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[2023] ZAKZPHC 76
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National Director of Public Prosecutions v Mkhize and Another (7419/2021P) [2023] ZAKZPHC 76 (10 August 2023)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 7419/2021P
In
the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
and
ZIHLANDLA
MKHIZE
FIRST RESPONDENT
SIBONELO
NGOMA
SECOND RESPONDENT
JUDGMENT
Nicholson
AJ:
[1]
The relief sought in this application is somewhat unusual because the
applicant seeks
interlocutory relief, and in the event of the
interlocutory relief being dismissed, in the very same papers, it
seeks that the
application be ventilated in full, and that the relief
in the main application be granted.
[2]
Accordingly, the applicant seeks an interlocutory order in terms of
Rule 6(5)(e) of
the Uniform Rules, for the filing of a further
affidavit in addition to the founding affidavit together with
ancillary relief.
In the alternative, in the very same application,
the applicant seeks an order in terms of s 48 of the Prevention of
Organised
Crime Act 121 of 1998 ('POCA') for a forfeiture order for
the property that will be described below.
[3]
I shall first deal with the interlocutory application for the filing
of further affidavits.
[4]
On 14 September 2021, the applicant applied for a preservation order
for various properties
which was granted on 7 March 2022. Among the
property is a Ford Ranger motor vehicle with registration number
N[...]; and an amount
of R25 700 in cash ('the property').
[5]
As shall later become apparent, the purpose of the interlocutory
application for the
filing of further affidavits, is to strengthen
its case with regard to the Ford Ranger, and does not introduce a new
matter.
[6]
It emerges from the papers that a forensic report was received by the
Organised Crime
Unit ('OCU') of the National Prosecuting Authority
('NPA') on 27 July 2022. The preservation application was filed on 8
September
2021. It is instructive that the preservation order was
drafted and deposed to by the Asset Forfeiture Unit ('AFU'), a unit
which
like the OCU, also resorts under the NPA.
[7]
Save for the property of the respondents' herein and other property
that was returned
to its owners, which are not relevant to this
application, a forfeiture order forfeiting the remaining properties
to the State
was granted on 4 July 2022.
[8]
The forensic report was signed on 27 August 2021 and as I have
already stated,
the application for the
preservation order was filed on 8 September
2021, with
the order being granted on 14 September 2021, which would
mean that the forensic report was not available at the time of the
filing
of the preservation application. While I have not had sight of
the forensic report, the applicant avers that the report strengthens
its case for forfeiture.
[9]
The replying affidavit was filed on 29 March 2022, after the filing
of the answering
affidavit on 22 March 2022, and a forfeiture order
was granted on 4 July 2022 in respect of the other property.
[10]
While the Organised Crime Unit received an affidavit in terms
of
s 212
of the
Criminal Procedure Act 51 of
1977
pertaining to the forensic report
on 5 April 2022, they only received the report itself on 27 July
2022. The exact date the report came to the attention of the
applicant is unclear from the papers.
[11]
The respondents oppose the application on the grounds that given that
the founding affidavit
is dated 27 August 2021, and that the
application was launched on 8 September 2021 and granted on 14
September 2021, an inference
may be drawn that the applicant was in
possession of the
s 212
affidavit at the time the application was
launched; accordingly, it cannot be true that the applicant only
received it on 5 April
2022. The respondents further aver that the
chain evidence in the handling of the forensic report is inadequate
and therefore inadmissible.
[12]
Rule 6(5)(e)
reads as follows:
'(
e
)
Within 10 days of the service upon the respondent of the affidavit
and documents referred to in sub-paragraph (ii) of paragraph
(
d
)
of subrule (5) the applicant may deliver a replying affidavit. The
court may in its discretion permit the filing of further affidavits.'
[13]
Generally, in motion proceedings three sets of affidavits are
exchanged: namely, the founding
affidavit, answering affidavit and
replying affidavit.
Rule 6(5)(
e
) makes allowances for the
filing of a further set of affidavits in the discretion of the court.
It is trite that a court's discretion
must be exercised judicially.
[14]
In
Porterstraat
69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd
,
[1]
it was held that the court must take the following factors into
consideration in determining whether or not to allow a further
affidavit:
'(i)
The reason why the evidence was not led timeously.
(ii)
The degree of materiality of the evidence.
(iii)
The possibility that it may have been shaped to "relieve the
pinch of the shoe".
(iv)
The balance of prejudice, viz the prejudice to the plaintiff if the
application is refused
and the prejudice to the defendant if it is
granted.
(v)
The stage which the particular litigation has reached. Where judgment
has been reserved
after all evidence has been heard and, before
judgment is delivered, plaintiff asks for leave to lead further
evidence, it may
well be that he or she will have a greater burden
because of factors such as the increased possibility of prejudice to
the defendant,
the greater need for finality, and the undesirability
of a reconsideration of the whole case, and perhaps also the
convenience
of the Court.
(vi)
The "healing balm" of an appropriate order as to costs.
(vii)
The general need for finality in judicial proceedings.
(viii)
The appropriateness, or otherwise, in all the circumstances, of
visiting the fault of the attorney
upon the head of his client.'
[2]
[15]
If the court is satisfied on these points, it will generally be
inclined towards allowing the affidavit to be filed.
[3]
Although as part of this judgment, I shall consider all eight points
raised above, I do not intend dealing with each point individually.
[16]
I pause to mention that an additional important ground in my
view is the interests of
justice. Put differently, the ultimate
decision should not bring the interests of justice into disrepute or
prejudice it.
[17]
It is apparent from the papers that the applicant seeks to
corroborate existing evidence
and not to introduce new evidence. I
say this because it is common cause that the Ford Ranger was at the
scene of the crime and
used both to transport the accused to the
crime scene and to direct the trucks to the crime scene.
[18]
The only issue in dispute is whether or not the Ford Ranger
falls within the definition
of instrumentality in terms of
s 1
of
POCA. In the circumstances, it would have served no purpose for the
applicant to withhold the forensic report because the report
strengthens the applicant's case. Accordingly, it must be accepted
that it did not have the report at the time of the filing of
this
application.
[19]
Furthermore, I am not called to make a final forfeiture order in the
event of the additional
affidavit being allowed. Accordingly, the
respondents will be given an opportunity to oppose the facts
contained in the forensic
report. Therefore, the respondents will not
be prejudiced.
[20]
In the premises, I am of the view that the applicant should be
allowed to file a further affidavit.
[21]
Having found that the applicant is allowed to file a further
affidavit, it is unnecessary to
determine any issue in the forfeiture
application at this point, and such issue can be determined once the
further affidavits have
been filed.
[22]
While ordinarily costs ought to follow the result and in terms of
Porterstraat
, a consideration in determining whether to allow
the further affidavit is 'the "healing balm" of an
appropriate order
as to costs'. In this instance the applicant is
seeking an indulgence from the court, hence it cannot be said that
costs follow
the result. Further, it appears that should the
applicant have had proper protocols in place to share information
among its units,
this application would have been unnecessary.
Further still, it is not clear why the applicant did not wait for the
forensic report
before filing the preservation order application. It
is not dealt with in the papers. Had it waited, this application
would have
been unnecessary.
[23]
On the other hand, while I was given the assurances by Mr Matlamela
that the respondents' heads
of argument were handed to the
respondents' attorneys of record timeously, the heads of argument
were never filed but merely served
on the applicant. Mr Matlamela
advises me that he only became aware of that state of affairs a mere
day or two before the hearing
of this application. Such conduct by
the respondents' attorneys is unacceptable. Furthermore, Ms Khan
brought to my attention that
in terms of an order by Mlotshwa AJ, the
respondents' heads of argument should have been filed on 20 June
2023, however, they were
only served on 6 July 2023 and they were
never filed.
[24]
Such conduct is unacceptable and must be deterred. For these reasons,
I am of the view that there
should be no order as to costs.
Order
[25]
In the result, I make the following order:
1.
Leave is hereby granted in terms of
rule 6(5)(e)
for the applicant to
file a further affidavit;
2.
The respondents are directed to deliver any answer to the applicant's
further affidavit within 20 days of the service of the said affidavit
upon them;
3.
The applicant is directed to deliver any reply to the respondents'
affidavit within 21 days thereafter.
4.
There is no order as to costs.
NICHOLSON
AJ
Date
of hearing:
21 July 2023
Date
handed down:
10 August 2023
Parties
For applicant:
Ms Khan
Instructed by:
State Attorney,
KwaZulu-Natal
6th Floor,
Metropolitan Life Building
391 Anton Lembede
Durban
Ref:
119/0012406/21/W/P10
Ref: 10/8/3/AFU:
KZN/0023/2020
For first and
second respondents:
Mr MA Matlamela
Instructed by:
Dludlu Attorneys
131 - 133 Clark
Road
Glenwood Durban
Ref: M637/21
[1]
Porterstraat
69 Eiendomme (Pty) Ltd v PA Venter Worcester (Pty) Ltd 2000 (4) SA
598 (C).
[2]
Ibid at 617B-F.
[3]
Transvaal
Racing Club v Joc
key
Club of South Africa
1958
(3) SA 599
(W) at 604A-F.