Sostenus Wilherm
The High Court of Namibia has dismissed an application by businessman Coenraad Barend Nolte Botha, CBI Exchange Namibia and two other applicants challenging the warrantless search and seizure of their property by the Namibian Police.
Judge Thomas Masuku delivered the judgment on 5 August 2026, bringing the matter to an end after more than two years of litigation.
The applicants were arrested at the Buitepos border post on 11 March 2024 while travelling to South Africa. Police searched them and their vehicle and seized electronic devices, financial records, a cryptocurrency hardware wallet and other property.
Botha and his co-applicants argued that the search was unlawful because the police did not have a warrant and had exceeded their legal powers. They also alleged that their constitutional right to privacy had been violated.
The police, however, maintained that the search was connected to an ongoing criminal investigation and that the applicants had consented to the search. The investigators were probing alleged contraventions of the Banking Institutions Act, a suspected Ponzi scheme and fraud involving N$163 million. The applicants were facing 64 charges at the time of the proceedings.
Masuku found that the police were competent to investigate the alleged offences, rejecting the applicants’ argument that only authorised Bank of Namibia officials could conduct the investigation.
The court further found that the seized electronic and financial items could reasonably contain evidence relevant to the investigation, including transaction records, communications and cryptocurrency-related information.
A key issue was whether the applicants had consented to the search. While Botha denied giving consent, the two officers who conducted the search confirmed under oath that consent had been obtained after the search was explained.
Because the matter was brought as a final application on affidavit and the competing versions created a factual dispute, the court accepted the police version for purposes of determining the application. Masuku therefore found that the warrantless search was permitted under section 22(a) of the Criminal Procedure Act.
The judge nevertheless stressed that the ruling did not mean that an arrest automatically amounts to consent, nor did it give police unlimited authority to access privileged or private information contained on seized devices.
The court also declined to order the return of Botha and the third applicant’s passports, noting that the documents were being held under a bail condition. The court said any attempt to have the passports returned should be made through an application to vary the bail conditions.
The application was dismissed, the rule nisi issued in May 2024 was discharged, and the matter was removed from the roll and finalised. Each party was ordered to bear its own costs.
