Namibian liquidators, David John Bruni and Ian Robert McLaren, have sued the Inspector General of the Namibian Police and the Minister of Safety and Security.
The two plaintiffs are accusing the Namibian Minister and Head of Police of failing to comply with the court order demanding the Namibian Police to return a consignment of uncut diamonds worth 9.4 million Namibian Dollars.
Bruni and McLaren were appointed as liquidators of Bret Investment, a company contracted to mine the diamonds.
In 2018, a dispute involving the ownership of certain parcel(s) of diamonds arose between Jacob Abramczyk and Bret Investments, which was in liquidation.
Abramczyk lodged a legal application against Bret Investments in the High Court, claiming ownership and delivery of the diamonds from Bret Investments.
At the time of the aforesaid dispute, the applicants placed the diamonds in the possession of the Inspector General’s Protected Resources Unit for custody, control, and safekeeping thereof, pending the resolution of the dispute under case number A 73/2010.
In March 2022, the applicants, Bruni and McLaren, as liquidators of Bret Investments, instituted proceedings seeking an order directing the Inspector General to hand over the diamonds.
The action was settled between the parties, and a court order was issued directing and ordering the Inspector General to forthwith hand over the diamonds to the applicants (Bruni and McLaren).
The aforesaid was subject to the condition that the third respondent (the Diamond Commissioner) issue a permit pursuant to Section 29(1) of the Diamond Act, Act No. 13 of 1999, a condition which was complied with on 15 August 2024.
Riëtte Hite, the lawyer representing Bruni and McLaren in the matter, questioned why the Inspector General of the Namibian Police agreed to an order directing that he hand over the diamonds to the applicants upon a condition being met.
“As said above, the Inspector General was a party to the agreement reached between the applicants and respondents in the action proceedings. Despite pleading in the action proceedings that the diamonds form part of a police investigation, the Inspector General still agreed to the content of the court order.”
“The Inspector General cannot now suddenly rely on a purported defence to the action (which I would, with respect, call an excuse) not to hand over the diamonds. It is trite that a court order is enforceable until set aside by a court of competent jurisdiction. Until that is done, the court order must be complied with, even if it may be wrong; there is a presumption that the judgment is correct,” Hite argued.
In response, the lawyer representing the first and second respondents in the matter, namely the Inspector General and the Minister of Safety and Security, Lindrowski Tibinyane, argued that the diamonds are part of criminal investigations, and if the diamonds were to be handed over to unauthorized persons, such actions would hamper the arms of justice.
He added that these diamonds are to be used as evidence in criminal proceedings which the Prosecutor General intends to institute once the investigations are complete.
Tibinyane furthermore said that the owners of the said diamonds are Larissa Investments Namibia, Toscanini Diamond Resources (Pty) Ltd, who were issued an Exclusive Prospecting License (EPL No. 2696) by the Ministry of Mines and Energy.
“The Inspector General and the Minister of Safety and Security have evidence that revealed that Larissa Investments Nambib Toscanini Diamond Resources (Pty) Ltd signed a contract with Bret Investments (Pty) Ltd (under liquidation) to do the mining on their behalf, provided that they would do it in compliance with Namibian law.
The First and Second Respondents have affidavits or documents from individuals, namely Michael Francois Van Der Merwe (Bret Investments (Pty) Ltd), the seller, and Jacob Abramczyk, the buyer, where admissions are made that an illicit diamond deal was done in contravention of the Diamond Act 13/1999,” Tibinyane said.
He added that the police case docket confirms the illegal dealing of the unpolished diamonds in question, in that it appears the deal was conducted without the EPL owners’, Larissa Investments (Nambib Toscanini), permission, which is contrary to Section 31(1) of the Diamond Act, 13/1999.
“The Act does not authorize the contractor to sell unpolished diamonds unless the contractor is an Authorized Representative of the EPL holder in terms of Section 43 of the Diamond Act, 13/1999 and is in possession of the Certificate of Registration issued by the Diamond Commissioner,” Tibinyane said.