Staff Reporter
COENRAAD Botha and his wife, Charlotte Murove, have brought a collateral challenge as an urgent application before the High Court, seeking a court order for the return of their personal property as well as computer hardware, some of which contains millions in cryptocurrency that was confiscated by the police.
The couple were arrested on 11 March 2024 at the Buitepos border while on their way to South Africa. They were charged with contravening the Banking Institutions Act, fraud, 31 counts of money laundering, and conducting a Ponzi scheme. This occurred after they were allegedly paid a total amount of N$163 million from investors and members of the public, despite not being authorised to receive any deposits or investments from the public.
“The purpose of this application is primarily to seek a rule nisi coupled with an interim interdict in the form of an immediate collateral challenge. The immediate collateral challenge will be followed by the main collateral challenge (in the form of a review simultaneously instituted) against the coercive action by the First Respondent (Inspector Joel Shikongo) and Second Respondent (Warrant Officer Erwin Serogwe), when they searched me, my wife, as well as our minor son and the vehicle referred to herein and seized, indiscriminately so, various properties belonging to us,” Botha said in his founding affidavit.
In the application, Botha recounted how they were confronted at the border post, detained for close to four hours, and had their personal property seized.
“We were informed that a team of investigating officers, including Erwin Serogwe (Second Respondent), was coming to the border to take the matter further. We were kept in effective detention, not being free to move. At around 12:30, the team from Windhoek arrived and immediately arrested us. The two police officers (First and Second Respondents) immediately demanded that we provide them with all laptops, cell phones, flash drives, and hard drives, including a Ledger NANO Hardware Cold Wallet, which contains digital assets worth millions, amongst other items. There was no application of mind by the two as to the necessity of seizure or as to whether or not the requirements of law were met. The search and seizure were arbitrary,” Botha claimed.
He added that it is a notorious fact that, prior to the constitutional democracy in Namibia, there were prevalent cases of unlawful intrusion of privacy and warrantless searches.
“This is a dark and horrific legacy we must all repudiate. It is for that reason that, in terms of Article 13 of the Namibian Constitution, it is provided that no person shall be subjected to interference with the privacy of their homes, correspondence, or communications, except in accordance with law and as is necessary in a democratic society in given cases,” Botha said.
Furthermore, Botha added that the searches and seizures were ultra vires Section 7 of the Banking Institutions Act, which provides that in the case of contravening provisions of the Banking Institutions Act, the investigation of such contravention could only have been carried out by an authorised officer who, if the Bank of Namibia (BON) had reason to believe that there was a contravention (in this case BON had no such belief), had authorised and requested such an officer to exercise the power of search and investigation at any time without prior notice, as provided for under Section 7(4)(a) to (c) of the Banking Institutions Act.
