National Director of Public Prosecutions v Mamdou (12099/2007) [2008] ZAWCHC 101 (31 January 2008)

National Director of Public Prosecutions v Mamdou (12099/2007) [2008] ZAWCHC 101 (31 January 2008)

The court held that although the applicant's founding papers did not detail the diaries and loose notes, the respondent had engaged with these documents extensively in his answering affidavit, including denying their provenance and authenticity. The respondent's detailed response created exceptional circumstances...

Source-derived case information.

Citation
[2008] ZAWCHC 101
Parties
Applicant: National Director of Public Prosecutions; Respondent: Doumbia Mamdou
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
31 January 2008
Case Number
12099/2007
Procedural Posture
Civil Application / Application to Strike Out Passages From Replying Affidavit
Outcome
Application to strike out dismissed in respect of paragraphs 1-4; granted in respect of paragraph 5 (hearsay). No order as to costs at present.
Judges
Bozalek
Legal Topics
Striking Out Affidavit Matter, Replying Affidavit New Matter, Prejudice in Motion Proceedings
Civil Procedure Striking Out Affidavit Matter Replying Affidavit New Matter Prejudice in Motion Proceedings

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Summary, issues, holding and outcome

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Parties

National Director of Public Prosecutions

Applicant

Doumbia Mamdou

Respondent

Procedural Posture

Civil Application / Application to Strike Out Passages From Replying Affidavit

Legal Issues

  1. 1 Whether the applicant's replying affidavit improperly introduced new matter that should have been in the founding papers.
  2. 2 Whether the passages in the replying affidavit are hearsay or irrelevant and should be struck out.
  3. 3 Whether the respondent is prejudiced if the passages are not struck out.

Ratio Decidendi

The court held that although the applicant's founding papers did not detail the diaries and loose notes, the respondent had engaged with these documents extensively in his answering affidavit, including denying their provenance and authenticity. The respondent's detailed response created exceptional circumstances justifying the applicant's more extensive reply. The court found no meaningful prejudice to the respondent, as he had already dealt with the documents and did not seek an opportunity to file a supplementary affidavit. The application to strike out was dismissed for paragraphs 1-4, but granted for paragraph 5, which contained hearsay material in the replying affidavit of Christians.

Court Disposition

Application to strike out dismissed in respect of paragraphs 1-4; granted in respect of paragraph 5 (hearsay). No order as to costs at present.

Orders

  • The application to strike out passages in paragraphs 1-4 of the applicant's replying affidavit is dismissed.
  • The application to strike out the words in paragraph 5 of the replying affidavit of Christians is granted as hearsay.