ACC ordered to return seized timber lorries

THE Anti-Corruption Commission’s seizure of two lorries carrying timber alleged to have been illegally logged in the Zambezi region was unlawful, a judge ruled in the Windhoek High Court yesterday.

The seizure of the two Scania lorries and their cargo at Walvis Bay on 2 January this year was unlawful because the ACC investigators who confiscated the two heavy vehicles belonging to the close corporation New Force Logistics did not have a warrant authorising a search of the lorries or the seizure they carried out, judge Thomas Masuku found.

He made the finding in his judgement on an urgent application through which the close corporation sued the ACC to have its lorries, and their cargo returned to it.

The Chinese-run close corporation was successful, with judge Masuku declaring the search and seizure carried out by the ACC as unlawful, and ordering the ACC to immediately return to New Force Logistics the two Scania lorries and four containers of timber that had been confiscated.

The ACC’s head of investigations, Nelius Becker, informed the court in an affidavit that the two lorries, documentation that their drivers had with them, and the timber they transported were seized as exhibits in an ongoing corruption investigation.

Becker charged that New Force Logistics, through which a Chinese resident of Namibia, Hou Xuecheng, is doing business, violated the Forestry Act and regulations under it by not obtaining the required permits for the harvesting, transportation, selling and export of timber that was cut on land at Katima Farm and in the Liseli area near Katima Mulilo in the Zambezi region.

According to Becker, the close corporation has been involved in illegally cutting down trees in that area and harvesting the timber since February last year, but a harvesting licence was issued only in April last year.

The ACC was suspecting that there had been corrupt conduct on the part of an official in the Ministry of Agriculture, Water and Forestry to have the licence issued after the fact, Becker said in his affidavit.

The power to search, seize and attach property without a warrant was invasive and had far-reaching consequences, judge Masuku remarked in his judgement.

Not only did the ACC’s investigators involved in the search and seizure of the lorries and four containers not have search warrants, but there was also no allegation that they informed the drivers of the two lorries of their right to be assisted by a legal practitioner as stipulated in the Anti-Corruption Act and they further did not issue the drivers with receipts recording what items had been seized by them, the judge noted, describing it as a serious breach of the law that is supposed to guide the ACC’s officers.

“Courts, like ordinary members of society, are naturally concerned when there are acts of criminality or corruption that are alleged to have taken place,” judge Masuku stated.

However, he added, Namibia’s Constitution grants suspects and accused persons pretrial and trial rights, including the presumption of innocence, the right against self-incrimination, and similar rights and freedoms.

“It would be a sad day in this republic, if the courts, because of the undeniable need to arrest the ubiquitous incidence of serious crime, including corruption, would close their eyes to the constitutional safeguards, thus sacrificing the rule of law and individual rights and freedoms guaranteed in the Constitution and the laws of the republic on the altar of bringing suspects to book, by hook or by crook,” he cautioned.

The courts must ensure that people suspected of having committed crimes are treated fairly and strictly regarding the law, and should not turn a blind eye if law-enforcement agents fail or neglect to adhere to the law, he stated.

“The courts cannot and should not be party to a law-breaking enterprise, even if it is perceived, in religious, political or social circles, to be for the common good. The end should never justify the means,” judge Masuku said.

Windhoek-based lawyer Kadhila Amoomo represented New Force Logistics when the case was heard two weeks ago.

The ACC was represented by government lawyer Mathias Kashindi.

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