BoN, Crypto bosses clash again

CRYPTOCURRENCY boss Coenie Botha and his cryptocurrency trading company, CBI Exchange Namibia (Pty) Ltd have lodged an urgent application with the high court in which they seek to compel the Bank of Namibia (BoN) to comply with a court order made on March 18.

The order was subsequent to CBI having had sued BoN for N$500 000 per day for loss of income after the later had frozen the accounts of CBI, locking in millions of dollars in investment funds from at least 4000 Namibians.

The urgent application to unfreeze that accounts on March 18 by CBI only resulted in the High Court ordering that only operational funds should be made available while investor funds remained locked in pending an investigation in terms of Section 10 of the Bank of Namibia Act, Business Express understands

CBI now claims that BoN is now playing “hide and seek” and appears not to want to comply with the order, prompting them to seek urgent redress from the High Court.

“After several engagements between the parties, including the Respondents being furnished unnecessarily with detailed information (and despite all reasonable efforts on the part of the Applicant to avoid litigation) it became clear that the Respondents (BoN) were determined to frustrate and obstruct the implementation of the Court Order to the prejudice of and harm on the Applicant. Hence, the Applicant after its demand of 17 May 2022, was not heeded to, and after the meeting of 20 May 2022 between the parties did not bear any fruit, decided to bring this application,” partially reads CBI’s heads of argument filed last week.

Among others, CBI’s latest application seeks an order directing the third and fourth respondents, and to the extent necessary First and Second Respondents, to release or cause to be released funds from the Applicant’s bank account with the third respondent for the payment by the applicant of its of 5 day-to-day expenses for the period March 2022 to May 2022 within 2 (two) days of the Court Order. 3.

They also seek an order interdicting and restraining the first and second respondents from obstructing in any way the implementation of the court order dated 18 March 2022 and from imposing condition upon the release by Bank Windhoek of funds to the applicant for payment of the necessary day-to-day expenses of CBI as directed by Court.

Furthermore, they seek that the third and fourth respondents are directed pending the finalization of the case instituted by the applicant under case number HC-MD-CIV-ACT-OTH- 2022/00097 to release to the applicant such other monthly amounts constituting its necessary day-to-day expenses as they may be from time to time communicated to it by the applicant and/or the applicant’s legal practitioner.

The first and second respondent are BoN and an official from BoN while third and fourth responded are Bank Windhoek and an official from Bank Windhoek.

“We submit that this application, brought in the context and in the circumstances were allegations of continuous non-compliance of the Court Order are being made, is urgent as per the dictates of the rule of law and because the Applicant cannot obtain obviously substantial redress at the hearing in due course,” further reads CBI’s application.

In response, BoN has highlighted that the applicant does so on the basis of an incorrect interpretation of a court order and without satisfying the requirements for an urgent application, or a final interdict.

“The applicant, based on its incorrect understanding of the court order of 18 March 2022 also failed to make out a case on the merits that the expenses that it seeks to have paid do in fact constitute necessary day-to-day expenses as contemplated in the court order.

“Generally, the application suffers from a major flaw – it contains mainly conclusions which are not supported by fact or evidence. For this reason alone, the application should fail,” argues BoN in their response.

In part, BoN goes on to argue that the previous application was not for an order for payment of expenses specifically identified by the applicant.

“The applicant wanted the freeze on its account uplifted. Although the applicant listed some expenses, it did not provide any supporting documents to substantiate the expenses or to satisfy the court that those are the applicant’s necessary day-to-day expenses. The court did not hear the merits of the application, but ordered the respondents to release payment of the necessary day-to-day expenses upon being informed by the respondents’ counsel that the first and second respondents would be willing to partially lift the freeze to allow for payments of necessary day-to-day expenses to be released provided that supporting vouchers are provided to substantiate the expenses. It is in this context the court order was made.

“The order does not identify the expenses that must be paid. It also does not refer to the list provided. Instead, the court left it to the second and fourth respondents to determine what are the expenses that must be released. It did so by ordering that the payments are to be released subject to supervision of the third respondent and in consultation with the second respondent,” further argues BoN adding that for the reasons set out in its response, the application should either be struck for lack of urgency or dismissed – in both instances- with costs, such costs to include the costs of one instructing and one instructed counsel.

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