Africa-Press – Namibia. THE Bank of Namibia this week suffered a defeat in the High Court after the court ruled for the return of funds in the investment account of former Congolese army general Francois Tete Olenga.
During the proceedings, the decision to forfeit the monies to the National Revenue Fund was made following a contravention of a regulation under the Exchange Control Regulation, read in conjunction with the conditions outlined in the Manual.
The regulation purportedly contravened is Regulation 2 read with B.4(C)(ii)(a) and C.5(L)(i) of the Manual. These provisions are contained in the 2018 Manual, which came into effect on 7 July 2018.
The court found that the central bank acted outside its legal authority when it forfeited the funds.
On 4 June 2003, before the promulgation of the Financial Intelligence Act 13 of 2012, the applicant, Olenga, opened a savings account with Nedbank under account number 2609141785. During that process, the applicant completed the indemnity form in respect of email and fax. In 2006, Nedbank updated its core banking system, resulting in the conversion of account number 2609141785 to account number 12000118069 on 20 March 2006.
At that point, the takeover balance stood at N$3,295,094.01. Nedbank was instructed not to allow any withdrawals or remittances from the applicant’s accounts without first consulting the FIC for directions. On 31 July 2023, the BoN published a notice and order of forfeiture in the Government Gazette General Notice published on 31 July 2023, wherein it gave notice of a decision to forfeit all money held in the Nedbank Investment Account held in the name of the applicant, Olenga.
The presiding judge over the matter, Deputy Judge President Hosea Angula, said that the discretion to block an account lies with the Board or the Governor as a result of the deleterious effect such action would have on the affected person.
He added that the court held further that the ratification three years later does not bolster the respondents’ case, as the Board’s ratification cannot bestow upon the Director of Exchange Control and Legal Services the authority that he did not possess initially.
The judge further said that the applicant, Olenga, opened his account in 2003, and prior to the existence of the Exchange Control Regulation amended in 2018.
“In my view, a fundamental principle of the rule of law is that legislation should only affect future conduct or issues, and it should not have retrospective application. The basis for the requirement that legislation begins only upon publication is to ensure it is known to the population to whom it applies,” DJP Angula said.
The judge added that it is a common cause that the Manual linked to the updated Exchange Control Regulation Act has not been published in the Government Gazette, and publishing the Manual on the BoN website does not satisfy the requirement of publication, because for a law to be applicable to everyone, it must be published in the Government Gazette.
“The reason for publication in the Government Gazette is simple. This is to ensure that, firstly, it is of general application (Article 22(b) of the Constitution), and secondly, that it is known on which date it comes into force. The date on which the law comes into force is important, as law can only be applied to matters or conduct that takes place in the future and not retrospectively.
Mr Namandje contended that the Manual was ostensibly published solely for banking institutions in 2018, almost 15 years after the applicant opened the relevant bank account,” the judge said.
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