Founding Affidavit (Teckla Lameck)
Founding Affidavit (Teckla Lameck)
Founding Affidavit (Teckla Lameck)
and
________________________________________________________________
FOUNDING AFFIDAVIT
________________________________________________________________
2
I the undersigned,
THE PARTIES
1. I am
Suiderhof, Windhoek;
1.2 the first accused in pending criminal proceedings against the 8th
respondent (“Yang Fan”), the second applicant and I (“the pending the
criminal proceedings”).
1.3 personally acquainted with the facts stated hereinafter unless the contrary
1.4 duly authorized to depose to this affidavit and to bring this application on
(hereinafter “the President”), cited in his official capacity, c/o the Government
Windhoek.
adult female politician, who will be served at the same address as the third
respondent.
in this matter is that the simultaneous and dual appointment by the first
respondent was done ultra vires the provisions of the Namibian Constitution. For
official capacity, on the basis that she is not in law the Minister, a matter in which
of the Namibian Constitution, with principal place of business at the High Court
8. The sixth respondent is YANG FAN, (“Yang Fan”) an adult male whose full and
further particulars are unknown and the third accused in the pending criminal
COMMISSION cited in his official capacity, with his place of business situated
BACKGROUND
10. The sixth respondent, second applicant and I, are respectively the third,
second and first accused in the pending criminal proceedings. We were all
arrested during July 2009. All three of us have been granted bail. The date on
which the criminal trial will commence has not been determined yet.
5
11. Since our arrest, the Prosecutor-General has served various charge sheets
on us. Although they differ materially, I submit that it is not necessary for
purposes of this application, to annex all those charge sheets to this affidavit. I
only annex the last charge sheet which we have received (annexure “TL1”,)
indicating which criminal charges are levelled against us, and in respect of which
charges we would most probably stand trial in due course. Annexure “TL1” gives
a short synopsis of the charges levelled against us and indicates which accused is
summarise the facts on which the charges are based. I submit that some of the
summaries are wholly insufficient as they merely reiterate the wording of the
which the charges are based. Nevertheless, I am advised that this issue will be
taken up by our legal practitioners of record on a separate occasion and should not
12. Despite the fact that the criminal charges levelled against us have changed
from time to time, I verily believe that the facts on which the Prosecutor-General
will rely for purposes of the criminal proceedings, will remain in essence the
same.
13. I am advised and submit that the invalidity of a statute on grounds of its
The Prevention of Organized Crime Act 29 of 2004 (the “POCA Act”), and the
determined on that basis. The subjective position of any party to the enquiry
its provisions; I understand that a statute may not be constitutional vis-à-vis one
ESSENTIAL FACTS
establish our locus standi to seek the relief in issue.In this regard it is important to
note the material facts on which the Prosecutor will rely during the criminal
the facts which would be presented by the Prosecutor-General at the criminal trial,
previously.
Government of Namibia entered into a contract for the supply of x-ray equipment
designed to scan the contents of containers and airline baggage. The supplier of
incorporated under the laws of the People’s Republic of China with its principal
copy of the agreement entered into between MoF and Nuctech is annexed marked
annexure “TL2”.
16. Annexure “TL2” was executed on behalf of Nuctech by Yang Fan who
of the Board of Nuctech. A copy of the power of attorney appears at the end of
annexure “TL2”. Annexure “TL2” was executed on behalf of the MoF by Mr Carl
17. Article 3.1 of annexure “TL2” provides that the purchase price of the x-
ray equipment was USD 55,348,800 of which USD 12,828,800 was to be paid by
the Namibian Government and the balance, USD 42,520,000 was to be advanced
goes on to state that the “Namibian Government funding is to be used solely for
the advance payment for the Nuctech to start the production of the whole contract
goods”.
USD 12,828,800 to MoF. The invoice provided particulars of the account with the
Export Import Bank of China to which this payment was to be made. A copy of
19. On 10 February 2009, Nuctech entered into two further contracts with a
Namibian Close Corporation called Teco Trading CC (“Teko”). One contract was
for Consulting Services (annexed as “TL5”). Both contracts were signed by Rong
20. Under the Agency Agreement Teko agreed to act as Nuctech’s project
agent to develop the project to supply x-ray inspection system to the MoF. The
agreed fee for providing this service was USD 1,600,108. Under the Contract for
21. The appendix to annexure “TL5” states that the consultant’s key services
are:
“a) to facilitate the Namibian Ministry of Finance to make the punctual remittance of
advance payment so as to get the goods ready for the dispatch in time;
22. The members of Teko are the second applicant and I, each of whom holds
registered office of Teko is 8 Van Zyl Street Suiderhof, which is also my home
address.
9
23. On 27 February 2009 MoF sent the sum of USD 12,828,800 to Nuctech by
the Beijing branch of the Export-Import Bank of China. These were the banking
24. On the same date three invoices for USD 1,509,300; USD 1,120,00; and
second applicant. Copies the three invoices referred to are annexed as “TL8”,
to Teko. These transfers originated from Nuctech. The transfers were for USD
1,509,280; USD 1,119,980; and USD 1,600,088.05. These three amounts total
42,061859.47.
26. On 10 April 2009 four further contracts were executed. The first of these
was between Nuctech and Teko. This contract was executed on behalf of Nuctech
by Rong Yonglin, who in the contract styles himself as ”the Chairman of the
10
original Agency Agreement in the manner set out in the Supplement. The
12,828,800, less the amount paid pursuant to the contracts referred to as H-2-09-
0070 and H-2-09-0071 (“TL4” and “TL5”). This left a balance outstanding of
USD 8,599,391.95. This new contract price (USD 12,828,800) is the same
amount as the advance payment that the MoF paid up front pursuant to annexure
“TL2”. The wording in annexure “TL5” is that the amount should be used “solely
for the advance payment for the seller (Nuctech) to start the production of the
28. The second, third and fourth contracts which were executed on 10 April
2009 are also contracts for consulting service. Each of these contracts is between
Nuctech and Teko. Each contract is signed by me on behalf of Teko. The third
and fourth contracts have been signed on behalf of Nuctech by its Director
General Manager, Li Zhijun. Each of these three contracts relate to three different
‘lots’ as described in the contract between the Ministry of Finance and the
Nuctech. Annexure “TL2” provides for the delivery of 13 x-ray scanning systems
in three lots (Article 5). The appendix to each of these three contracts is expressed
11
29. I must point out and emphasize that the above factual background is by no
means a detailed factual scenario of all the contracts which Teko entered into. I
Prosecutor-General. We reserve our rights in full to deal with all the detailed facts
from Nuctech, portions of which were subsequently paid to Yang Fan, second
applicant and I, were received by Teko prior to 5 May 2009. Thus had it not been
for the retrospective implementation of the POCA Act, all acts done by Teko,
the time, not with reference to legislation which had no enforceable status at the
time. I refer to these background facts simply to illustrate fully below, the
30. Having given a general background I now turn to the relief claimed in the
Notice of Motion. Without repeating the specific relief claimed, I point out that
this constitutional attack consists of basically three issues. The first is that it is our
31. Thus this application also concerns her ultra vires and unconstitutional
Minister of Justice. Both appointments are ultra vires. Secondly, I address the
unconstitutionality of various provisions in the POCA Act, and lastly I refer to the
Act.
32. On 24 May 1995, the first respondent purportedly appointed the second
more specifically Articles 86 and 87, read with Article 35 (and Article 32(1) and
(3)).
33. I point out that the Constitution in Articles 32(1) and (3) specifically
requires Cabinet shall only consist of those officials mentioned in the Article
follows:
34.1 Article 86
34.2 Article 87
the Government, with very specific constitutional duties apart from those of a
Minister. Indeed, those duties may require him or her to take action or initiate
inquiries or steps against a Minister, including the Minster of Justice, the Cabinet
may not, by the very wording of the Constitution, be a member of Cabinet, and
make decisions (i.e. by consensus and/or majority vote), the legality of such
respondents’ appointment.
38. In the event moreover of the Minister of Justice’s own vote being
advise herself.
40. Before I deal with Mrs Ithana’s purported action in terms of section 103 of
the POCA Act, to publish the date of commencement of the POCA Act in
40.2 In terms of Article 63(1) of the Namibian Constitution only the National
Assembly shall have the power, subject to the Namibian Constitution, to
make and repeal laws for the peace, order and good governance of the
country, and in the best interest of the people of Namibia;
40.3 Article 63(1) of the Namibian Constitution provides that every Bill passed
by Parliament shall, in order to acquire the status of an Act of Parliament,
be signed by the President of the Republic of Namibia, whereafter it must
be published in the Government Gazette;
41. I submit that it is clear from the provisions of the Constitution, the
principle of separation of powers, the rule of law and the supremacy clause in the
powers – be that to make laws or repeal laws or suspend the provisions of any
part.
determine on which day an Act should commence. Such determination (i.e. of the
mentioned in the said Act, provided that such person has been duly appointed as
envisaged in the Namibian Constitution. I respectfully submit that given the ultra
Justice of the Government of Namibia, her purported act in terms of which she
16
Minister of Justice is ultra vires section 103 of the POCA Act itself, as well as
ultra vires Articles 44 read with Article 63(1) of the Namibian Constitution.
Hence the POCA Act never commenced, and all criminal charges levelled against
the second applicant and I in terms of the POCA Act are null and void.
43. I submit that, even if the commencement date of the POCA Act was
44. I refer to Articles 12,16,21,22 and 25 of the Constitution, and submit that:
(a) “fair and public hearing” as envisaged in Article 12(1)(a) does not only refer to
procedural fairness but also to substantive fairness;
(c) More importantly, Article 12(3) pertinently prohibits three separate kinds of State
abridgment of an accused’s rights. Firstly, the retrospective enforcement of a
“criminal offence” is prohibited. Secondly, the retrospective intervention in
relation to “any act or omission”, is prohibited, and thirdly, even if certain acts
constituted a criminal offence when those acts were committed, the penalty in
respect of such committed acts may not exceed the applicable penalty at the time
the offence was committed.”
lawfully conducted at the time and in respect of which a person became entitled to
illegal. The property or rights, so lawfully obtained, may also not become subject
Legislation having such an effect, will clearly infringe the constitutional rights
referred to above.
47. Firstly, section 1 of the POCA Act contains the following definitions:
Any person who knows or ought reasonably to have known that property is or
forms part of proceeds of unlawful activities and-
property and who knows or ought reasonably to have known that it is or forms
laundering.
Offences of corporations
52. I submit that the phrase “at any time before or after the commencement of
terms of sections 4 and 6 of the POCA Act is clearly ultra vires the provisions of
Article 12(3) of the Constitution. I submit this for the following reasons:
53. Both sections 4 and 6 of the POCA Act, which sections create the offence
1 of the POCA Act. In turn, the concept “unlawful activity” refers to two kinds of
refers to conduct which does not constitute an offence, but merely contravenes
activity” the two kinds of conduct, which includes previous conduct which did not
new offence of money laundering, even in circumstances where the then lawful
activity” do not stop there. In respect of certain conduct (which did not previously
constitute an offence) such conduct is now also subject to the penalty provision
conduct, since (5 May 2009), now also constitutes an offence as envisaged in the
penalties by far.
56. Moreover, conduct which was lawful prior to the commencement of the
POCA Act, being conduct which were executed in terms of a persons Article
21(1)(j) right to trade, and lawfully entitled that person to obtain property as
conduct with retrospective effect. Not leaving matters there, the retrospective
the various provision contained in the POCA Act dealing with restraint orders,
the pending criminal proceedings, I submit that it is abundantly clear that the
paid to us or accrued to us prior to 5 May 2009. Had it not been for the
“unlawful activity” contained in the POCA Act itself, as well as the various
sections which contain the phrases “proceeds of unlawful activity” and “unlawful
activity” those provisions would not have been applicable to us. Accordingly,
Constitution, and the proceeds which fell due to us, or accrued to us in respect of
transactions which occurred prior to 5 May 2009, are, by virtue of the definitions
58. Even if our conduct constituted a criminal offence (other than the offences
created by the POCA Act itself) at the time we entered into the agreements, such
offences would not have been subject to the high penalties referred to in the
POCA Act.
22
59. I submit that the word “penalty” used in Article 12(3) of the Constitution
also includes the penalties referred to in Chapters 5 and 6 of the POCA Act.
criminalizing activity, which was not an offence at the time it was committed, and
of the Namibian Constitution subject to confiscation. Thus the same lawful acts
which created property rights previously, now constitute not only criminal
offences, but the very same property, obtained through legal acts, may now also
that all these retrospective provisions were enacted while not a single reference is
made (in the POCA Act) to Article 22(b) of the Namibian Constitution.
62. Apart from the aforesaid reasons why the various sections referred to in
the notice of motion are unconstitutional, I submit that section 1(5) of the POCA
63. I accordingly respectfully submit that the applicants are entitled to the
law is paramount and not negotiable. Indeed, its status is clear form Article 1
itself. The rule of law requires that all public power must be source-based, which
means that the State, when making legislation, should exercise public powers
within the boundaries of the law. As a point of departure, every person has a right
Constitution. Of course the State has the power to legislate but, that power has a
limitation. That limitation is the Constitution. Article 12 provides that “in the
against them, all persons shall be entitled to a fair and public hearing …”.
Further, Article 12(3) provides that “no persons shall be tried or convicted for
any criminal offence or on account of any act or omission which did not
65. Underpinning the rule of law is the principle of legality. Conduct cannot be seen
difficult for the ordinary subject to understand exactly what is expected of him or
her. Put most simply, the inquiry is whether the reasonable person, capable of
conduct may only become a crime once the court has interpreted it. I submit that,
if that is the case, the constitutional principles (i.e. of procedural and substantial
of the Constitution; and secondly, the crime will only become clear once the court
has interpreted the legislation. If that is the case, the provisions of Article 12(3) of
the Constitution are transgressed because the conduct did not constitute “a
criminal offence at the time that it was committed”. It only becomes a crime once
the court has interpreted a vague piece of legislation. When a section in any
of crimes”.
(a) money or any gift, loan, fee, reward, commission, valuable security or property
or interest in property of any description, movable or immovable;
(b) any office, dignity, employment, contract of employment or services and any
agreement to give employment or render services in any capacity;
(c) any payment, release, discharge or liquidation of any loan, obligation or other
liability, whether in whole or in part;
(d) any valuable consideration or benefit of any kind, any discount, commission,
rebate, bonus, deduction or percentage;
(e) any forbearance to demand any money or money's worth or valuable thing;
(f) any service or favour, including protection from any penalty or disability
incurred or apprehended or from any action or proceedings of a disciplinary, civil
or criminal nature, wether or not already instituted, and including the exercise or
the forbearance from the exercise of any right or any official power or duty;
(g) any right or privilege;
(h) any aid, vote, consent or influence, or any pretended aid, vote, consent or
influence;
(i) any offer, undertaking or promise, whether conditional or unconditional, of any
gratification within the meaning of any of the preceding paragraphs;
70. I also refer to, section 33, 36, 42 and 46 of the Anti-Corruption Act, and
point out that the second applicant and I will have to stand trial in respect of those
A public officer commits an offence who knowingly and corruptly, and otherwise
than as a member of a registered joint stock company consisting of more than 20
persons, acquires or holds, directly or indirectly, a private interest in any contract,
agreement or investment emanating from or connected with the public body on or
in which he or she serves as a member or as an employee or which is made on
account of the public body.”
A person commits an offence who corruptly offers or gives or agrees to give any
gratification to any other person whether for the benefit of that person or any
other person, as an inducement or a reward for giving assistance or using
influence, or having given assistance or used influence, in-
74. I refer to the definition of “corruptly” and point out that the unlimited and
uncertain scope of the definition is apparent from the fact that many thousands of
archives. They may not even be in writing. But when the Anti-Corruption Act
became of full force and effect, it is not only the contravention of those rules
“spirit” of those rules may constitute a crime. I submit that the definitions of
that:
74.1 The said definitions cannot be said to be reasonable, as they are so vague
and wide as to include within their sweep, not only conduct which the
Constitution empowers the State to suppress, but the same definitions also
punish the lawful exercise of other fundamental rights and freedoms
guaranteed by the Constitution.
74.2 The wide sweep of these definitions leaves no breathing space for other
fundamental rights to survive, in that the definitions do not define the
crime they endeavour to create with a sufficient narrow specificity.
75. The sweep of the definitions is so arbitrary, uncertain and wide that the
scope of the definition, and therefore the act of giving certainty to the definition,
may only be determined once the court interprets the section. By then the criminal
proceedings are finalized and it will be impossible to prepare for the criminal trial.
The definitions leave an accused uncertain as to the conduct it prohibits, and they
leave judicial officers free to decide without any legal standard compliant with the
77. In all the above circumstances I submit that the court should grant the
………………………………………
TECKLA NANDJILA LAMECK
I hereby declare that the deponent has sworn to and signed this statement in my presence
at a on the day of 2011 and he declared as follows: that the
facts herein contained fall within his personal knowledge and that he understands the
contents hereof; that he has no objection to taking the oath; that he regards the oath as
binding on his conscience and has declared as follows:
“I swear that the contents of this sworn affidavit are true and correct, so help me God.”
....................................................
COMMISSIONER OF OATHS
FULL NAMES:
CAPACITY:
ADDRESS: