Prosecutor-General v Kennedy (1) (POCA 2 of 2015) [2017] NAHCMD 26 (6 February 2017)

Prosecutor-General v Kennedy (1) (POCA 2 of 2015) [2017] NAHCMD 26 (6 February 2017)

The applicant failed to prove on a balance of probabilities that the motor vehicle was an instrumentality in the commission of kidnapping or rape. The property was merely incidental to the offences, not instrumental. There was no reasonably direct link between the property and the commission of the offences as required by law.

Citation
[2017] NAHCMD 26
Parties
Applicant: The Prosecutor-General; Respondent: Jaco Marius Kennedy
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
6 February 2017
Case Number
POCA 2 of 2015
Procedural Posture
Forfeiture Application Under POCA / Judgment After Opposed Motion
Outcome
Application dismissed
Legal Topics
Forfeiture of Property, Instrumentality of Crime, Kidnapping, Rape, POCA Requirements, Balance of Probabilities, Sanctions for Non Compliance
Source Language
English
Criminal Law Asset Forfeiture Civil Procedure Forfeiture of Property Instrumentality of Crime Kidnapping Rape POCA Requirements +2 more

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Parties

The Prosecutor-General

Applicant

Jaco Marius Kennedy

Respondent

Procedural Posture

Forfeiture Application Under POCA / Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the property (motor vehicle) was an instrumentality in the commission of kidnapping and rape under POCA
  2. 2 Whether the applicant proved on a balance of probabilities that the property was concerned in the commission of the offences

Ratio Decidendi

The applicant failed to prove on a balance of probabilities that the motor vehicle was an instrumentality in the commission of kidnapping or rape. The property was merely incidental to the offences, not instrumental. There was no reasonably direct link between the property and the commission of the offences as required by law.

Court Disposition

Application dismissed

Orders

  • The application is dismissed.
  • The applicant is ordered to pay two-thirds (2/3) of the respondent’s taxed costs. The reduction of one-third (1/3) of the costs serves as a sanction against the legal practitioners for the respondent for flagrant non-compliance with the Rules of this Court.