The judge noted “corruption appears to have a brain and
unparalleled survival instincts” in these two State agencies.
Justice Pisirayi Kwenda expressed his disquiet over the
conduct of the two offices, calling for tight measures to enforce court orders.
Delays in execution and tipping off the person affected
could allow those affected to sell off assets and dissipate the proceeds.
Justice Kwenda was ruling against an urgent chamber
application by former Cottco boss Pious Manamike for stay of execution of a
temporary seizure order he issued on September 21 last year.
The order was issued in terms of the Money Landing and
Proceeds of Crime Act pending the determination of an application for
rescission of judgment filed under case no HACC 33/22.
Manamike wanted an order to stop ZACC from executing the
seizure order issued by the judge.
He was arrested in June last alongside the company’s
development marketing manager Macmore Njanji on allegations of abusing Cottco
resources.
Following their initial appearance in court, the State
obtained a High Court order to seize their property pending the finalisation of
their case.
What shocked the court in this case was that ZACC had not
done anything to enforce the seizure order since it was issued in September
last year until Manamike and his company, Eternal Resources Private Limited,
approached the same court on November 22 seeking to block the seizure.
During the hearing, Justice Kwenda noted that after he
granted the seizure order, officials in the office of the Prosecutor General
and ZACC charged with executing the order appeared to have missed the essence
and purpose of the seizure order.
He criticised the two offices for defeating the course of
justice by alerting Manamike about the court decision against him.
In appropriate circumstances, the seizure process has to be
discreet.
“Instead of promptly giving effect to the order to avoid
dissipation, someone in one or the other of those offices notified the
applicants who became aware of the order granted on the 22nd November 2022,”
said Justice Kwenda.
“Such conduct defeats the whole purpose of approaching the
court for an order without alerting the respondent.
“It is inconsistent with duty which the law imposes on
public officers who administer ex parte seizure orders granted because the
court is satisfied that the property specified in the application is reasonably
believed to be tainted property or terrorist property may be dissipated or
alienated if the order is not granted.”
Justice Kwenda said informing the respondent of the order
and waiting for two months before searching for and seizing the property was an
invitation to Manamike to commit the perverse conduct which is contemplated in
the rules of the court as well as the Money Laundering and Proceeds of Crime
Act.
He then registered his concern with the two state agencies
through the registrar of the High Court, without reservations.
“The registrar of this court is, therefore, requested to
place this judgment before the chairperson of ZACC and the Prosecutor General
who are invited to note the court’s concern and may consider putting in place
tighter mechanisms to monitor the management of court processes and
implementation of court orders issued in terms of the Money Laundering and
Proceeds of Crime Act,” he said.
In his application, Manamike sought to overturn the seizure
order arguing it was erroneously and illegally obtained because he had not been
charged with any crime, therefore, there was no legal basis for a seizure order
warranted in terms of the law.
But the State opposed the application insisting the order
was properly procured and validly issued even in the absence of any charges
being preferred against Manamike’s company as this was possible in terms of the
provisions of the Money Laundering and Proceeds of Crime Act.
The court agreed with the State that the purpose of a
seizure order was to authorise the search for and seizure of specified property
that is the subject of an interdict, or property which the court reasonably
believed was tainted or terrorist property.
Justice Kwenda said it was not a condition precedent for a
seizure order that Manamike should be formally charged with the suspected
crime.
In the end, he ruled that staying execution would be
tantamount to staying the criminal investigation which necessitated the
seizure.
“This court may not order a stay of execution in aid of
crime,” said Justice Kwenda, adding that the seizure order was temporary and
should not be confused with confiscation.
Depending on the outcome of the investigation or
prosecution, the property can still be returned to the applicants, said Justice
Kwenda while dismissing Manamike’s application for lacking merit. Herald
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