August 26 MD fends off N$2m forfeiture
THE prosecutor general has suffered a defeat in her attempt to have two cars and more than N$2 million in a bank account linked to a Congolese general forfeited to the state as being the proceeds of crime.
The PG's application to have more than N$2 million in an investment account
in the name of the managing director of the state-owned August 26 Industries,
Moses Kamunguma, and two cars bought by him declared forfeited to the state was
dismissed in the Windhoek High Court on Friday, with judge Shafimana Ueitele
finding it had not been proven that the money and two cars were derived from
Prosecutor general Martha Imalwa's contention that the court should conclude an amount of about N$2,7 million paid into a bank account of Kamunguma in June 2014 derived from unlawful activities was “founded on conjecture and speculation”, judge Ueitele said in the judgement in which he dismissed the PG's application for a forfeiture order in terms of the Prevention of Organised Crime Act.
Imalwa obtained a property preservation order over an investment account of Kamunguma and two cars in February last year, and in June last year applied to have the two vehicles and the money in the account forfeited to the state.
In her application for the property preservation order, Imalwa alleged that the two cars and money in Kamunguma's name were the proceeds of unlawful activities in the form of fraud, theft and money laundering.
She alleged that Kamunguma and his partner in a Namibian-registered close corporation, Democratic Republic of the Congo general François Olenga, gave six different versions when asked to explain the origin and purpose of the payment of N$2,7 million made into a bank account belonging to Kamunguma, and argued that there were reasonable grounds to believe the money came from unlawful activities.
Olenga is a former chief of the DRC army, and is currently a senior official in the office of DRC president Joseph Kabila.
When the money was transferred by a Chinese bank, via a German bank, to a Namibian cheque account in Kamunguma's name, the payment was reflected as “commission”, Imalwa informed the court.
Having been asked to give a declaration about the purpose of the payment, Kamunguma informed First National Bank of Namibia, where his account is held, that the N$2,7 million was for “construction”, and after the Anti-Corruption Commission was alerted of a suspicious transaction in respect of the account, he informed the ACC the money had been sent to his account by Olenga and was meant to be start-up funds for their close corporation, Imalwa said.
Kamunguma also told the ACC that when FNB asked him to explain the purpose of the payment into his account, he contacted Olenga, who then sent him an email which stated that the funds were “for our building construction project”.
Another explanation followed in January last year, when Kamunguma provided the ACC with a letter in which Olenga stated that the payment came from a refund he received from a Chinese company after he cancelled a deal to buy trucks from the company.
In February last year, Kamunguma also provided the ACC with a statement by Olenga in which he said he was owed money by a sales manager of the Chinese company involved in the alleged cancelled truck deal, and that he asked for the money to be paid into Kamunguma's bank account because their close corporation did not have its own bank account.
Imalwa also stated that Kamunguma declared the N$2,7 million as part of his personal income on his tax return in 2015. The only explanation for that declaration was that the money was not intended for the close corporation as claimed, but the funds had been paid into Kamunguma's account so that Olenga could get the money into Namibia and hide its true origin, she alleged.
In her application for a forfeiture order the PG referred the court to affidavits filed when she applied for the property preservation order, but did not attach those sworn statements or state which parts of the affidavits she was relying on, judge Ueitele remarked in his judgement. That was a shortcoming that had the result that the evidence on which Imalwa relied for the forfeiture application was not properly before the court, the judge found.
In the absence of that evidence, he found, it had not been shown that Kamunguma or Olenga made misrepresentations to FNB and thus committed fraud, or that Olenga had the money paid into Kamunguma's account to evade tax in the DRC.
Kamunguma was represented by Sisa Namandje. State advocate Mariette Boonzaier represented the PG.