National Director of Public Prosecutions v In Re: An Application for the Issuing of a Letter of Request in terms of Section 2(2) of the International Co-operaion in Criminal Matters Act No 75 of 1996, Ex Parte (71/07/01) [2007] ZAGPHC 197 (14 September 2007)

IN THE HIGH COURT OF SOUTH AFRICA /ES

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO: 3771/07

DATE: 14/9/2007

NOT REPORTABLE

IN THE EX PARTE APPLICATION OF:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

IN RE:

AN APPLICATION FOR THE ISSUING OF A LETTER OF REQUEST IN TERMS OF SECTION 2(2) OF THE INTERNATIONAL CO-OPERATION IN CRIMINAL MATTERS ACT, NO 75 OF 1996

JUDGMENT

VAN DER MERWE, J

0n 23 December 2006 the national director of public prosecutions applied ex parte before a judge in chambers for the issuing in terms of section 2(2) of the International Co operation in Criminal Matters Act, no 75 of 1996 ("the act") of a letter of request to the Competent Authority in the United Kingdom ("the main application"). The letter of request was attached to the notice of motion. It is not necessary for present purposes to refer to the contents of the letter of request.

From the papers it appears that the judge who heard the main application was of the view that notice of that application should be given to a company affected by the application to wit Cay Nominees (Pty) Ltd and its managing director, a certain Jurgen Kögl. From the reading of the papers that served before the learned judge I am in respectful agreement with him that notice had to be given to the said company and its managing director.

Cay Nominees and Kögl filed a notice of opposition dated 19 February 2007. 0n 13 March 2007 the notice of opposition was withdrawn and a notice to abide was filed by the two parties.

After the learned judge returned from long leave the main application was again placed before him on 28 March 2007.

I am informed that the learned judge on 28 March 2007 enquired whether notice of the main application was given to the present applicant ("the applicant"). I am furthermore informed that the learned judge was advised that the applicant was not notified because his rights were not directly affected by the main application. The learned judge then granted the main application.

In terms of a notice of motion dated 9 May 2007 Mr Jacob Gedleyihlekisa Zuma (the applicant) applies for the following relief:

"1. That the applicant herein Jacob Gedleyihlekisa Zuma be given leave to intervene as a respondent.

2. That the order dated 28 March 2007 issued under the above case number is set aside and either replaced with an order that the ex parte application under the above case number is dismissed, alternatively that the application proceeds with dates for the filing of affidavits as ordered by this court.

3. The national director of public prosecutions is ordered to pay the costs of this application on the scale as between attorney and own client, such costs to include the costs consequent upon the employment of two counsel."

(Reference is hereinafter made to this application as "the application" and to the national director of public prosecutions as "the respondent".)

At the outset counsel for the applicant stated that a punitive costs order will not be sought in this matter.

The application is brought, according to the applicant, "on the narrow basis, at this stage, that I was not given notice of the ex parte (main) application when, for the reasons set out below, I plainly should have been given notice". The applicant reserved the right to deal with the merits of the main application in due course and to elaborate fully on his constitutional rights on which he rely and which he maintains are threatened, at least, by the obtaining of the order in the main application.

The "reasons set out below" in the applicant's affidavit can be summarised as follows.

In November 2000 a preparatory investigation was instituted in terms of section 28(13) of the National Prosecuting Authority Act, no 32 of 1998 into the so called "arms deal". During the early part of 2001 the state apparently came into possession of a document called an "encrypted fax". That led to the applicant being under active and comprehensive investigation by the national prosecuting authority since early to mid 2001. This, according to the applicant, culminated in a media conference in August 2003 where the then national director of public prosecutions announced that the national prosecuting authority believed that whilst there was a prima facie case of corruption against the applicant the prosecuting authority was not convinced that it had sufficient evidence against the applicant to secure a conviction. It was accordingly announced that a decision had been taken not to prosecute the applicant. At the time the applicant was the deputy president of the republic of South Africa and according to him a perception was created that he was guilty but that either he had covered his tracks too well or that he was too politically powerful to be prosecuted. The national prosecuting authority, however, decided to prosecute a certain Shabir Sheik and several of his companies in a widely publicised trial. Sheik was convicted in June 2005 and sentenced to fifteen years imprisonment. Shortly thereafter the applicant was dismissed as the deputy president of the republic of South Africa.

After his dismissal as deputy president the national prosecuting authority announced in June 2005 that it had decided to charge the applicant with corruption. He appeared in court on 29 June 2005. In November 2005 it was arranged that the trial against the applicant would commence on 31 July 2006 and run until completion thereof. During the latter part of June 2006 or early July 2006 the prosecution sought a postponement of the trial to February 2007. The applicant opposed the application for postponement which was heard by MSIMANG, J. The application for postponement was refused and the matter was thereafter struck from the roll.

According to the applicant one of the factors on which the state had relied for a postponement was the state's intention to finalise a request for legal assistance in Mauritius under the act. I will later refer in more detail to the provisions of section 2(1) and 2(2) of the act. Prior to the application for postponement before the trial judge, MSIMANG, J, the prosecuting authority had applied before COMBRINCK, J for an order authorising the issuing of a letter of request to the Mauritian authorities for the delivery of certain documents in the possession of those authorities to the national prosecuting authority. Notice of that application in terms of section 2(1) of the act was given to inter alia the applicant. COMBRINCK, J then held that only the trial court could make an order under section 2(1) of the act.

The applicant states that during the course of the postponement application, the state undertook, in the event that any further steps were taken to obtain the Mauritian documents that notice would be given to the applicant. During the course of the postponement application the applicant contends that no indication was given that any document other than those in Mauritius would be sought.

0n 4 December 2006 the respondent launched an application under section 2(2) of the act for the issue of a letter of request for legal assistance in Mauritius. Notice was given to inter alia the applicant.

For various reasons (which I need not discuss at present) the applicant maintains that the Mauritian application is relevant to the present application.

The Mauritian application was opposed by the applicant. The applicant contends that his locus standi in judicio to oppose that application was raised but that the state conceded that he had the necessary locus standi so to oppose the application. Reference is also made to the following remark by LEVINSOHN, DJP who heard the Mauritian application in his judgment delivered on 2 April 2007:

"Since the respondents have a clear interest in these proceedings they were given notice of the application for the request. They have opposed the issuing of a request and have delivered affidavits in support of their opposition."

From the documents annexed it appears that LEVINSOHN, DJP granted the application. An application for leave to appeal by the applicant was subsequently granted whereafter the state applied for the immediate execution of the order. That was granted subject to certain conditions.

The applicant furthermore contends that the failure by the respondent to refer to the Mauritian application in the main application and the fact that the applicant was notified of the Mauritian application, on its own, warrants the setting aside of the order granted in terms of the main application.

The applicant advanced further facts, relevant in his opinion to his locus standi to bring this application. In summary the facts are:

1. the applicant is the deputy president of the ANC;

2. the applicant has been regarded as a potential candidate for the presidency of the ANC;

3. it appears to the applicant that there is an attempt to engineer a situation whereby he would appear as a criminal/accused/suspect during the latter part of 2007 when political decisions will be taken which can affect the applicant's position in the ruling party;

4. there is a political motive behind the applicant's prosecution;

5. the applicant's constitutional rights and reputation are affected.

The respondent filed a lengthy answering affidavit. I do not intend dealing in detail with the allegations contained therein. It will be sufficient if I merely give the broad outlines of the respondent's approach. In paragraph 7 of the answering affidavit the respondent contends that the applicant's application should be dismissed on the basis that:

1. the applicant has failed to make out a case for the setting aside of the order;

2. the applicant has failed to make out a case for intervention;

3. no entitlement arises for the applicant to be given notice of an intended application brought in terms of the provisions of section 2(2) of the act;

4. no entitlement arises for the applicant to be given notice of the United Kingdom application as a result of the history of the Mauritian application;

5. the Mauritian application is to be factually distinguished from the present application;

6. there are no criminal proceedings pending against the applicant and he is therefore not "an accused";

7. no fair trial issues arise at this stage;

8. the applicant does not establish any infringement of his potential fair trial rights.

In the balance of the answering affidavit the issues summarised are dealt with. I do not intend dealing with the respondent's contentions regarding the issues referred to at this stage and will rather deal with it when I consider the legal position applicable in this application.

The applicant filed a replying affidavit out of time. I will deal therewith later herein. In the replying affidavit the applicant complains about the fact that the letter of request had been forwarded to the United Kingdom authorities and that documents had been received from the Barclays Bank and the United Kingdom solicitors from whom documents were requested and that only the originals are now being awaited. The applicant takes serious exception to the fact that the state did not take any steps to hold the letter of request in abeyance pending the outcome of the application or to notify the United Kingdom authorities that the main application was subject to a legal challenge. The applicant also complains that the documents received from the United Kingdom authorities had not been lodged with the registrar of the court pending the outcome of this application. Save for the aforegoing I will also refer later herein, in so far as may be necessary, to the applicant's replying affidavit.

0n 22 August 2007 the respondent filed a notice of motion in terms of which the following orders are asked for:

1. that the replying affidavit "filed" by the applicant on 13 August 2007 not be accepted into evidence and that the application be disposed of without reference to the said replying affidavit;

2. that, in the event of this court allowing the applicant to make application for condonation for the late filing of the applicant's replying affidavit, the said application be dismissed;

3. that the applicant be ordered to pay the costs of the application on the scale as between attorney and own client.

Though this application was not persisted with it is, however, necessary to refer to certain facts contained therein.

0n 31 May 2007 the state attorney wrote a letter to the applicant's attorney suggesting a time table for the filing of certain documents. In terms of this suggestion the applicant had to file his replying papers on 9 July 2007 and heads of argument on 23 July 2007. The respondent had to file his heads of argument on 13 August 2007. That suggestion was accepted on 11 June 2007. 0n 15 June 2007 a further suggestion was made by the respondent's attorney. In terms thereof the applicant's replying affidavit had to be filed by 16 July 2007 and heads of argument on 23 July and 13 August respectively as before. In terms of a letter 28 June 2007 it is clear that this further suggestion was agreed upon.

0n 11 July 2007 the deputy judge president notified the respondent's attorney that the matter was set down on 23 August 2007 as a special motion. Further directives were given namely that the applicant's heads of argument had to be filed by not later than 30 July 2007, that is seven days later than agreed between the parties. The respondent's heads of argument had to be filed not later than 6 August 2007, ie seven days earlier than agreed upon.

The respondent's heads of argument were filed on 6 August 2007 as required by the deputy judge president. The applicant's replying affidavit and heads of argument were only filed on 13 August 2007.

In the replying affidavit the applicant deals as follows with his failure to deliver the replying affidavit as agreed:

"I respectfully draw to this court's attention that the time frames agreed between the parties, and ordered by this court, were simply ignored by the state. The state did not deliver its answering affidavit on the due date. Instead, the state delivered its answering affidavit on 25 June 2007, making it impossible for me to reply during the month of July 2007 because both my counsel were on leave or attending to other matters during July 2007. They were unable to devote any attention to the matter before they went away, and neither of them returned from until 23 July 2007. The result is that this replying affidavit is being delivered out of time. To the extent necessary, condonation therefore is sought from this court."

It is correct that the respondent filed its answering papers on 25 June 2007 but that was as per the agreement and not as stated by the applicant, "not … on due date". There was no proper application for condonation for the late filing of the replying affidavit. The applicant furthermore failed to comply with a clear directive of the honourable deputy judge president by failing to file the heads timeously. No explanation for that failure was tendered.

As stated earlier herein, it is not necessary to deal with the application for the "non acceptance" of the applicant's replying affidavit any further because the parties agreed that the replying affidavit be received and considered in the application. I was also informed that the applicant's legal representatives apologised to their counter-parts for the incorrect allegations concerning the filing of the answering affidavit referred to above.

Also on 22 August 2005 the respondent filed a notice of application for striking out in terms of rule 6(15) of the Uniform Rules of Court. In the notice the court is asked to strike out certain paragraphs appearing in the founding and replying affidavits on the basis that it contains scandalous, vexatious and irrelevant matter. The respondent also asked for an order for costs on the scale as between attorney and own client.

I will later herein deal with the application for striking out.

Section 2 of the act deals with the issuing of letter of request. Section 2(1) of the act reads as follows:

"If it appears to a court or to the officer presiding at proceedings that the examination at such proceedings of a person who is in a foreign state, is necessary in the interests of justice and that the attendance of such person cannot be obtained without undue delay, expense or inconvenience, the court or such presiding officer may issue a letter of request in which assistance from that foreign state is sought to obtain such evidence as is stated in the letter of request for use at such proceedings."

"Proceedings" in section 1 of the act is defined as "criminal proceedings and any other proceedings before a court or other tribunal, instituted for the purpose of determining whether any act or omission or conduct involves or amounts to an offence by any person".

In casu the proceedings referred to in section 2(1) of the act refers to criminal proceedings pending before a court of law. That much appears to be common cause between the parties.

I have earlier herein referred to an application by the respondent before COMBRINCK, J (as he then was) for the issuing of a letter of request in respect of the Mauritian documents in terms of section 2(1) of the act before any criminal proceedings were instituted against the applicant. As also appears from the aforegoing the learned judge concluded that it was only the trial court that could entertain an application in terms of section 2(1) of the act. It appears to be common cause that because the section 2(1) application was not proceeded with before MSIMANG, J and because the matter was struck from the roll, an application in terms of section 2(2) of the act was brought of which the respondent had undertaken to notify the applicant of.

Section 2(2) of the act provides as follows:

"A judge in chambers or a magistrate may on application made to him or her issue a letter of request in which assistance from a foreign state is sought to obtain such information as is stated in the letter of request for use in an investigation related to an alleged offence if he or she is satisfied-

(a) that there are reasonable grounds for believing that an offence has been committed in the republic or that it is necessary to determine whether an offence has been committed;

(b) that an investigation in respect thereof is being conducted; and

(c) that for purposes of the investigation it is necessary in the interests of justice that information be obtained from a person or authority in a foreign state."

There is no dispute that the main application was brought in terms of section 2(2) of the act. It appears to be common cause that under normal circumstances a person whose affairs are investigated is not entitled to be notified of an application in terms of section 2(2) of the act. It appears that the applicant's contention is that because of various particular circumstances (to which reference had been made in the papers and which will again be discussed later herein) he was entitled to be notified of the main application.

Comprehensive heads of argument were filed by counsel on both sides. I am not going to deal with the heads of argument in all detail. In the course of what is to follow I will refer to some of the arguments raised by counsel.

From the papers it appears that the applicant essentially complains that his right to a fair trial has been affected as a result of the state's failure to notify him of the main application. As stated above it appears that the applicant accepts that there is a clear distinction between section 2(1) and section 2(2) of the act. In fact the applicant accepts that "very different requirements, very different processes and different consequences attach to the two processes". The applicant then continues to state that "the legislative division of these processes is not simply a matter of form, practicality or convenience. It reflects the fundamental constitutional values." The applicant's contention then is that he has achieved the status of an accused person because of the history of the matter and that he is therefore entitled to the rights bestowed upon him in terms of the provisions of section 2(1) of the act even in a section 2(2) application. The logical conclusion, according to the applicant, is then that because he was not allowed to exercise his rights in terms of section 2(1) of the act in the main application his fair trial rights are affected. This, the applicant says, is so because according to him "it is plain that once a person is an accused person he has the right to participate fully in the execution of any letter of request issued under the … act".

In my judgment there is a very clear distinction between the provisions of section 2(1) of the act and section 2(2) thereof. Section 2(1) must be followed when proceedings are before a court. The state can make use of the provisions of section 2(2) of the act when there are no proceedings before a court and when the state wants to gather information in order to decide whether to bring such proceedings before a court. In the section 2(1) proceedings the person involved in the proceedings before the court has an interest in the application. In the section 2(2) application the person whose affairs are being investigated has no interest in the investigation because the investigation as such may not lead to proceedings before a court. 0nce the investigation does lead to proceedings before a court the provisions of section 5 of the act apply.

In my judgment it is clear from the facts set out hereinbefore that there are no proceedings before a court as envisaged in section 2(1) of the act. The proceedings that were before a court were terminated when the applicant objected to the proceedings being postponed before MSIMANG, J, the learned judge refusing to postpone the proceedings because of such objection and the matter being struck from the roll thereafter.

The applicant blames the state for the fact that the matter was struck from the roll and in that respect submits the following in his founding affidavit:

"I respectfully submit that to allow the state to abbreviate the rights of an accused person to participate in the process of the application for or issue of a letter of request under section 2(1) and his rights to challenge such evidence during its overseas production, by the simple expedient of withdrawing the charges or allowing the matter to be struck from the roll as a result of the state's own misconduct, is to allow it to indirectly what it cannot do directly. 0nce I was charged, the state was compelled to follow the section 2(1) process under the … act if it chose to seek relief under that act – it cannot avoid that by the simple expedient of not preparing for trial and then resorting thereafter to the section 2(2) process based on an artificial argument of a prolonged investigation."

I do not agree with this submission. The applicant either is or is not an accused person before a court as a matter of fact and legal consequence. As pointed out already it was at the insistence of the applicant that the postponement of the proceedings was refused after which the matter was struck from the roll and the state elected to withdraw the charges against the applicant.

As is also clear from the aforegoing, the state made use of the proceedings under section 2(1) of the act in respect of the Mauritian documents while the proceedings were before court and once the matter was struck from the roll the provisions of section 2(2) were used to obtain the very same documents.

It is inter alia the applicant's case that because he was given notice of the section 2(2) application in the Mauritian matter, he was entitled to be notified of the section 2(2) application in respect of the United Kingdom documents.

In my judgment there is no merit in this argument. The papers deal clearly with the distinction between the two applications and the reason why notice was given to the applicant of the Mauritian application. At the risk of repetition it should be emphasised that the Mauritian application was initially brought in terms of section 2(1) of the act because criminal proceedings were before a court. It is also clear that the aim of the Mauritian application was to secure primary evidence in respect of copies of documents that the state was already possessed of prior to the Mauritian application. It appears from the papers that the Mauritian application was under discussion during the application for a postponement before MSIMANG, J. It was under those circumstances that the state agreed to notify the applicant of any section 2(2) application. It is clear to me that there was no concession by the state that in any section 2(2) application the applicant had to be notified of such application.

Furthermore, as stated, the Mauritian application is to secure primary evidence whereas in the United Kingdom application information is being sought. Whether that information will lead to any prosecution is at this stage still uncertain. In any event, as already stated, once a decision is taken to make use of the information obtained in the United Kingdom, section 5 of the act comes to the assistance of the applicant.

Reliance was also placed by the applicant on the judgment in the matter of Kolbatschenko v King NO and Another 2001 4 SA 336 (C). In that matter the court held that the applicant in that case had a sufficient interest in a section 2(2) request where-

(a) he had a close interest in the documents sought, an interest that extended beyond a pure trial related one; coupled with the fact that

(b) the objects seized were intended for possible use in a prosecution of the applicant in South Africa.

The following remarks of the court at 346H 347A of the judgment are of importance:

"Were the facts in this matter different, there would be much to be said for Mr Treurnicht's argument. Thus, if the South African prosecuting authorities were merely engaged in making preliminary and investigative enquiries and gathering evidence from persons or bodies who or which were not directly connected to the applicant, as was the case in the Park-Ross matter, supra, the applicant would probably not have locus standi to demand entrée, so to speak, to those enquiries or to claim an interdict to prevent the authorities from proceeding with them, or from deciding whether or not to prosecute him. In such a situation the applicant would have as little right as any other person suspected of having committed a crime of demanding to know what the nature, extent, stage or content of the police investigations and enquiries is, or of interdicting the police from pursuing them, provided that they are conducted lawfully;"

I agree with counsel for the respondent that the Kolbatschenko judgment is clearly distinguishable from the facts in casu.

Counsel for the applicant relied on the following passage in the Kolbatschenko judgment supra at p349A F:

"In our view the applicant is sufficiently affected in his rights and legal interests by the seizure of the books, documents and records: they may not be his property, but they are almost certainly the property of his family trust (the Erix Trust), of a company which 'belongs' to that trust (Corlis) or of a company with which, in the second respondent's case, the applicant is closely connected, albeit in an allegedly nefarious way (Round Timber). The documents 'confiscated' from the Bank relate to Corlis. These entities will all have a direct and substantial interest of some kind or other in the seized articles: if it is not of a proprietary nature, it will be a legal interest, if only in their continued possession.

Coupled with this is the fact that the books, documents and records have been seized, and the witnesses are to be questioned, with the avowed object of the possible use by the South African prosecuting authorities of the evidence thus obtained in a criminal prosecution of the applicant. Even if it could be said that the applicant's interests in Corlis, the Erix Trust and Round Timber were insufficient, in themselves, to constitute a 'direct and substantial interest' within the meaning of that phrase as propounded in United Watch & Diamond Co (Pty) Ltd and 0thers v Disa Hotels Ltd and Another 1972 4 SA 409 (C) and that they were consequently inadequate, per se, to clothe the applicant with locus standi, the fact that the applicant is at risk of being prosecuted is, in our view, sufficient to elevate his interest to what is required in this regard, viz a direct interest in the subject-matter of this litigation, which is current and actual, and is not abstract, academic, hypothetical or too far removed: …"

As stated on various occasions hereinbefore, and as appears from the wording of section 2(2) of the act, the application for the issuing of a letter of request is directed to obtain information in order to decide whether to prosecute a person or not. In spite thereof, there is a clear distinction between the procedure to be followed in a section 2(1) and a section 2(2) application.

If the court in the Kolbatschenko judgment supra was of the opinion that the risk of being prosecuted on its own is enough to clothe a person whose affairs is to be investigated with locus standi, I find myself in disagreement with such a finding. The facts in the Kolbatschenko matter differ completely from the facts in the present matter and I regard myself not to be bound by the dictum referred to.

Counsel for the applicant also relied on the judgment in the matter of Reuters Group Plc and 0thers v Vlijoen NO and 0thers 2001(2) SACR 519 (C) for his contention that the applicant has locus standi in the main application. The application in the Reuters judgment was brought in terms of section 31 of the act. From the judgment it appears that there was a firm undertaking on the part of at least the first respondent in that matter to notify the applicant of any application in terms of section 31 of the act. There was no compliance with that undertaking. The second respondent in the Reuters matter contended that he was not bound by the undertaking given by the first respondent and secondly that he was not obliged in law to give such notice.

It is clear that in the Reuters matter the respondents were obliged to give the applicant notice of the application in terms of the undertaking as the respondent in this matter was obliged to give the applicant notice of the Mauritian application. Dealing with the second respondent's contention that he was not in law obliged to give any notice to the applicant the court in the Reuters Group judgment states as follows at p529c-f:

"36.2.6 Not obliged in law to give notice

The respondents' second contention is that they were not in law obliged to give prior notice to the applicants for international assistance. We have difficulty in understanding this submission. It is a basic proposition of law that the invocation of any procedure which potentially affects the rights, property or legitimate expectations of a person entails prior notice and an opportunity to be heard.

36.2.7 It is fallacious to argue, as the respondents do, that prior notice is dispensed with by s 31 of the Act. Even if a procedure under s 31 could have been followed by the respondents, it does not follow that such procedure would be destructive of the applicants' rights to be heard."

In my judgment the Reuters Group judgment does not support the applicant's contention that he has locus standi in the main application. Not only do the facts differ completely from the facts in the present matter but it is clear that there was an undertaking to notify the applicant of the intended application and furthermore the application was brought not in terms of section 2(2) of the act.

As stated at the outset the applicant also contends that he has locus standi because of various reasons set out by him. In my judgment the fact that the applicant holds a high office in the ANC, the fact that he has been regarded as a potential candidate for the presidency of the ANC or even of the republic of South Africa, do not clothe him with locus standi to bring this application. All people are equal before the law irrespective of the office he or she occupies in government or his/her political standing or aspiration. The fact that a person may appear as a suspect, an accused or even a criminal, affecting his or her rights to be chosen to any leadership position, does not elevate such person above any other person in the eyes of the law. If it is known that the actions of a specific individual are investigated and such investigation may affect the good name and reputation of such an individual, it does not mean that that in itself will entitle such individual to demand to be heard in a section 2(2) application.

As was correctly pointed out on behalf of the respondent, if the person who is being investigated is allowed to interfere at the initial stage of the information gathering process, and if the first step in the process leads to many further investigations, the person so being investigated will be entitled to interfere in every step in the information gathering process. That is surely not what section 2(2) of the act envisages.

It was emphasised on behalf of the applicant that at this stage he only wants an opportunity to be heard on whether he should be allowed to partake in the investigation. I am satisfied that even on that narrow ground the applicant has no locus standi to bring the present application.

In my judgment the application must fail.

Before dealing with the question of costs and some ancillary matters, it is necessary to consider the striking out application.

Though the respondent asks for the striking out of paragraphs or subparagraphs, the real complaint is against so called "intemperate and offence language" used by the applicant in the affidavits. The respondent's attitude is that it is entitled to a punitive costs order against the applicant in the application to strike out, whether the paragraphs and subparagraphs are in fact struck out or not.

In referring to certain allegations and language objected to, I will refer only to those that really need consideration.

In paragraph 51(c) of the applicant's founding affidavit the following is said:

"In the postponement debate the prosecution was confronted with the allegation that it wished to engineer a situation whereby I would appear as a criminal/accused/suspect during the crucial period of the latter part of 2007. This would greatly aid the course of those politically opposed to me playing any leadership role in the ANC or the government of the RSA (this was, of course, an issue of dispute)."

The respondent took exception to the suggestion that the state wishes to engineer the scenario and states that the applicant "suggests that the respondent's decisions regarding the applicant's prosecution are informed by ulterior motives and hence that he has acted, and is acting, mala fide". This suggestion is rejected by the respondent and it is said that it is not supported by any evidence.

The respondent further suggests that the remarks are scandalous and vexatious.

I have earlier herein referred to the applicant's contention in the replying affidavit that because the respondent was late in delivering its answering affidavit the replying affidavit was filed late. I have already referred to the fact that at the outset counsel for the applicant conceded that the statement was wrong and that an apology had already been tendered to the respondent and its legal advisers. The respondent's counsel obviously accepted the apology but said that it is a worrying fact that the applicant's attorney, who was party to the agreements concerning the filing dates of affidavits, allowed a wrong allegation to remain in the replying affidavit.

In paragraph 29 of the replying affidavit the respondent is accused of lack of objectivity when the respondent alleged that the indictment was initially served on the applicant by agreement between the parties' counsel. The respondent furthermore objects to words used in paragraph 29 such as "undisguised malice", "it is arrogant for the state to contend" and "this allegation is disingenuous".

The respondent also complains of the following remark in paragraph 33h of the replying affidavit: "This is an extraordinary instance of circular reasoning smacking of sheer sophistry."

In paragraph 44 the following is inter alia stated: "It is both arrogant and absurd for the state to contend that I am no longer an accused person through my own doing."

In paragraph 45 of the replying affidavit reference is again made to the so called engineering by the state and in paragraph 48 thereof a certain allegation by the respondent is again described as "cynical and arrogant".

If one reads in particular the replying affidavit it appears that the language complained of is in fact intemperate and offensive. It is the type of language that should not be used in court documents without proper foundation. In fact it does not reflect well on the person using such language.

Had it been necessary to decide the application for the striking out I would have granted the order in respect of most of the allegations complained of. That in my judgment entitles the respondent to an order for costs in respect of such application. The question, however, remains whether a punitive costs order should be granted.

The respondent has complained that the applicant's attitude displayed by the use of the language complained of is an attitude that is displayed in all litigation between the applicant and the respondent. That might be so but I can only have regard to the facts in the matter before me. In my judgment this is not a case where I should grant a punitive costs order.

As far as the application for the non-acceptance of the replying affidavit is concerned, applicant's counsel apologised to respondent's counsel for the incorrect allegations made. Though the replying affidavit was well out of time it had to be taken account of in the interests of justice. In my judgment no order as to costs should be made on that application.

Both in respect of the applicant's application and the application for the striking out the costs should include the costs occasioned by the employment of two counsel.

The following orders are therefore made:

1. In respect of the application for striking out in terms of rule 6(15) the applicant is ordered to pay the costs of the application.

2. The applicant's application is dismissed with costs.

3. The costs referred to in 1 and 2 above will include the costs occasioned by the employment of two counsel.

W J VAN DER MERWE

JUDGE OF THE HIGH COURT

3771-2007

HEARD ON:

FOR THE APPLICANT:

INSTRUCTED BY:

FOR THE RESPONDENT: