WINDHOEK – Local forex trader Michael Amushelelo has filed an urgent application in the High Court for the search and seizure warrants authorised by a Windhoek magistrate to be reviewed and set aside.
The warrants were used to seize computers, motor vehicles, cellular phones, documents and other electronic devices from his office and residence.

Amushelelo, together with nine other applicants, comprising eight of his businesses and his mother, cited the magistrate that issued the warrants, the prosecutor-general, the Bank of Namibia, the director of the Financial Intelligence Centre, the inspector-general of the Namibian Police and the commanding officer of the Anti-Money Laundering Sub-Division of the Namibian Police as respondents in the application.

According to Amushelelo’s founding affidavit, the Namibian Constitution guarantees the right to fair and reasonable public actions, as well as the right to carry on business and the right to privacy, all of which he has been denied upon his arrest. 

Amushelelo and his associate Gregory Cloete were recently arrested and released after paying bail of N$35 000 each. They are charged with fraud and money laundering. 

In court papers, Amushelelo further states that the search and seizure of his goods have left his business entities paralysed as almost every important personal and business document and about six motor vehicles have been seized on the basis of the warrants. 

“All computers with critical personal and business information were also seized,” he said.
According to Amushelelo, the members of the police conducting the search have virtually ransacked the premises as they laid their hands on any document, item and goods and effects indiscriminately.

He also said he was not provided with an inventory list of the items that were taken.  He further avers that the warrants issued are unlawful as they are non-specific, non-concise and ambiguous.  According to him, the magistrate who issued the warrants did not apply his mind at all and just rubberstamped a warrant that was compiled by the police who in any case are not permitted to conduct investigations into contraventions of the Banking Act unless instructed by an authorised official of the Bank of Namibia to do so.

He claims the investigation against him stemmed from allegations that he was conducting banking business in contravention of the Banking Act. 

The other charges of fraud and Prevention of Organised Crime Act (POCA) offences are consequential and stem from the allegations of unlawful crimes.

Amushelelo stated that the legislature made a conscious and deliberate decision to prescribe how investigations in respect of alleged contravention of the Banking Act are to be conducted.
He said that the Banking Act prescribes that the Bank of Namibia must, in writing, authorise an officer of the bank at any time and without prior notice to enter premises occupied or used for purposes of unlawful banking business. 

The Act further makes provision for such official to search for any books, records, statements and forth and seize or make copies of documents and to suspend businesses on notice and close a business upon a criminal conviction.

According to Amushelelo, it is clear that members of the police have no business to conduct the special investigation in cases of alleged contravention of the Banking Act and can only assist when a banking official authorised in writing asks for their assistance.

“It is for this reason that the Namibian Police Force acted unlawfully when they approached the magistrate to obtain search warrants for purposes of investigating alleged contraventions of the Banking Act,” he stressed.