as to the definition

of crimes”.

67. I now refer to certain provisions contained in the Anti-Corruption Act.

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68. In subsection 32 of the Anti-Corruption Act “corruptly” is defined as meaning incontravention of or against the spirit of any law, provision, rule, procedure,process, system, policy, practice, directive, order or any other term or conditionpertaining to-

(a) any employment relationship;(b) any agreement; or (c) the performance of any function in whatever capacity;”

69. The Anti-Corruption Act also defines gratification as to include:

(a) money or any gift, loan, fee, reward, commission, valuable security or propertyor interest in property of any description, movable or immovable;

(b) any office, dignity, employment, contract of employment or services and anyagreement to give employment or render services in any capacity;

(c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(d) any valuable consideration or benefit of any kind, any discount, commission,rebate, bonus, deduction or percentage;

(e) any forbearance to demand any money or money's worth or valuable thing;(f) any service or favour, including protection from any penalty or disability

incurred or apprehended or from any action or proceedings of a disciplinary, civilor criminal nature, wether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty;

(g) any right or privilege;(h) any aid, vote, consent or influence, or any pretended aid, vote, consent or

influence;(i) any offer, undertaking or promise, whether conditional or unconditional, of any

gratification within the meaning of any of the preceding paragraphs;

70. I also refer to, section 33, 36, 42 and 46 of the Anti-Corruption Act, and

point out that the second applicant and I will have to stand trial in respect of those

sections in the pending criminal proceedings. Those sections provide as follows:

71. “33 Offence of corruptly accepting gratification

A person commits an offence who, directly or indirectly, corruptly solicits or accepts or agrees to accept for the benefit of himself or herself or any other person any gratification as-

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(a) an inducement to do or to omit doing anything;(b) a reward for having done or having omitted to do anything.”

72. “36 Corrupt acquisition of private interest by public officer

A public officer commits an offence who knowingly and corruptly, and otherwisethan as a member of a registered joint stock company consisting of more than 20persons, acquires or holds, directly or indirectly, a private interest in any contract,agreement or investment emanating from or connected with the public body on or in which he or she serves as a member or as an employee or which is made onaccount of the public body.”

73. “42 Bribery for giving assistance in relation to contracts

A person commits an offence who corruptly offers or gives or agrees to give any

gratification to any other person whether for the benefit of that person or anyother person, as an inducement or a reward for giving assistance or usinginfluence, or having given assistance or used influence, in-

(2) A person commits an offence who corruptly solicits or accepts or agreesto accept, whether for the benefit of himself or herself or any other person,any gratification as an inducement or as a reward of his or her givingassistance or using influence, or having given assistance or used influence,in-

(a) the promotion, execution or procuring of any contract with a

public body, private organisation, corporate body or other organisation or institution; or

(b) the payment of the price, consideration or other moneys stipulatedor otherwise provided for in any such contract.”

74. I refer to the definition of “corruptly” and point out that the unlimited and

uncertain scope of the definition is apparent from the fact that many thousands of

laws, provision, rules, procedures, processes, systems, policies, practices,

directives and orders are to be found in Namibia. I refer to them combinedly as

“rules”. These rules may be found in every conceivable printed document,

whether stored in a drawer, on the top of a cupboard, or even in the national

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archives. They may not even be in writing. But when the Anti-Corruption Act

became of full force and effect, it is not only the contravention of those rules

which may constitute as a crime. Also a perceived transgression of the relevant

“spirit” of those rules may constitute a crime. I submit that the definitions of

“corruptly” and “gratification” are an affront to the constitutional protection

contained in Articles 7,8,11 and 12 of the Namibian Constitution I further submit

that:

74.1 The said definitions cannot be said to be reasonable, as they are so vagueand wide as to include within their sweep, not only conduct which theConstitution empowers the State to suppress, but the same definitions alsopunish the lawful exercise of other fundamental rights and freedomsguaranteed by the Constitution.

74.2 The wide sweep of these definitions leaves no breathing space for other fundamental rights to survive, in that the definitions do not define thecrime they endeavour to create with a sufficient narrow specificity.

74.3 Similarly, these definitions provide for conviction and punishment incircumstances where the offence which is created, is not reasonablycertain.

75. The sweep of the definitions is so arbitrary, uncertain and wide that the

scope of the definition, and therefore the act of giving certainty to the definition,

may only be determined once the court interprets the section. By then the criminal

proceedings are finalized and it will be impossible to prepare for the criminal trial.

The definitions leave an accused uncertain as to the conduct it prohibits, and they

leave judicial officers free to decide without any legal standard compliant with the

Constitution, what is prohibited and what is not in each particular case.

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76. The definitions are, in my respectful submission, not only understandable

by trained lawyers, but would not be understandable with sufficient certainty by

the average person.

77. In all the above circumstances I submit that the court should grant the

relief as set out in the notice of motion.

DATED at WINDHOEK on this 17th

day of March 2011.

………………………………………

TECKLA NANDJILA LAMECK

I hereby declare that the deponent has sworn to and signed this statement in my presenceat a on the day of 2011 and he declared as follows: that the

facts herein contained fall within his personal knowledge and that he understands thecontents hereof; that he has no objection to taking the oath; that he regards the oath asbinding on his conscience and has declared as follows:

“I swear that the contents of this sworn affidavit are true and correct, so help me God.”

....................................................

COMMISSIONER OF OATHS

FULL NAMES:CAPACITY:ADDRESS:

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Documents

Founding Affidavit (Teckla Lameck)