Staff Reporter
THE Bank of Namibia (BoN) has filed a notice that it will be appealing to the Supreme Court to set aside a judgment in the High Court which overturned its decision to forfeit nearly N$40 million from a Namibian investment account belonging to retired Democratic Republic of Congo (DRC) army general Francois Tete Olenga.
In the notice, the appellants — namely, the Bank of Namibia, Leonie Dunn, and Bryan Eiseb — appealed to the Supreme Court to set aside the judgment and orders of the High Court, with the respondents including Francois Tete Olenga, Nedbank Namibia, as well as the Director of the Intelligence Centre.
Deputy Judge President Hannelie Prinsloo in her judgment added that Bryan Eiseb, during August 2020, as the Director of Exchange Control and Legal Services, overstepped, as he was not authorized to block Olenga’s account and that these powers rested in the hands of the Board or Governor due to the serious impact such orders have on affected individuals.
On 5 December 2019, the FIC notified Nedbank to withhold the release of Olenga’s funds into his lawyer’s account. This decision came as a result of the fact that the Financial Intelligence Centre was not satisfied that the requirements of the Financial Intelligence Act concerning the source of the funds were fulfilled. Additionally, the lack of pertinent bank statements showing that the specified amounts came from Breadfield’s bank account indicated that the necessary due diligence required by the FIA was not achieved.
On 10 August 2020, Eiseb, in his role as Director of Exchange Control and Legal Services, blocked the applicant’s account 12990134209 by imposing an additional restriction under Regulation 22A(1)(b) of the Regulations.
“As pointed out above, what the Minister of Finance delegated to BoN were powers and functions to be performed by the Board or the Governor, and neither of these entities can sub-delegate it beyond these two categories. Hence, there are no provisions in either Act 8 of 1990 or Act 1 of 2020 which allow BoN to vary the mandate conveyed to them in the delegation from the Minister of Finance unilaterally. The Supreme Court made it clear that the authority to block an account rests solely with the Board or the Governor due to the potentially harmful impact such an action could have on the individual involved,” the judge said.
Prinsloo added that it seemed the Board must have been aware of this fact, and that this is substantiated by minutes in the written round-robin resolution approved during the period 28 July 2023 and 1 August 2023.
“To the extent it may be necessary, the Board ratifies the actions of the Director: Exchange Control to block the withdrawal of the funds held in the Nedbank Account 1200253948 in favour of Francois Tete Olenga as per his letter dated 10 August 2020,” the judge quoted the minutes.
Prinsloo said that in her view, the ratification three years later does not strengthen the Bank of Namibia’s case, as the Board’s ratification cannot grant Eiseb the authority he did not originally have.
“The point taken by the applicant regarding Mr Eiseb’s authority to block his account is therefore a good one and must be upheld, and the blocking order authorised by Mr Eiseb is set aside. It is clear from the resolution that Ms Dunn (as Deputy Governor) was nominated by the Board to implement the Board’s decision when she signed the order. There is no independent exercise of discretion on her part,” the judge said.
She concluded that the costs are granted against the Bank of Namibia, Leonie Dunn and Bryan Eiseb, which costs are limited to the costs of one legal practitioner, namely Sisa Namandje, who represented Olenga in the matter.
