National Director of Prosecutions v Van der Westhuizen (891/2019) [2021] ZAECELLC 17 (15 June 2021)

National Director of Prosecutions v Van der Westhuizen (891/2019) [2021] ZAECELLC 17 (15 June 2021)

The application was dismissed due to non-compliance with Rule 6(1) of the Uniform Rules of Court. The founding affidavit submitted by the applicant was not commissioned before a Commissioner of Oaths, rendering it invalid and incapable of condonation. The subsequent attempt to file a commissioned affidavit was irregular and not accompanied by an application for condonation. As a result, there was no admissible evidence before the court to support the relief sought. The court found that this procedural defect was fatal and warranted dismissal of the application. Regarding costs, the court declined to award punitive costs against the applicant, finding that while the case was poorly...

Citation
[2021] ZAECELLC 17
Parties
Applicant: National Director of Public Prosecutions; Respondent: Nathan V D Westhuizen
Court
Eastern Cape High Court, East London Local Court
Jurisdiction
South Africa
Judgment Date
15 June 2021
Case Number
891/2019
Procedural Posture
Forfeiture Application / Final Judgment
Outcome
Application dismissed with costs awarded to the respondent on a party and party scale.
Judges
N Gqamana
Legal Topics
Uniform Rules of Court, Affidavit Requirements, Prevention of Organised Crime Act, Costs Order
Civil Procedure Criminal Law Uniform Rules of Court Affidavit Requirements Prevention of Organised Crime Act Costs Order

Case Brief

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Parties

National Director of Public Prosecutions

Applicant

Nathan V D Westhuizen

Respondent

Procedural Posture

Forfeiture Application / Final Judgment

Legal Issues

  1. 1 Whether the applicant's forfeiture application complies with Rule 6(1) of the Uniform Rules of Court.
  2. 2 Whether the founding affidavit is valid and properly commissioned.
  3. 3 Whether the application should be dismissed for procedural defects.

Ratio Decidendi

The application was dismissed due to non-compliance with Rule 6(1) of the Uniform Rules of Court. The founding affidavit submitted by the applicant was not commissioned before a Commissioner of Oaths, rendering it invalid and incapable of condonation. The subsequent attempt to file a commissioned affidavit was irregular and not accompanied by an application for condonation. As a result, there was no admissible evidence before the court to support the relief sought. The court found that this procedural defect was fatal and warranted dismissal of the application. Regarding costs, the court declined to award punitive costs against the applicant, finding that while the case was poorly...

Court Disposition

Application dismissed with costs awarded to the respondent on a party and party scale.

Orders

  • The application is dismissed.
  • The applicant is ordered to pay the respondent's costs of this application on a party and party scale.