The Bank of Namibia has won a Supreme Court appeal about a decision to declare more than N$40 million in a Namibian bank account in the name of a retired general from the Democratic Republic of Congo forfeited to the state.
The bank’s appeal against a judgement delivered in the Windhoek High Court in June last year was upheld in a judgement handed down in the Supreme Court yesterday.
The appeal judgement was written by deputy chief justice Petrus Damaseb, with whose decision acting judges of appeal Theo Frank and Dave Smuts agreed.
The Bank of Namibia appealed to the Supreme Court after High Court deputy judge president Hannelie Prinsloo reviewed and set aside a decision of the Bank of Namibia (BoN) to forfeit retired general François Olenga’s funds in an account with Nedbank Namibia.
Prinsloo also reviewed and set aside “all the associated processes and decisions preceding and on the basis of which the forfeiture order of 4 August 2023 was made”.
This includes an order in terms of which access to Olenga’s bank account was blocked in August 2020.
Olenga, who is a citizen of the Democratic Republic of Congo, asked the court to make the orders in an application filed at the High Court in October 2023.
Prinsloo found that the BoN’s director of exchange control and legal services, who first blocked Olenga’s account, did not have the authority to do that. Because of that, the BoN’s subsequent decision to forfeit the money in Olenga’s account to the state also had to be set aside, she concluded.
In the appeal judgement, Damaseb said the decision to attach and forfeit Olenga’s funds was taken by the BoN’s board of directors, and not by individual officials of the bank.
The board lawfully exercised the powers entrusted to it under Namibia’s Exchange Control Regulations, and the lawfulness of its decision did not depend on the lawfulness of the earlier decision to block Olenga’s account, Damaseb concluded.
The board “did not purport merely to continue or ratify the blocking order”, Damaseb said.
“The evidence establishes that it acted after an independent investigation, after repeated but unsuccessful attempts to obtain satisfactory information from Mr Olenga and after considering the recommendations placed before it.”
Olenga informed the High Court in a sworn statement that a notice stating that the BoN had decided the funds in his investment account with Nedbank Namibia should be forfeited to the state was issued in August 2023.
The account had a positive balance of about N$39 million at that stage. With the funds continuing to grow through interest, the account had about N$40.5 million in it in April 2024, the court was also informed.
The BoN exchange control department informed the bank’s board of directors in a memorandum in July 2023 that the bank was notified that Olenga received payments totalling N$70.5 million in Namibian bank accounts in his name from July 2010 to February 2015.
The payments came from Hungary, China and the West Indies, via a company registered in the United States of America.
The BoN board was also informed that, in addition to the funds in his Nedbank investment account, Olenga had about N$39 million in an account at the defunct Small and Medium Enterprises Bank, and that the BoN had that money attached in terms of the Exchange Control Regulations.
Olenga said Nedbank notified him in August 2018 that his accounts with the bank had been restricted and that he should provide the bank with information about the source of his wealth.
The funds in his bank account that were forfeited were not proceeds of any unlawful activities and were not deposited in the account in a manner that contravened Namibia’s foreign exchange regulations, Olenga said as well.
According to the BoN, though, Olenga did not provide satisfactory explanations and supporting documentation for payments made into his account from outside Namibia.
The central bank concluded that Olenga’s investment account with Nedbank Namibia violated the Exchange Control Regulations, and this led to the BoN’s decision to declare the money in the account forfeited to the state.
The evidence showed that Nedbank Namibia was not satisfied with the explanations and documentation about the source of the funds in his account that Olenga provided, Damaseb noted.
Olenga “did not seriously engage with the detailed factual allegations” made by a Nedbank official, and also not with the BoN’s version that he had failed to provide proof of a legitimate source of the funds, Damaseb said.
The Supreme Court ordered that the BoN’s appeal against the High Court’s decision succeeds, and that Olenga’s application should have been dismissed in the High Court.
It also ordered that Olenga should pay the central bank’s legal costs in both courts.
Senior counsel Timothy Bruinders represented the BoN in the appeal.
Olenga was represented by Sisa Namandje.
