Inmate battles PG over Tiida

29 March 2018 | Justice

An inmate is seeking to interdict Prosecutor-General Martha Imalwa from auctioning his forfeited Nissan Tiida, pending an appeal against his prison sentence for dealing in drugs and alcohol.

Josef Nicolaas Isaack, who pleaded guilty, was fined N$4 000, or in default of payment, one year imprisonment for the illegal sales of liquor and three years' imprisonment for dealing in drugs, but his appeal is pending against his sentence.

He has now submitted an application against an order made by Magistrate Mwilima Mwilima on 13 September 2016 to have his Nissan Tiida forfeited to the state.

Isaack is seeking interim order against the auctioning of his vehicle.

Isaack was given until yesterday to submit a replying affidavit to the heads of argument submitted by the PG, the safety minister and the Maltahöhe police station commander, who are also respondents.

Freddy Kadhila, who is appearing on behalf of the respondents, submitted in his heads of arguments that Isaack did not satisfy the requirements for obtaining an interim order.

He argued that the interim interdict must show a prima facie right, even if it is open to some doubt, and a reasonable apprehension of irreparable and imminent harm to this right if an interdict is not granted.

He said Isaack must further show that the balance of convenience must favour the granting of an interdict and that he must have no other remedy.

Kadhila further argued that there is no application before the court as contemplated in terms of the rules.

According to him the applicant's founding statement did not acknowledge that he knows and understands the contents of the declaration.

It also does not state the manner, place and date.

“The commissioner of oaths has also not signed the sworn statement and has not stated the designation for which he holds the office,” Kadhila maintains.

He argues there is no sworn statement before court, but merely a bundle of documents.

“On the basis of these defects, the application is liable to be struck from the roll with an appropriate costs order,” Kadhila argued.

Isaack is appealing against the forfeiture order on the grounds that the magistrate erred in both facts and law.

“I am afraid that the state will auction my motor vehicle without waiting for the outcome of the appeal.”

Isaack said the vehicle is in fact still bonded on his grandmother's name, who conditionally lent him the money to purchase it.

Isaack was together with Tjilip Boois, Adam Swartbooi and Salmon Richter found guilty on the counts of dealing in drugs and liquor without licence.


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