Windhoek — A fishing company that stands accused of fishing illegally in Namibian waters, and whose money has now been seized by the Prosecutor General, has asked the court to have its money unfrozen.
Atlantic Ocean Management (Pty) Ltd, says the accusations of illegal fishing levelled against it by Prosecutor General Martha Imalwa are false.
Imalwa laid claim to the money in terms of the Prevention of Criminal Activities Act (POCA), on the basis that the Spanish company was fishing illegally in Namibian waters.
Prosecutor General Imalwa first obtained a preservation order in September last year, which expired on May 20 this year.
She then moved again to obtain a second preservation order on an ex-parte basis (without having to inform the other party).
In the documents before court, the Namibian company's main shareholders say their fishing operations are in Angola and they are only using the Namibian company to repatriate profits to the holding company in Spain, because of the economic problems in Angola that have made it impossible for corporations operating in that country to repatriate foreign currency out of the country.
The two shareholders in the Namibian company, Alberto Iglesias Martinez and Telmo Gonzales Alonso, dragged Imalwa to court, asking that the State "immediately release and pay out the amount of US$886,722.20 (about N$11,4 million) held in account number CFC 8005 259 340, which is in its name, to the account of Fish Spain S.L."
Imalwa is named as first respondent and Bank Windhoek as the second respondent. Bank Windhoek's Walvis Bay branch is the third respondent, while the Bank of Namibia is the fourth respondent.
According to Adv Raymond Heathcote, who acted on behalf of Atlantic Ocean with Adv Japie Jacobs, Imalwa was well aware of and in possession of evidence that the fishing company was indeed a fishing licence holder in Angola and that the money paid into the Bank Windhoek account was derived from legal sources.
Heathcote said Imalwa's application was riddled with material non-disclosures and misrepresentations. He said it is trite law that an applicant in a POCA application, approaching a court on an ex-parte basis, must make full disclosure of all relevant and material facts, and must be bona fide.
"If a breach of this obligation occurs, the inevitable result will be that the order will be set aside, even if relief could be obtained on a subsequent application by the same applicant, and even if the non-disclosure was not wilful or mala fide (in bad faith)", he stressed.
Heathcote further argued that the PG made the material non-disclosure in the first POCA application, which Atlantic Ocean formally opposed. He was adamant that the PG knew she would not have been entitled to obtain a forfeiture order in the first POCA application and "therefore deliberately decided to have the first preservation order expire, simply to obtain a tactical advantage to move for the second preservation order".
According to Heathcote, Imalwa was fully aware of and in possession of evidence that the fishing company was indeed a fishing licence holder in Angola and that the money paid into the Bank Windhoek account was of legal means. Her withholding such crucial evidence from the court was a deliberate ploy to gain the upperhand, Heathcote contended.
He maintained that her approach materially prejudiced the fishing firm, because if the application for preservation in the first POCA was dismissed - and even if Imalwa appealed the dismissal - such an appeal would not have suspended the order and the firm would have been in possession of the funds again.
Heathcote condemned the approach Imalwa took, labelling it "an abuse of process".
He further told the court Imalwa used the provisions of the POCA Act for a purpose never intended by the legislature - by her own admission.
If done wilfully, it amounts to an abuse of process and in such circumstances it was submitted that the court should exercise its discretion to set aside both preservation orders, he argued.
Deputy Judge President reserved judgment until September 6.
The Prosecutor General's Office was represented by Marius Boonzaaier and Jolanda van der Byl from the Office of the Attorney General.