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[2020] ZAGPJHC 99
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National Director of Public Prosecutions v Phillips and Others, In Re: Phillips and Others v National Director of Public Prosecutions (2000/27885) [2020] ZAGPJHC 99 (18 May 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2000/27885
In
the application of:
National
Director of Public
Prosecutions Applicant
and
Andrew Lionel Phillips
and Others
First
to twentieth respondents
In
the counter-application of:
Andrew
Lionel Phillips and Others First
to Twentieth applicants
and
National
Director of Public Prosecutions
and
Others First
to Sixth Respondents
JUDGMENT
Vally
J
Introduction
[1]
This
is an application brought in terms of Rule 30 of the Uniform Rules of
Court (the rules). Rule 30 allows for a party to apply
to court to
set aside a step taken by its opponent, the other party, on the
grounds that the step is irregular. It is designed
to attend to a
procedural step taken by the other party which is not in accordance
with the rules, or which in one form or another
is defective. It is
an interlocutory application that is designed to remove what has
become a procedural “
hindrance
to the future conducting of the litigation
”
[1]
and no more. It is not aimed at terminating the litigation, nor is it
designed to effectively sterilise or neuter a party’s
case
altogether. Logically, therefore, it affords the court a wide
discretion when attending to a complaint against a step taken
by a
party. The court may set the step aside “
in
whole or in part
”
for its irregularity and grant the defaulting party “
leave
to amend
”,
or it may “
make
any such order as to it seems meet.
”
[2]
[2]
In this matter the applicant, the National
Director of Public Prosecutions (NDPP), brought an application to
rescind a restraint
order obtained from this Court by itself. Mr
Andrew Lionel Phillips and some of the companies (the Phillips
parties) associated
with him are the subjects of the restraint order.
The restraint order effectively took away the control of certain
properties,
which was clearly prejudicial to them. They delivered
(filed and served) an answering affidavit to the rescission
application,
and at the same time brought a counter-application to
the rescission application (the counter-application). The
counter-application
also seeks to rescind the restraint order, but
goes much further in that it seeks to hold the NDPP accountable for
certain losses
and costs incurred while the restraint order remains
operational. Broadly put, they seek an order that goes beyond a
mere
rescission of the restraint order. It is their contention that a
mere rescission of the restraint order would not be sufficient
to
restore the
status quo ante
and would saddle them with costs which they maintain should not be
for their account, but rather for the account of the NDPP since
the
NDPP had sought and obtained the restraint order. The NDPP has filed
an answering affidavit to the counter-application as well
as a
replying affidavit in the rescission application. Both these
affidavits form the subject of this rule 30 application.
Historical
facts
[3]
The
NDPP obtained the restraint order on 22 December 2000. It was sought
in terms of section 26 of the Prevention of Organised Crime
Act, 121
OF 1998 (POCA). As a result, a curator was appointed to take control
of the properties identified in the restraint order.
The restraint
order was confirmed on 31 July 2001 by this Court, per Heher J (as he
then was).
[3]
On 10 June 2011
this Court granted a permanent stay of prosecution against Mr
Phillips. This order was upheld by the Supreme Court
of Appeal (SCA)
on 28 September 2012. The NDPP launched an application to
rescind the restraint order on 10 April 2014. After
exchanging
various communications, both verbal and written, the Phillips parties
eventually delivered their answering affidavit
to the rescission
application, and simultaneously brought the counter-application on 25
November 2015. The NDPP delivered a notice
of intention to oppose the
counter-application. It did nothing more. It did not deliver the
replying affidavit to the rescission
application, nor the answering
affidavit to the counter-application. The counter-application seeks
relief against both the curator
and the NDPP. The curator delivered
an application to set aside the counter-application on the grounds
that he had no interest
in the matter and therefore should not have
been joined to it. The curator’s application was settled
between himself and
the Phillips parties. The curator agreed that he
would remain a party to the application and accordingly deliver an
answering affidavit.
He delivered his answering affidavit on 28 March
2017. The Phillips parties only replied thereto on 1 June 2018. The
curator only
opposes that part of the relief sought which affects
him. He remains agnostic with regard to the dispute between the
Phillips parties
and the NDPP. In the meantime the NDPP’s
replying affidavit in the rescission application and its answering
affidavit in
the counter-application remained outstanding.
[4]
It is clear from this trajectory of the matter
that throughout this lengthy and tortuous litigation the parties seem
to have had
little regard for the time periods prescribed in the
rules concerning the delivery of affidavits. It appears they engaged
in various
communications rather than deliver their respective
affidavits as per the rules.
[5]
Not having received NDPP’s replying
affidavit (in the rescission application) and answering affidavit (in
the counter-application),
the Phillips parties decided to set the two
applications on the unopposed motion court roll of 10 June 2019. On 6
June 2019 the
NDPP filed an application for the postponement of the
matter on the grounds that the counter-application remained opposed,
despite
its failure to file its answering affidavit in that
application. It is not clear on the papers before me if the
application for
postponement was opposed by the Phillips parties and,
if so, if they filed an answering affidavit thereto. However, the
matter
was called before Opperman J, who was presented with a draft
order agreed to by both the NDPP and the Phillips parties with a
request
to make it an order of court. Opperman J acceded to the
request. The order compels the NDPP to pay the costs occasioned by
the
postponement of the application, and compels it to file its two
affidavits on or before 9 August 2019, together with an application
for condonation for the late filing of the said affidavits.
[6]
On 8 August 2019 the NDPP delivered the two
affidavits without an accompanying application for condonation for
their late filing.
It therefore failed to comply fully with the order
issued by Opperman J. On 21 August 2019 the Phillips parties issued a
notice
to remove the cause of complaint in terms of rule 30(2)(b).
The notice alerted the NDPP to the fact that it had overlooked its
duty to deliver an application for condonation together with its
answering affidavit. The notice further called upon the NDPP to
remedy its deficient compliance with the order of Opperman J by
delivering the necessary application for condonation within 10
days.
The 10 days expired on 4 September 2019. On this day the NDPP
delivered its application for condonation. It therefore complied
with
the notice. But this did not console the Phillips parties. Nor did it
deter them from bringing this application.
[7]
It is imperative to mention that both the
Phillips parties and the NDPP are adamant that this Court is not
seized with the condonation
application. Its remit is limited to the
setting aside of the two affidavits and no more. The condonation
application, both parties
insist, is one that will be adjudicated at
a later stage.
The
Phillips parties’ case and an evaluation thereof
[8]
The Phillips parties seek to have the replying
affidavit in the rescission application, as well as the answering
affidavit in the
counter-application, set aside as being irregular.
They say that the irregularity lies in the fact that the said
affidavits were
delivered without the accompanying condonation
application as required by the order of Opperman J. Their complaint
is that:
a.
The failure of the NDPP to file the
condonation application despite being ordered to do so by this Court
is an irregular step that
warrants this Court’s censure; and,
b.
They are irreparably prejudiced by the
fact that these affidavits were not accompanied by the condonation
application which were
delivered three years out of time.
[9]
While it is correct that the NDPP failed to
deliver the condonation application as ordered, once the rule 30
notice was delivered
the NDPP rectified the irregularity within the
time period set out in the notice. Having rectified the irregularity
the step taken
can no longer be regarded as irregular. On this basis
alone, the application ought to be dismissed. The provisions of
sub-rules
30(2)(b) and (c) are instructive as well as dispositve of
the dispute before this Court. They provide:
“
(2)
An application [to set aside the irregular step] shall be on notice
to all parties specifying particulars of the irregularity
or
impropriety alleged, and may be made only if-
(a)
…
(b)
the applicant has, within ten days of
becoming aware of the step, by written notice afforded his opponent
an opportunity of removing
the cause of complaint within ten days;
(c)
the application is delivered within
fifteen days after the expiry of the second period mentioned in
paragraph (b) of subrule (2).”
[10]
The purpose of subrule 30(2)(b) is to (a) allow
the defaulting party to remove the cause of the complaint, and (b)
if that
party removes the cause of the complaint, there can, it
seems to me, no longer be any complaint. This is precisely what
occurred
in this case. The Phillips parties complied with subrule
30(2)(b) by issuing the necessary notice and the NDPP accepted the
validity
of the complaint and addressed it fully and finally. There
was no longer a cause to complain. Subrule 30(2)(c) is only
applicable
when the defaulting party fails to remove the cause of the
complaint. The Phillips parties brought this application in terms of
subrule 30(2)(c). But subrule 30(2)(c) ceased to have application as
soon as subrule 30(2)(b) was taken advantage of by the NDPP.
This in
my view is the only sensible interpretation of the two subrules. They
exist coextensively and must be applied in a manner
consistent with
such coextensivity, failing which subrule 30(2)(b) would be rendered
nurgatory.
[11]
That should be the end of the matter. However,
for the sake of completeness I address the issue of the prejudice the
Phillips parties
allege they will be forced to endure if the two
affidavits are not set aside. The prejudice they claim to suffer is
that, if it
were to be found that they should bear the costs of
returning the restrained properties to their original status, such
costs have
unduly increased as a result of the delay in the
finalisation of the two application. This delay was caused the NDPP
delivering
the two affidavits three years after they were due. The
increase in the costs are a result of the inflationary forces that
were
present in the South African economy during the time of the
three year delay. At the same time there has been the costs of
holding
the properties. These costs have to be borne daily.
[12]
There is no merit to this claim. The Phillips
parties are not able to gainsay that the court dealing with the
question of who is
to bear the costs of restoring the properties to
the original status can apportion the liability for all the costs
incurred by
taking note of the impact of the delay in the
finalisation of the matter on these costs, and by identifying the
party(ies) liable
for the delays. There have been so many delays in
this matter, and some of them may well lie solely at the feet of the
Phillips
parties, others solely at the feet of the NDPP and others
still at both their feet. There is simply no warrant to the Phillips
parties’ claim that they stand to suffer irreparable harm
should the two affidavits not be set aside at this stage. Whatever
harm they stand to suffer may well be addressed by the court hearing
the two applications.
[13]
There is another disturbing aspect to this
case. It is that the issue here is not really about the admission of
the two affidavits.
The admission of those two affidavits is an issue
integral to the condonation application. It is impossible to set
aside the two
affidavits without effectively extinguishing the
condonation application altogether. Once the two affidavits are set
aside the
condonation application loses all value, meaning or
purpose. Differently articulated, as soon as they are set aside there
is nothing
left to condone. The Phillips parties are simply wrong to
contend that this Court should strike them out and leave the
condonation
application for adjudication later, albeit in the same
Court.
[14]
In conclusion, the application stands to be
dismissed. Both parties sought their costs should they prevail. I
agree with them, costs
should follow the result.
Order
[15]
The following order is made.
a.
The application brought in terms of Rule
30 is dismissed.
b.
The applicants in the Rule 30
application are to pay the costs of the application.
_________________
Vally
J
Dates
of hearing: 20
April 2020
Date
of judgment: 18 May 2020
For
the Applicant:
M Chaskalson SC with NPG Redman SC
Instructed
by:
Shannon Little Attorneys
For
Lucky Acres:
Paul Strathern SC with William Coetzer
Instructed
by:
State Attorney
[1]
SA
Metropolitan Lewensversekeringsmaatskappy Bpk v Louw NO
1981 (4) SA 329
(O) at 333G
[2]
Rule 30(3)
[3]
National
Director of Public Prosecutions v Phillips and Others
2002 (4) SA 60
(W)