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[2008] ZAWCHC 101
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National Director of Public Prosecutions v Mamdou (12099/2007) [2008] ZAWCHC 101 (31 January 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO:
12099/2007
DATE: 31
JANUARY 2008
In
the matter between:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS Applicant
and
DOUMBIA
MAMDOU Respondent
JUDGMENT
BOZALEK.
J
:
[1]
At the commencement of argument in this application the respondents
brought an application to strike out five passages in
the
applicant's replying affidavits as is set out on page 416 of the
record. The grounds are, in one instance, that the contents
are
hearsay and in the other instances that the contents are irrelevant.
More particularly it is said that the offending passages
are
attempts to make out a new or an additional case against the
respondents in reply, one which was not relied upon by the applicant
in its founding papers.
[2]
In the main application the National Director of Public
Prosecutions seeks a final order for the preservation of property
in
terms of section 38(1) of Chapter V1 of the
Prevention of Organised
Crime Act No. 121 of 1998
. The case arises out of a raid conducted
by the police on certain premises at the Cape Town railway station
in December 2006
when a large sum of money, including considerable
foreign currency, was seized. It is alleged
that the currency is
the instrumentality or proceeds of an offence, namely the
conducting of unlawful foreign exchange
transactions by first
respondent. A number of intervening respondents have now joined in
opposing the finalisation of the provisional
preservation order.
[3]
During the raid the police confiscated the currency, stamp pads,
calculators and a variety of documents. The applicant relies
on some
of these documents as evidencing currency transactions, conduct
denied by the first respondent. The striking out application
involves essentially the use by applicant in reply of certain of
these documents, namely papers from one or more diaries allegedly
seized from the first respondent's desk, as well as loose pages or
notes allegedly contained in those diaries, also allegedly
evidencing currency transactions.
[4]
In its founding papers the applicant referred to the documents in
the affidavit of Dzwinga as follows at page 39 of the record:
"11.
On the table Mohokare found files...the files contained documents
evidencing various currency exchange transactions".
At
page 41 of the record, paragraph 17, it is stated:
"Inspector
Beukes also seized calculators, stamp pads and files evidencing
a money-exchange business from first respondent's
office".
It
will be noted that no reference was made to diaries or loose notes
within those diaries.
[5]
In reply, however, in the passages which first respondent seeks to
strike out, the applicant's deponent Mohlala refers, in
para 55 of
the replying affidavit:
â
...
diaries, loose pieces of papers with
inscriptions..."
and in para 73.1 to
"...the
diaries depicting various transactions evidencing the
sale of foreign currency, loose documentation
recording
many money-exchange transactions..."
In
addition, there are two further references to these documents, while
sample copies are also annexed in reply. There is, moreover,
what
purports to be an analysis of some of the information allegedly
contained in these documents. I should mention that Dzwinga
also
filed an affidavit in reply stating that her use of the word "files"
in the founding papers was a misnomer since
no files were in fact
found or seized.
[6]
The
relevant rule, Uniform
Rule 6(15)
of Court provides:
"A
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant
with an
appropriate order as to costs, including costs as between attorney
and client. The court shall not grant the application
unless it is
satisfied that the applicant will be prejudiced in his case if it
not be granted".
In
Erasmus:
Superior
Court Practice
page B1-57 the learned author states that the sub-rule is not
exhaustive of the grounds upon which an application to strike out
matter from an affidavit may be brought. Thus it has always been
the practice to strike out matter in replying affidavits which
should have appeared in the founding affidavits.
[7]
Quoted as authority for this proposition is the case of
Titties
Bar & Bottle Store (Pty) Ltd v ABC Garage &
Others
1974(4) SA (TPD) at 362. In that matter the Court stated at page
369A-B:
"It
lies of course in the discretion of the Court in each particular
case to decide whether the applicant's
founding affidavit
contains sufficient allegations for the establishment of
his case. Courts do not normally
countenance a mere
skeleton of a case in the founding affidavit, which skeleton is then
sought to be covered in flesh in
the replying affidavit".
[8]
In Herbstein & Van Winsen:
The
Civil Practice of the Supreme Court of South Africa
(4
th
ed.) at page 365-366 the learned authors state the general rule as
follows:
"The
necessary allegations must appear in the supporting affidavits for
the court will not, save in exceptional circumstances,
allow the
applicant to make or supplement his case in his replying affidavit
and will order any matter appearing in it that should
have been in
the supporting affidavits to be struck out.
If,
however, the new matter in the replying affidavits is in answer to a
defence raised by the respondent and is not such that
it should have
been
included
in the supporting affidavits in order to set out a cause of action,
the court will refuse an application to strike out.
It
is well established that there exists a general rule that new matter
may not be introduced by an applicant in its replying
affidavit but
this is not an absolute rule and the court may, in an appropriate
case, allow an applicant to do so. In this context
new matter is not
synonymous with a new cause of action".
[9]
In the present matter, first respondent did not merely deal in his
opposing affidavit with the undetailed allegations made
by applicant
in its founding papers relating to the documentation. In terms of
the rules he called for an inspection of everything
seized by the
police. His attorney, Mr Corin, inspected and photographed all the
exhibits, including the diaries and loose pieces
of paper inside. He
had sample pages made of the diary and the loose pages inside and in
due course took instructions from his
client thereon.
[10]
First respondent then dealt with all these documents in his opposing
affidavit. This included a certain Galileo file, which
in fact
refers to documents contained in a study guide entitled "Galileo".
However, in paragraphs 33.7 and 33.8
of the first
respondent's answering affidavit he deals extensively with the
diaries and the loose pages contained therein
but testifies that he
does not recognise them and saw them for the first time when his
attorney showed them to him. He denies
that they were found on
his premises and he says that the occupant of an adjoining
office, also raided by the police
at the same time, told him that
they belonged to him. There is thus a clear dispute over
whether these documents
- for want of a better description â
were found in the first respondent's possession or not.
[11]
Not content with this however, the first respondent goes on in his
answering affidavit to say that none of the entries are
in his
handwriting and make no sense to him. The question may then
legitimately be asked, what is the status of all the material
in
paragraphs 33.7 and 33.8 if the striking out of the passages
in the applicant's replying affidavit responding
thereto, is
allowed. The anomalous position is reached that the first
respondent's material in question stands as support for
his general
denial but at the same time the applicant cannot rely on that
material to which the first respondent is responding.
[12]
Mr
Tredoux
for the first respondent asked rhetorically in argument the good
question why first respondent should speculatively answer
to
what was contained in the documents in question when
they were not properly brought up in the applicant's
founding
papers. However, this is exactly what the first respondent did. Mr
Tredoux
also
argued that had the first respondent known that these documents
would then come to the fore in the replying affidavits he
may well
have dealt with them more thoroughly.
[13]
There are at least two answers to this argument. Firstly, the
first respondent did deal with the documentation in question
at some
length, apart from denying furthermore that they were seized from
him. Secondly, Mr
Tredoux
confirmed
that he seeks no opportunity to deal with the documentation by way
of a supplementary affidavit.
[14]
Furthermore, the material sought to be struck out does not amount,
in my view, to the applicant making out a new case in
reply. It
always alleged that the documentation seized revealed evidence of
foreign currency exchange transactions. Given the
applicant's
failure to deal with the documents in any detail in its founding
papers, it would ordinarily be precluded from doing
so in reply.
However, there are, in my view,
exceptional
circumstances present here, namely the first respondent's detailed
dealing with the documents in question as
I have described
above which makes it appropriate, in my view, to allow the
applicant to deal with the documents more extensively
in reply than
it did in its finding papers.
[15]
By answering in the manner that he did, the first respondent in
effect sought to gain an advantage. Now that he is met with
a
response to his allegations from the applicant in reply, I do not
consider that he can be heard to complain when the applicant
replies
to this material, nor can I see any meaningful prejudice to the
first respondent, bearing in mind that prejudice
obviously does not
mean merely a set-back or what may be perceived as a set-back to
one's case. It remains always for this Court
to evaluate what
weight, if any, is to be given to the material objected to in the
light of the first respondent's denial that
it was seized from him
or that it evidences currency transactions.
[16]
In the result the striking out application in terms of paragraphs
1-4 of the notice is dismissed.The application
succeeds in
respect of paragraph 5 thereof
which
deals with certain words in the replying affidavit of one
Christians since it is common cause that such material
amounts to hearsay.
[17]
I will make no order as to costs at present but deal with this
aspect at the conclusion of the matter overall.
BOZALEK,
J