National Director of Public Prosecutions v Napoleon and Others (3847/2015) [2019] ZAECGHC 119 (28 November 2019)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO. 3847/2015

In the matter between:

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

LIVINGSTONE NAPOLEON

First Respondent

INGRID NAPOLEON

Second Respondent

GIBRULTA NOLAN DAVIS

Third Respondent

SHANTA SHANA DAVIS

Fourth Respondent

GLADWIN NAPOLEON

Fifth Respondent

JUDGMENT

Bloem J.

1. This is an application to strike out approximately 22 paragraphs of the third respondent’s supplementary answering affidavit. During May 2017 the third and fourth respondents instituted an application for an order that they be granted leave to deliver supplementary answering affidavits in the main application.

Attached to that application was the third respondent’s affidavit titled “supplementary affidavit in terms of rule 6(5)(e) of the Uniform Rules of Court.” That subrule gives a court a discretion to permit the delivery of further affidavits. Despite opposition by the applicant, on 20 March 2018 Molony AJ permitted the third and fourth respondents to “supplement their answering affidavits in the forfeiture application, in the manner set out in the founding affidavit in this application” and permitted the applicant to “deliver a supplementary replying affidavit upon the delivery of the respondents’ supplementary answering affidavits. The third respondent delivered his supplementary affidavit on 25 January 2019. It is in respect of that affidavit that the applicant sought an order that the above paragraphs be struck out.

2. The basis of the application to strike out the paragraphs in question was that they were not contained in “the supplementary affidavit, which was contained and annexed to their rule 6(5)(e) application” and “that approximately the first ten pages” of the third respondent’s answering affidavit “deal with issues that were not dealt with in the supplementary affidavit” upon which the third and fourth respondents relied to obtain leave to deliver the supplementary answering affidavits.

3. An application to strike out any matter from an affidavit is

regulated by rule 6(15) of the Uniform Rules of Court, which read as follows:

“The 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 may not grant the application unless it is satisfied that the applicant will be prejudiced in his case if it be not granted.”

4. An applicant for the striking out of any matter from an affidavit has to satisfy two requirements: firstly, that the matter to be struck out is scandalous, vexatious or irrelevant; and secondly, that the applicant must satisfy the court that he or she will be prejudiced if the matter is not struck out. In this regard Mahomed CJ had the following to say in Beinash v Wixley:[1]

“What is clear from this Rule is that two requirements must be satisfied before an application to strike out matter from any affidavit can succeed. First, the matter sought to be struck out must indeed be scandalous, vexatious or irrelevant. In the second place the Court must be satisfied that if such matter was not struck out the parties seeking such relief would be prejudiced.”

5. At the hearing Mr Wolmarans, the applicant’s attorney, conceded that the paragraphs sought to be struck out from the third respondent’s affidavit are neither scandalous nor vexatious.

He submitted that, although the applicant’s deponent did not refer to them as irrelevant, those paragraphs are indeed irrelevant.

I do not agree.

6. To deal with that submission reference has to be made to the factual background of this application which has, with respect, been correctly set out by Molony AJ in the judgment wherein she granted leave to the third and fourth respondents to deliver supplementary answering affidavits. The first 20 paragraphs thereof read as follows:

1. The applicant in this matter, who is the National Director of Public Prosecutions, seeks a forfeiture order against the respondents

in terms of section 48 of the Prevention of Organized Crime Act 121 of 1998 (‘POCA’).

2. The respondents are all related to each other and it is alleged that the first, second, third and fifth respondents are drug dealers

in East London, whilst the fourth respondent, who is the spouse of the third respondent, benefits from the proceeds of the drug trade engaged in by her husband.

3. On 28 July 2015 the applicant applied ex parte for a preservation order in terms of section 38(1) of POCA in relation to the following:

a. certain cash amounts (‘the cash’) found at the houses of the first and third respondents;

b. a small holding farm in Kei Road at 131 Fuller Street (‘the Kei Road property’); and

c. a trailer found at the property (‘the trailer’).

4. The preservation order was duly granted and served on the respondents, where after a forfeiture application followed.

5. The third and fourth respondents alone have opposed the forfeiture application.[2] The third respondent deposed to the relevant affidavits.

6. It is not in dispute that cash was found at the home of the third and fourth respondents[3], and that mandrax tablets were found in the trailer, which trailer was found on the Kei Road property.[4] This was the result of search warrants authorized after certain undercover operations were conducted by the police.

7. On 5 November 2015 the applicant filed its forfeiture application in terms of section 48 of POCA.

8. The third respondent filed their notice of intention to oppose the forfeiture application in affidavit form as contemplated in sections 39(3) and (5) of POCA, on 4 February 2016. I shall refer to the aforementioned as the ‘section 39 affidavit’.

9. Typically the section 39 affidavit would be filed prior to the forfeiture application being filed. The founding affidavit in

the forfeiture application would therefore address aspects raised by the respondents in the section 39 affidavit. The respondents

would then be in a position to answer to those averments, with the applicant thereafter replying.

10. Self-evidently, the section 39 affidavit was therefore filed later than it would ordinarily have been.

11. The third and fourth respondents then launched an application, filed on 11 August 2016, in terms of rule 35(12) (read with rule 30A), of the uniform rules of court, which in essence sought access to documentation relating to the undercover operations and search

warrants referred to above.

12. It appears that the rule 35(12) application thereafter fell away, as the third and fourth respondents obtained access to the documentation which they sought.

13. The third and fourth respondents then filed an answering affidavit in the forfeiture application on 21 April 2017.

14. On 9 May 2017 the applicant filed its replying affidavit in the forfeiture application.

15. On 25 May 2017 the applicant filed an application to strike out various portions of the third respondent’s answering affidavit

on the basis that the paragraphs referred to were based on information taken from secret documentation of the South African Police Services (‘the SAPS’), which documentation was obtained illegally. The documentation in question appears to have been what the respondents were seeking access to in the above-mentioned rule 35(12) application.

16. On 29 May 2017 the third and fourth respondents filed their own application to strike out a significant number of averments contained

in the applicant’s replying affidavit.

17. The nature of the applicant’s reply to the answering affidavit furthermore prompted the third and fourth respondents to launch an application, in terms of rule 6(5)(e) of the uniform rules of court, for leave to file a supplementary affidavit to their answering affidavit. This application was filed on 30 May 2017.

18. It was decided, given the various interlocutory applications mentioned above, that the applications to strike out would be heard

first. Depending on the outcome of those applications, the application in terms of rule 6(5)(e) would follow. Once the rule 6(5)(e) application had been decided, the matter would be ready for argument in terms of the main forfeiture application.

19. This court, after hearing argument in relation to both applications to strike out, dismissed both applications with costs.

20. What this court is therefore now required to decide is the outcome of the rule 6(5)(e) application (in which the third and fourth respondents, having already filed their section 39 affidavit, as well as their answering affidavit in the forfeiture application)

seek leave to file a supplementary affidavit.

7. The above facts must be read with the developments that occurred after the delivery of the judgment of Molony AJ, which developments have been set out above.

8. At the hearing Mr Wolmarans was invited to show in what manner the paragraphs which the applicant sought to be struck out of the third respondent’s answering affidavit were irrelevant. That invitation was extended to him because it was not submitted in the applicant’s heads of argument, drafted by Mr Wolmarans, that those paragraphs were irrelevant. I shall return to the applicant’s heads of argument.

9. Mr Wolmarans was unable to show how those paragraphs were irrelevant, other than to repeat that they were not contained in the affidavit which served before Molony AJ. Mr Wolmarans was also invited to show how the applicant would be prejudiced if those paragraphs were not struck out. Not surprisingly, no such prejudice could be shown. In any event, I am not satisfied that the applicant will be prejudiced if the relief sought in this application (to strike out the above paragraphs) were not granted. In all the circumstances, the application must be dismissed.

10. The preparation of heads of argument requires thought, care and application to ensure that they serve their purpose.[5] The critical purpose that heads of argument serve was dealt with by Marcus AJ in S v Ntuli[6] when he said:

“Heads of argument serve a critical purpose. They ought to articulate the best argument available to the appellant. They ought to engage fairly with the evidence and to advance submissions in relation thereto. They ought to deal with the case law. Where this is not done and the work is left to the Judges, justice cannot be seen to be done. Accordingly, it is essential that those who have the privilege of appearing in the Superior Courts do their duty scrupulously in this regard.'

11. The heads of argument delivered on behalf of the applicant were nothing but a regurgitation of the facts of the application. Not a single submission, based on law, was contained therein. Those heads of argument were most unhelpful. They “were not worthy of the name and were of no use at all. … They failed to engage with … the law.”[7]

12. The general rule is that costs must follow the result. There is no reason to deviate from the general rule, with the result that the applicant must pay the costs of this application.

13. In the result, it is ordered that the application be and is hereby dismissed with costs.

________________________

G H BLOEM

Judge of the High Court

For the applicant:

Mr Wolmarans of NN Dullabh & Co,

Grahamstown.

For the third and fourths respondents: Adv R Liddell, instructed by Liddell, Weeber & van der Merwe Inc, Wynberg and Netteltons Attorneys, Grahamstown.

Date heard:

21 November 2019.

Date of delivery of the judgment:

28 November 2019.

[1] Beinash v Wixley [1997] ZASCA 32; 1997 (3) SA 721 (SCA) at 733A-B.

[2] Final forfeiture has since been granted (by default) in relation to the rest of the respondents.

[3] Although the total amount found is in dispute.

[4] The third respondent denies any knowledge in this regard.

[5] Southern Cape Car Rentals CC t/a Budget Rent a Car v Braun 1998 (4) SA 1192 (SCA) at 1196B.

[6] S v Ntuli 2003 (4) SA 258 (W) at para 16.

[7] Feni v Gxothiwe and another 2014 (1) SA 594 (ECG) at para 7.