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2012
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[2012] ZAGPPHC 117
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National Director of Public Prosecutions v Daniels and Others (54183/2008) [2012] ZAGPPHC 117 (15 June 2012)
NOT
REPORTABLE
IN
THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
Number: 54183/2008
DATE:15/06/2012
In
the matter of
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
......................................
Applicant
And
BARBARA
DANIELS
........................................................................................
First
Respondent
VENICIA
NAIDOO
.......................................................................................
Second
Respondent
SANOOSHIA
ABRAHAMS
….........................................................................
Third
Respondent
THILOSHNEE
NAIDOO
..................................................................................
Forth
Respondent
JUDGMENT
-
APPLICATION
FOR LEAVE TO APPEAL—2
nd
, 3
rd
AND 4
th
RESPONDENTS
BAM
AJ
1.
On 19
th
March 2009 a preservation order was granted to the
applicant in terms of the provisions of the Prevention of Organized
Crime Act,
Act 121 of 1998 ("POCA"). The order concerned
certain immovable and movable property allegedly belonging to the
respondents.
On 19 April 2009 the respondents filed a notice of
motion to anticipate and rescind the preservation order. On 11 June
2009 the
applicant applied for a forfeiture order in terms of POCA.
2.
On 12 October 2010 I handed down my judgment in the above matter. The
application for the forfeiture of the property in question
was
granted with costs.
3.
On 23 March 2011 the second, third and fourth respondents filed their
application for condonation of the late filing of their
application
for leave to appeal.
4.
On 30 September 2011 the application for leave to appeal was filed by
the said three respondents.
5.
Both applications were eventually enrolled on 26 April 2012. On this
date Mr Dorfling, appearing for the applicants (respondents
2, 3 and
4) applied for a postponement of the application. The application for
postponement was not opposed by Mr Dodson SC, appearing
for the NDPP,
the original applicant, with Mr Wilson, on condition that the
respondents pay the wasted costs. The matter was postponed
and the
respondents were ordered to pay the costs. One of the reasons for the
application for postponement was to enable mr Dorfling
to prepare
properly for argument. The record on the court file was in total
disarray and it was undertaken by the respondent's
attorney of record
that the court file will be attended to, to enable me to read the
papers beforehand. This would have occurred
at least two weeks before
the date arranged for the arguing of the application, 6 June 2012. It
suffices to say that the file was
returned to my chambers at 14h00 on
4 June 2012 and that the papers were in any event not bound in
accordance with the practice
rules of this division. However, in
order to dispose of the matter, I indicated to counsel on 6 June 2012
that the application
should be proceeded with. Mr Scheepers appeared
for the respondents
6.
The respondents concerned relied upon, what purports to be, an
affidavit by the second respondent, confirmed by the third and
fourth
respondents. During argument it was pointed out by Mr Dodson SC that
the statement of the second respondent upon which the
respondents
were relying, was not properly commissioned by the commissioner of
oaths in that the commissioner did not sign the
document. The
confirming statements of the third and fourth respondents suffered
the same fate. Mr Dodson further pointed out that
the statement was
signed by the second respondent on 2 March 2012 and that it appears,
ex facie the document that the stamp bearing
the particulars of the
commissioner of oaths was affixed to the document on 17 March 2011.
These facts create the impression that
the deponent to the statement
were not present when the commissioners name stamp was affixed to the
document.
7.
The respondents did not apply for a postponement to rectify or
explain the discrepancies pointed out by mr Dobson.
8.
It is trite that in order to succeed with an application for
condonation for late filing of the application for leave to appeal,
the applicant must show that good reasons exist for the delay and
that reasonable prospects exist that the appeal may be successful.
In
this regard mr Dodson referred to the recent decision of Laerskool
Generaal Hendrik Schoeman v Bastian Financial Services 2012(2)
SA
637(CC. Mr Dodson also referred to the provisions of section 55 of
POCA limiting the time period for the lodging of an appeal
against a
forfeiture order to 30 days.
9.
It was argued on behalf of the respondents that the delay in lodging
the condonation application, and for that matter the application
for
leave to appeal, was not due to any conduct of the respondents. The
legal representatives are apparently to be blamed for all
the
problems. The second respondent's allegation that she was told by her
legal representative from around October 2009 that judgment
was
granted in their favor, seems to me, to say the least, very strange,
in view of the fact that the first preservation order
was granted on
21 November 2008, and after it had lapsed that a second preservation
order was granted on 10 December 2009. On 24
April 2009 the
respondents gave notice of their intention to oppose the preservation
order and on 11 June 2009 the applicant applied
for the forfeiture
order. The parties continued to file their respective papers up to
October 2009. Notice of enrollment for 19
October 2009 was served on
the respondents' attorneys on 1 October 2009. On the latter date the
matter was postponed sine die.
It was thereafter again enrolled for
26 July 2010. When the matter was argued before me on 29 July 2010
the respondents were represented
by senior counsel.
On
the probabilities the respondents would, at least been aware of the
appointment of senior counsel to argue the matter. I deem
it totally
unlikely that the respondent's attorney would have appointed senior
counsel without specific instructions by the respondents.
10.
The second respondent stated that she was informed by a family member
of the forfeiture order, who read about it in the media.
The date the
second applicant received the information is unknown. On the
probabilities the matter would have been reported in
the press soon
after the forfeiture order was granted. After having failed to
contact her erstwhile lawyer, the second respondent
instructed
another attorney, apparently in December 2010. The latter attorney
obtained the court order around the first week of
January 2011.
11.
There is no explanation why the condonation application was filed
only on 23 March 2011. In this regard it appears that the
respondent's attorney of record is blaming counsel for wrong advice.
The shifting of blame by the respondent's attorney does not
avail the
respondents.
Section
55 of POCA is clear and cannot, in my view, be misinterpreted. The
attorneys' negligence in this regard was not explained
at all.
12.
Accordingly the respondents have failed to advance an acceptable
explanation for their delay in lodging the condonation application,
and the application for leave to appeal. The fact that the
respondents' founding affidavit was not commissioned, in any event,
in my view, is fatal to the application.
13.
I have in any event perused the respondents' grounds in their notice
of appeal. After having considered the merits of the matter
again, I
am of the opinion that no prospects to succeed on appeal exist.
14.
Accordingly the application for condonation and the application for
leave to appeal are dismissed with costs.
AJ
BAM
Acting
Judge of the High Court.
15
June 2012.