About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2021
>>
[2021] ZAECELLC 17
|
|
National Director of Prosecutions v Van der Westhuizen (891/2019) [2021] ZAECELLC 17 (15 June 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(EAST
LONDON CIRCUIT DIVISION)
CASE
NO: 891/2019
In
the matter between:
THE NATIONAL DIRECTOR
OF
PUBLIC PROSECUTIONS
Applicant
and
NATHAN V D WESTHUIZEN
Respondent
In
re: R75 514 in cash (the property) seized by the South African
Police Service members (the SAPS) in Pefferville, East London
on 19
July 2019
JUDGMENT
GQAMANA
J:
[1]
The Applicant (“NDPP”) filed an application in terms of
section 48 of the Prevention of
Organised Crime Act, 121 of 1998
(“POCA”), seeking an order forfeiting to the State the
Respondent’s property
which was seized by the police on 18 July
2019.
[1]
That application
was met with a number of points
in
limine
raised by the Respondent. His contention was that, the
application is fatally defective due to failure to comply with Rule
6(1), (2), (3) and (5)(a) and (b)(iii) of the Uniform Rules.
[2]
The relevant sub-rules read:
“
(1)
Save where proceedings by way of petition are prescribed by law,
every application must be brought
on notice of motion supported by an
affidavit as to the facts upon which the applicant relies for relief.
(2)
When relief is claimed against any person, or where it is necessary
or proper to give
any person notice of such application, the notice
of motion must be addressed to both the registrar and such person,
otherwise
it must be addressed to the registrar only.
(3)
Every petition must conclude with the form of order prayed and be
verified upon oath
by or on behalf of the petitioner.
(5)(a)
Every application other than one brought
ex
parte
must be brought on notice of
motion as near as may be in accordance with Form 2(a) of the First
Schedule and true copies of the
notice, and all annexures thereto,
must be served upon every party to whom notice thereof is to be
given.
(b)
In a notice of motion the application must–
(iii)
set forth a day, not less than five days after service thereof on the
respondent, on or
before which such respondent is required to notify
the applicant, in writing, whether respondent intends to oppose such
application,
and must further state that if no such notification is
given the application will be set down for hearing on a stated day,
not
being less than 10 days after service on the said respondent of
the said notice.”
[2]
In my view, this matter should be disposed of on the point about
non-compliance with rule 6(1) and therefore
I will devote my energy
for the purposes of the order issued below solely on this point.
However, before doing so, I need
to sketch out the factual backdrop
and history of the litigation hereto, in order to demonstrate the
unfortunate manner on how
the NDPP’s case was pursued.
[3]
This journey began by an
ex
parte
application instituted in this court in terms of s 38(1) of POCA on 1
August 2019, by the NDPP. An order in that regard was
granted
on 6 August 2019 in favour of the NDPP in respect of the cash in the
amount of R75 514,00 (the Respondent’s
property) which was
seized by the police in Pefferville, East London on 19 July 2019.
[3]
[4]
Subsequent thereto and in compliance with paragraph 4 of the
aforesaid order, a notice of such order
was published in the
Government Gazette on 23 August 2019.
[4]
Thereafter, on 4 September 2019, the Respondent entered an appearance
and gave notice of intention to oppose the making of
a forfeiture
order. Accompanying the Respondent’s aforesaid notice was
a detailed affidavit deposed to by the Respondent
setting out the
basis of his defence.
[5]
[5]
Thereafter, on 5 November 2019, the NDPP issued the present
application in terms of the provisions of
section 48 of POCA which
reads:
“
(1)
If a preservation of property order is in force the National
Director, may apply to a High Court
for an order forfeiting to the
State or any of the property that is subject to the preservation of
property order.
(2)
The National Director shall give 14 days notice of an application
under subsection
(1) to every person who entered and appearance in
terms of section 39(3).
(3)
A notice under subsection (2) shall be served in the manner in which
a summons whereby
civil proceedings in the High Court are commenced,
is served.
(4)
Any person who entered an appearance in terms of section 39(3) may
appear at the application
under subsection (1)-
(a)
to oppose the making of the order; or
(b)
to apply for an order-
(i)
excluding his or her interest in that
property from the operation of the order; or
(ii)
varying the operation of the order in
respect of that property,
and
may adduce evidence at the hearing of the application.”
[6]
The notice of motion was on short form and the Respondent was neither
cited nor was he afforded the
opportunity to file the answering
affidavit.
[6]
The notice
was supported by an unsigned so-called “founding affidavit”
of Ms Nicole Peters. The application
was to be heard on 12
November 2019. On 7 November 2019, the Respondent filed a
notice of opposition.
[7]
A
day later,
[8]
the NDPP removed
the matter from the roll by filing a notice of removal.
[9]
Three days thereafter, on 11 November 2019, the NDPP again filed
another notice of motion
[10]
and on the face of this notice, the application was to be heard on 26
November 2019. Furthermore, in terms of this notice,
the
Respondent was given 14 days to deliver his answering affidavit.
The notice was served on the Respondent’s attorney
on 11
November 2019.
[11]
Contrary to the period of 14 days to file the answering affidavit,
the application was set down prematurely. Appreciating
this
short-coming, the NDPP file a “Notice of Withdrawal” on
21 November 2019.
[12]
[7]
Fast forwarding, on 7 January 2020, the Respondent’s attorney
penned a letter to the NDPP’s
attorneys, placing on record the
following:
“
1.
We refer to your Notice of Withdrawal dated 21 November 2019 and to
your letter dated 11
December 2019.
2.
As indicated to our letter dated 20 November 2019, we are of the view
that your
application is fatally defective in that both your Notice
of Motion and Founding Affidavit contain various instances of
non-compliance
with the Uniform Rules of Court.
3.
We alerted yourselves to those defects in our aforementioned letter
and called
upon yourselves to remedy same in accordance with the
Uniform Rules alternatively, to withdraw the application…”
This
letter concluded with the proposal that the NDPP should withdraw the
application, tender the Respondent’s costs and to
institute a
proper application which complies with the provisions of Rule 6.
The proposal was not accepted. The application
was not
withdrawn.
[8]
Instead, on 23 January 2020, a notice of intention to amend was filed
on behalf of the NDPP.
[13]
Thereafter, on 11 February 2020, a notice setting down the matter for
hearing on 3 March 2020 was filed by the NDPP’s
attorneys.
[14]
On receipt of the notice of set down, the Respondent filed a notice
in terms of Rule 30(2)(b)
[15]
on 18 February 2020. Soon thereafter on 25 February 2020, the
NDPP removed the matter from the roll
[16]
of the 3 March 2020.
[9]
Thereafter, on 17 July 2020, a notice of withdrawal was filed on
behalf of the NDPP.
[17]
This notice reads:
“
BE
PLEASED TO TAKE NOTICE that the Applicant herein files a Notice to
Withdraw the Forfeiture Application filed on 21 November 2019.”
[10]
On 20 August 2020, a notice of set down was filed on behalf of the
NDPP
[18]
and the date of the
hearing was 01 September 2020. On 27 August 2020, the
Respondent then filed his answering affidavit in
opposition to the
NDPP’s forfeiture application.
[19]
The NDPP’s case was badly handled from the inception of the s
48 of POCA application, but the litigation itself was
not vexatious.
[11]
Reverting to the points raised by the Respondent, that the
application is defective because the founding affidavit
of Ms
Peters
[20]
is not signed by a
Commissioner of Oaths as prescribed in regulations 2, 3 and 4 of the
regulations published in terms of the Justices
of the Peace and
Commissioners of Oaths Act 16 of 1963. Faced with this
objection, the NDPP filed a filing notice attaching
thereon an
identical founding affidavit which was attested and commissioned on
21 September 2020, almost a year after the original
so-called
founding affidavit was filed. There was no condonation
application nor an explanation for this belated and irregular
attempt
to substitute the unattested statement of Ms Peters.
[12]
In terms of rule 6(1) of the Uniform Rules, a notice of motion must
be supported by an affidavit as to the facts
upon which an applicant
relies for the relief. If there is no affidavit before a court
in support of the relief claimed,
as a consequence of that, there is
no evidence upon which the relief could be granted. In motion
proceedings the affidavits
constitute evidence that would have been
necessary in a trial and also serves as pleadings,
[21]
setting and defining the issues to be adjudicated.
[13]
It is also trite that, an affidavit is a statement in writing sworn
to before someone who has authority to administer
an oath, it is
solemn assurance of facts known to the person who states them and
sworn to as his statement before a commissioner
of oaths.
[22]
In the instant matter the unattested statement of Ms Peters
[23]
(the so-called founding affidavit) is neither commissioned nor signed
before a Commissioner of Oaths and that is a fatal defect
incapable
of condonation.
[24]
[14]
Furthermore the unattested statement of Ms Peters is
pro
non scripto
and because of that, the NDPP has not placed evidence before me in
support of the relief claimed in her application in terms of
s 48 of
POCA. An affidavit substitutes as the testimony of a
witness.
[25]
Accordingly, the NDPP’s application stands to be dismissed on
this basis alone without having regard to the other points
in
limine
raised by the Respondent as mentioned in paragraph 1 above.
[15]
With regards to costs, the Respondent seeks punitive costs as against
the NDPP. The submission advanced on
his behalf was that, the
NDPP was informed that the application was fatally defective but no
action was taken in terms of the rules
to cure such defect or to
withdraw the application and to institute it
de
novo
.
It was argued further that the application or the conduct of the NDPP
was vexatious. Indeed a court may award punitive
costs order
against a party as its sign of displeasure where, for instance, a
conduct of such party was vexatious, or such party’s
conduct
amounts to an abuse of court process.
[26]
However on the facts herein, I disagree with the Respondent’s
counsel that the NDPP’s conduct in these proceedings
was
vexatious or it amounts to an abuse of court process. The NDPP
obtained a preservation order against the Respondent’s
property. In order to have such property forfeited to the
State, the present application was instituted. However, in
support of her application, an unattested statement of Ms Peters was
filed, sadly her case was badly handled by her attorneys.
In
the exercise of my discretion, I am not satisfied on the facts herein
that a punitive costs order against the NDPP is warranted.
[16]
In the result the following order is issued:
1.
The application is dismissed.
2.
The Applicant is ordered to pay the Respondent’s costs of this
application on a party
and party scale.
_______________________
N GQAMANA
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel for the
Applicant :
X Nelani
Instructed
by
:
State Attorney
EAST
LONDON
Counsel for the
Respondents :
D T Young
Instructed
by
:
Changfoot Van Breda Inc. Attorneys
EAST
LONDON
Heard on
: 3 June 2021
Delivered
on
: 15 June 2021
[1]
See
Notice of Motion dated 5 November 2019.
[2]
Index,
p125; para 9.
[3]
See
Index, pp 53–55.
[4]
P56
– 57.
[5]
Index
pp 86–89.
[6]
Index,
pp 36–37.
[7]
Index,
pp 59–60.
[8]
On
8 November 2019.
[9]
Index,
pp 61–62.
[10]
Index
pp 64–66.
[11]
Index
p66.
[12]
Index
p67.
[13]
Index,
pp 63–65.
[14]
Index
p109.
[15]
Index
pp 74–79.
[16]
Index
p112, Notice of Removal from the roll.
[17]
Index
p113.
[18]
Index
p114.
[19]
Index
pp 116–144.
[20]
Index
pp 40–52.
[21]
Herbstein
Van Winsen: The Civil Practice of the High Courts of South Africa,
5
th
edition, Volume 1 p 439.
[22]
Wingaardt
v Grobler
2010(6) SA 148(ECG) para 8 and the cases cited therein.
[23]
Index
pp 40-52.
[24]
Wingaardt
(supra) at para [9].
[25]
Venmop
275 (Pty) Ltd Cleverlad Projects (Pty) Ltd
2016(1) SA 78 (GJ) at 86A.
[26]
Public
Protector v South Africa Reserve Bank
2019(6) SA 253 (CC) at para [8].