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IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION) CASE NO: 2075/07

In the matter between:

RAVINDAR HURRICHARAN FIRST APPLICANT

RANESHAN MOONASUR SECOND APPLICANT

MOONASUR HURRICHARAN THIRD APPLICANT

RAJESHAN MOONASUR FOURTH APPLICANT

ANIL MADANGITH FIFTH APPLICANT

SHARMAN BALRAJ SIXTH APPLICANT

GANS TOURS CC SEVENTH APPLICANT

and

THE MINISTER OF SAFETY AND SECURITY FIRST RESPONDENT

COMMISIONER OF THE SOUTH AFRICAN

POLICE SERVICES, EASTERN CAPE SECOND RESPONDENT

INSPECTOR J P LOURENS THIRD RESPONDENT

JUDGMENT

DAMBUZA J:

1. On 20 September 2007 the applicants launched this application, on an urgent basis, seeking release of certain vehicles from police custody. On 21 September 2007 an order was granted for the release of the vehicles in question from police custody; the respondents having consented to such release. The terms of the order were:

1.1 That the respondents consent to the release of the vehicles identified in paragraph 23 of the founding affidavit pending the finalisation of this application;

1.2 That the applicants undertake to co-operate fully with the South African Police Service in respect of the investigation relating to the vehicles referred to above;

1.3 That the applicants undertake not to tamper with any evidence related to the investigation;

1.4 That the applicants undertake to preserve and keep vehicles referred to safe pending the finalisation of this application;

1.5 That the applicants record that all the vehicles referred to are fitted with Altech Netstar satellite tracking devices and undertake to maintain this service pending the finalisation of the application;

1.6 That the applicants undertake not to operate vehicles T27, T28 and T46 until such time as they have been roadworthied;

1.7 That the respondents are to file answering affidavits, if any, by 1 October 2007 and the applicants are to file replying affidavits, if any, within the time period allowed by the rules;

1.8 That the matter is postponed to 1 November 2007 and the questions of urgency and costs are reserved.

2. The respondents brought an application to have certain portions of the applicants’ replying affidavit struck out from the record.

3. The first applicant is the sole member of a close corporation known as Hurrichanan Cartage CC (the close corporation). The first, second and fourth applicants are brothers. The third applicant is their father. The fifth applicant is employed by the close corporation as a foreman. The sixth and seventh applicants are described in the founding affidavit as subcontractors to the close corporation at a site in the Coega Industrial Development Zone in Port Elizabeth.

4. In October 2006, the close corporation was awarded a tender by the Basil Read Newport Construction Joint Venture (the Joint Venture) for earthworks to be done within the Coega Industrial Zone. In terms of the tender, the close corporation was to supply to the Joint Venture tipper trucks with a capacity of 10m³ for a period of 20 months. The number of the trucks supplied by the close corporation was initially eight. It increased over time and, by the time the cause of action in this matter arose, the close corporation had 24 trucks on site. It appears that when the close corporation was awarded the tender by the Joint Venture, it (the close corporation) entered into a subcontract with the applicants (who are owners of the vehicles in question), in terms of which the applicants provided their trucks to the close corporation presumably for performance in terms of the tender.

5. On 5 September 2007, members of the South African Police Services, led by the third respondent came to the site whereon the applicants’ trucks were working and started examining the engine, chassis and kerb numbers as well as licence discs of the 24 trucks that were on site at the time. They then seized 18 of the trucks and instructed the drivers employed by the close corporation and/or the applicants to drive the trucks to the Uitenhage Police Pound. Two of the trucks had to be towed to the police pound.

6. The complaints by the police in respect of the trucks included unclear chassis numbers (or chassis numbers that appeared to have been tampered with or removed) on the drivers’ cabin, licence disc numbers that did not correspond with the chassis numbers and absence of cabin tag numbers (and/or tag numbers that appeared to have been tampered with).

7. On 6 September 2007, the first and second applicants started discussions with the police, furnishing information and documents required by the police in an effort to have the vehicles released. The documents included registration documents of the impounded vehicles and loan or finance agreements from financial institutions in respect of some of the trucks. They explained the history of ownership of each of the vehicles as the police required. When the discussions failed to yield positive results for the applicants, they approached their attorneys with the intention of launching this application. By the time the application was launched six of the confiscated trucks had been released from police custody.

8. As I have stated on 21 September 2007, the order sought by the applicant was granted with the consent of the respondents. In the order of 21 September the applicants, undertook to co-operate with police investigations in respect of the trucks and to ensure that satellite tracking devices fitted in the vehicles remained active. The respondents, however, persist in their opposition to the application. They contend that the seizure and attachment of the vehicles was justified; it having resulted from complaints made to the police regarding the safety of the vehicles and discrepancies between the chassis numbers and licence discs on some of the vehicles. In this regard they rely mainly on Section 20 of the Criminal Procedure Act 51 of 1977 together with Section 68 (6) of the National Road Traffic Act 93 of 1996.

9. The respondents contend in limine, that the applicants have failed to show that the matter was urgent and plead moreover that the applicants failed to afford them 72 hours notice as required in terms of Section 35 of the General Law Amendment Act 62 of 1955. I first deal with the points in limine raised.

URGENCY:

10. It is trite that urgency in urgent applications, involves mainly the abridgment of times prescribed by the rules and the departure from the established filing and sitting times of the Court. Luna Meubel Vervaardigers (Edms) Bpk v Makin & Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 136 H. It is also trite that urgency does not only relate to some threat to life and liberty; urgency of commercial interests may justify approaching the Court on an urgent basis no less than other interests. Twentieth Century Fox Film Corporation & Another v Anthony Black Films ( Pty) Ltd 1982 (3) SA 582 (W) AT 586 G; Bandle Investments (Pty) Ltd v Registrar of Deeds 2001 (2) SA 203 (SECLD). There are degrees of urgency. Consequently the Courts deal with the question of urgency according to the merits of each case. The degree of relaxation of the rules and of the ordinary practice of the Court depends on the degree of urgency of each matter. On the other hand where a matter lacks the requisite degree of urgency, the Court can, for that reason alone, strike the application from the roll.

11. Rule 6 (12) of the Rules of this Court provides that an applicant in an urgent application is obliged to explain clearly, in the founding affidavit, the circumstances which render the matter urgent and the reason why he or she claims that he or she cannot be afforded substantial relief in a hearing in due course. See also the Luna Meubel Vervaardigers case (supra) at 137 (F).

12. According to the Notice of Motion the application would be heard on 21 September 2007 at 09:30. The application was served at the offices of the legal department of the South African Police Services at Uitenhage on 20 September 2007 at 15H45 and on the State Attorney on the same day at 14H50 for the third respondent and 16H13 for the first respondent. The Notice of Motion directed the respondents to file their Notice to Oppose the application by the end of the business day on 20 September 2007 and to file their opposing affidavits on 28 September 2007.

13. It is apparent from the founding papers that the vehicles were seized whilst at work at the Coega site. The applicants explain in the founding papers, and it is not disputed, that the close corporation charged the Joint Venture on an hourly basis for trucks, and that in the preceding months the close corporation had earned an average income of R858 785.00 per month. The applicants’ ownership of the trucks is also not in dispute. Although there is no evidence on how much the applicants charged the close corporation for the trucks, I am satisfied that they derived an income from providing the trucks to the close corporation. They explain that they continued to lose income whilst the trucks were in police custody. The applicants were therefore prejudiced as a result of the seizure of the trucks, for they would not be able to provide the trucks to the close corporation and would thus not be able to meet their obligations under the subcontract whilst the trucks were in police custody. Consequently, the applicants had the necessary locus standi to launch this application.

Even if I am wrong in concluding, as I have, that the locus standi of the applicants has been sufficiently established on the papers, the first applicant, as the sole interest holder in the close corporation, had the necessary locus standi launch the application. The fact that the close corporation did not approach the Court for the release of the trucks did not detract from the applicants’ right to do so.

14. When the application was launched the trucks had been in police custody for about 14 days. Attempts by the applicants to furnish the police with the required information and to explain the reasons why there appeared to be discrepancies in the chassis and tag numbers of the trucks had not yielded positive results. According to the applicants the discrepancies on the truck details resulted from either the fact that the trucks had been rebuilt and/or the cabins thereof had been replaced or bodyworks had been effected on the trucks. They supplied to the police the particulars of previous owners of the vehicles and proof that some of the vehicles were financed by commercial banks and had been bought at marked related prices.

15. The applicants explain further that the contract between the Joint Venture and the close corporation was likely to be extended; this depended, amongst others, on the Joint Venture’s satisfaction with the manner in which the close corporation performed its obligations under the contract. The extent to which the close corporation was able to meet its obligations depended, largely, on the applicants’ ability to avail the trucks to the corporation and indirectly, to the Joint Venture. Contrary to the submission on behalf of the respondents, I am satisfied that the continuous loss of revenue by the applicants and the close corporation rendered the matter urgent.

WHETHER THE APPLICATION SHOULD BE DISMISSED FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SECTION 35 OF THE GENERAL LAW AMENDMENT ACT 62 OF 1955:

16. In response to the submission, on behalf of the respondent that the application falls to be dismissed for failure to comply with the legal requirement of giving the respondents notice of 72 hours as stipulated in Section 35 of the General Law Amendment Act, Mr Van Der Linde SC, submitted, on behalf of the applicants that the order which the applicants sought in this application was not a “rule nisi”. He submitted further that even if Section 35 (of General Law Amendment Act) was applicable, the respondents had waived their rights in respect thereof. I do not agree that the respondents necessarily waived their rights under Section 35 of the General Law Amendment Act or any other law by consenting to the order of 21 September 2007. They might have consented to the release of the trucks for reasons unrelated to the defences available to them. They were consistent in opposing to the application and raised the points in limine at the first opportunity. The fact that they had, by that time, consented to the release of the trucks does not, in my view, constitute waiver of their rights or of defences available to them in law. More so that the trucks were released on specific conditions.

17. Section 35 of the General Law Amendment Act provides that:

“Notwithstanding anything to the contrary contained in any law, no court shall issue any rule nisi operating as an interim interdict against the Government of the Union including the South African Railways and Harbours Administration or the Administration of any Province, or any Minister, Administrator or other officer of the said Government or Administration in his capacity as such, unless notice of intention to apply for such rule, accompanied by copies of the petition and of the affidavits which are intended to be used in support of the application, was served upon the said Government, Administration, Minister, Administrator or officer at least seventy-two hours, or such lesser period as the court may in all the circumstances of the case consider reasonable, before the time mentioned in the notice for the hearing of the application.” (My emphasis).

18. Section 35 is peremptory. See: Maharaj Bros v Pieterse Bros Construction (Pty) Ltd & Another 1961 (2) SA 232 (N) at 235. It appears that the purpose of the section is to allow government departments and officers time to investigate the claim of the applicant in order to decide whether or not to concede to it. See: Maharaj’s case (supra) at 236 H.

19. As to whether the order granted by the court on 21 September 2007 was a rule nisi operating as an “interim interdict”, in Maphanga v Officer Commanding, SAP Murder and Robbery, Pitermaritzburg and Others 1995 (4) SA 1 (A) at 18I–19 B Corbett CJ stated that:

“In terms, s 35 applies only to an application for a ‘rule nisi operating as an interim interdict’. The term ‘rule nisi’ is derived from the English law and practice, and the rule may be defined as an order by a Court issued at the instance of the applicant and calling upon another party to show cause before the Court on a particular day why the relief applied for should not be granted (see Van Zyl’s Judicial Practice 3 ed 450 et seq; Tollman v Tollman 1963 (4) SA 44 (C ) at 46H. Walker’s Oxford Companion to Law sv ‘nisi’, states that a decree, rule or order is made nisi when it is not to take effect unless the person affected fails within a stated time to appear and show cause why it should not take effect. As Van Zyl points out, our common law knew the temporary interdict and a ‘curious mixture of our practice with the practice of England’ took place and the practice arose of asking the Court for a rule nisi, returnable on a certain day, but in the meantime to operate as a temporary interdict.” (My emphasis).

20. Paragraph 1 of the order of 21 September 2007 (and the Notice of Motion) states that the order would operate “pending the finalization of the application”. It is true that, strictly speaking, the order sought did not take the conventional form of a rule nisi in that it entitled the applicant to immediate return of the vehicles that had been seized by the police. The order would not only be operative at some future date, after the respondents had had time to show cause why it should not be granted. In this sense the interdict was not a rule nisi. On the other hand, the fact that it would operate “pending the finalization of the application” implies that its operation was for a limited period and was subject to confirmation or discharge on finalization of the application. The order further constituted substantive relief and sought to maintain the status quo ante, which are typical features of interim interdicts attached to rule nisi. In this sense the order can be viewed as an interim interdict. My view is that the applicants were obliged to comply with the provisions of Section 35.

21. The matter, however, does not end there. Section 35 gives discretion to the court to allow a lesser period of notice. In Maharaj’s case, Caney J held, at 235 that:

“We have to find the intention of the Legislature from the language it has used. Examining this, I think the question is concluded by the fact that a limited discretion is conferred on the Court, a discretion to allow a lesser period of notice. The implication is unavoidable that there is no discretion to dispense entirely with notice. That feature and the general tenor of the section show that the giving of the notice is obligatory.”

22. In this case, unlike the Maharaj and Maphanga cases (where the applicants obtained a rule nisi ex parte; See also: Jafta v Minister of Law & Order & Others [1991] ZASCA 1; 1991 (2) SA 286 (A), the application was served on the respondents on the afternoon preceding the date of set down. Given the urgency which I have already found to have existed, I consider the period of notice given to the respondents to have been reasonable. The third respondent was stationed at Uitenhage, a relatively short distance from Port Elizabeth where the office of the State Attorney is located. The vehicles had been in police custody for over two weeks. Prior to the launch of the application there had been discussions between the first and the second applicants on one side and the third respondent and other police officers involved in the matter on the other hand. Advocate Van Wyngaardt of the police services had also been party to the ongoing discussions. It is not in dispute that, during those discussions, the applicants together with their legal representatives had communicated to the third respondent and Advocate Van Wyngaardt that they intended to approach the court to seek an order for release of the vehicles which the police continued to impound. The respondents were therefore not taken by surprise when the application was launched.

23. In Maphanga’s, case the court held that account must be taken of the principle that a statutory provision which clogs or hampers the ordinary rights of an aggrieved person to seek the assistance of the courts should be restrictively construed and not be extended beyond its expressed limits. See also: Benning v Union Government (Minister of Finance) 1914 AD 180 at 185. I am of the view that the notice given by the applicants to the respondents constituted adequate compliance with the provisions of Section 35 of the General Law Amendment Act.

THE SEARCH AND SEIZURE OF THE VEHICLES:

24. The respondents rely on Section 20 of the Criminal Procedure Act No 51 of 1977 in their contention that they were justified in seizing the trucks without a warrant as they believed that an offence pertaining thereto had been or was being committed. Section 20 of the Criminal Procedure Act authorises the state to seize anything which is concerned in or is, on reasonable grounds, believed to be intended in the commission or suspected commission of an offence, or which may afford evidence of commission or suspected commission of an offence, or which is intended to be used or is, on reasonable grounds, believed to be intended to be used in the commission of an offence in the Republic or elsewhere. Section 22 of the Criminal Procedure Act authorises the police to search any person, container or premises without a warrant, for the purpose of seizing any article referred to in Section 20 of the same Act if the person concerned consents to the search for and seizure of the article in question, or if the person who may consent to the search of the container or premises consents thereto. It was submitted on behalf of the respondents that a warrant was not required for the search and seizure as the police were investigating complaints (lodged with Captain Barnard relating to the safety of the vehicles and discrepancies between chassis numbers and licence discs of some of the vehicles (offences under Section 68 (6) of National Road Traffic Act). In any event, so it was further submitted, “those present” on the site did not object to the search and the third respondent believed, on reasonable grounds, that a warrant would have been issued to him if he had applied for such warrant. “Those present” on the site are not identified. There is also no evidence on whether they were entitled to give consent to the search. The facts on which the belief that a warrant would have been issued, was based are also not set out in the papers. The respondents have therefore not established that they were entitled, under Section 22 of the Criminal Procedure Act, to conduct a search and seizure without a warrant.

25. Be that as it may Section 68 (6) of the National Road Traffic Act 93 of 1996, which the police believed was being contravened, provides that:

“No person shall -

1. with intent to deceive, falsify, replace, alter, deface, mutilate, add anything to or remove anything from or in any other way tamper with the engine or chassis number of a motor vehicle; or

2. without lawful cause be in possession of a motor vehicle of which the engine or chassis number has been falsified, replaced, altered, defaced, mutilated, or to which anything has been removed, or has been tampered with in any

other way.”

26. It is trite that the respondents bear the onus of proving that the search and seizure was justified under Section 20 of the Criminal Procedure Act (read with Section 68 (6) of the National Road Traffic Act)>. The respondents' case, as I understand it, is that the mere possession of the vehicles concerned was unlawful or was without lawful cause in that the chassis numbers thereon appeared to have been tampered with. The third respondent contends that an explanation relating to the discrepancies or what appeared to be discrepancies, and the history of ownership of the vehicles which was furnished by the first and second applicants might only serve to rebut the presumption in law of their knowledge that the chassis of the vehicles had been falsified. In this regard the respondents rely on Section 68 (7) of the National Road Traffic Act which provides that:

“(7) Where in a prosecution for a contravention of any provision of subsection (6) it is proved that a person was found in possession of a motor vehicle, the engine or chassis number of which has been falsified, replaced, altered, defaced, mutilated, or to which anything has been added or removed or has in any way been tampered with, it shall, in the absence of evidence to the contrary, be presumed that such person knew that any such act has been committed in respect of such a number with intent to deceive.”

27. This submission on behalf of the respondents, misses the point in my view. The presumption referred to in Section 68 (7) only comes into effect once it is proved that the numbers were falsified or tampered with. It has no application at the investigation stage. At this stage the respondents have to prove that their suspicion that the chassis numbers had been falsified with intention to deceive, was based on reasonable grounds. The offence under Section 68 (6) is possession of a motor vehicle of which, with intent to deceive, the engine or chassis number has been falsified etc or possession of such vehicle without lawful cause. Even if the chassis numbers appeared to the third respondent to have been tampered with, he had to have reason to suspect that the tampering had been intended to deceive or that the possession was without lawful cause. To come to that conclusion, the third respondent would have had to assess the circumstances surrounding the possession in addition to the mere appearance of the chassis or engine numbers.

28. A presumption that, once a chassis or engine number appears to be tampered with or altered, such possession is without lawful cause, as submitted by Ms Hartle on behalf of the respondents would, in my view, result in such absurdities as could not have been contemplated by the legislature.

29. In this case there is no evidence that the third respondent obtained or attempted to obtain an explanation regarding the circumstances surrounding possession of the vehicles prior to seizing them. The evidence is that, in the end, some of the vehicles were released without any investigations having been conducted on them.

30. An affidavit by a mechanical engineer, Johannes Marthinus Bekker, is part of the founding papers. On 4 September 2007, on the applicants’ instructions, Bekker investigated the originality of the chassis and engine numbers of 12 of the trucks that were seized by the police (six trucks having already been released by the police). He found the chassis and engine numbers on seven of the trucks to be original. He experienced a difficulty on two trucks in which he found the chassis number to be original but could not access the engine numbers. The tenth truck had been involved in an accident and the engine thereof had been re-manufactured. On the eleventh truck he could not read the last digit on the engine number as the engine had been re-manufactured and the engine number had been removed therefrom. On the twelve truck the chassis had been subjected to a severe etching process by the third respondent and his colleagues with the result that only the first five digits thereof were legible. The respondents’ own expert Christian De Wet Calitz reached the same conclusions as Bekker (albeit at a later stage).

31. Whilst Bekker conducted and concluded investigations on the truck on 14 September 2007, the police, having impounded the vehicles on 5 September 2007, had conducted investigations on only four of the vehicles at the time of the launch of this application. The police expert would only be available on 22 October 2007. I find no reason why the vehicles could not be released on the strength of the results of the investigations done by the applicants’ experts, moreso, that the whereabouts of the vehicles could always be tracked by means of the tracking devices fitted in the vehicles. In Choonara v Minister of Law & Order 1992 (1) SACR 239 (W) the court held that Sections 31and 20 of the Criminal Procedure Act were aimed at facilitating investigation and proof of some offence with which the article confiscated was connected, but the State had to act with reasonable expedition in instituting criminal proceedings; where time taken had become so extended as to constitute an act oppressive of the rights of the applicant without offering any real prospect of further advance by the State in the investigation and where the respondent had not shown that the applicant could not legally possess the vehicle, it had to be returned to him.

32. Having considered all these factors I am of the view that the respondents have not established that reasonable grounds existed for the suspicion held by the third respondent that the vehicles were concerned on the commission or suspected commission of any offence.

THE APPLICATION TO STRIKE OUT:

33. The respondents seek an order striking out the following paragraphs in the applicants’ replying affidavits:

33.1 In paragraph 31, the portion reading as follows:

“I am, however, astonished to note that the Third Respondent was accompanied by seven police officers who hold fairly senior positions within the South African Police Services for example Captain Somyale, Inspectors Pretorius, Blunden, Misizi, Matwa and Sergeants Matrass and Rademeyer. I do not believe that eight police officials, including the Third Respondent, would have been required to conduct the investigation into one truck overturning on the construction site. The only inference to be drawn from this is that the Third Respondent had already decided to conduct a search and seizure of vehicles owned by the Applicants.”

33.2 The sentence in paragraph 32 reading:

“This contradiction clearly indicates that the Third Respondent acted mala fides”

and

The phrase in the final sentence of that paragraph reading:

“. . . and clearly indicates that he acted mala fides in this matter”.

33.3 The extract in paragraph 34 reading as follows:

“This is once again indicative of the manner in which the Third Respondent has dealt with this entire matter. I must also add that the twelve cases of possession of possibly stolen motor vehicles would not have been registered if Advocate Van Wyngaardt had not insisted on the Third Respondent registering these twelve cases.”

33.4 The sentence in paragraph 37 reading as follows:

“The Third Respondent misleads this Honourable Court with regards to the allegations contained in this sub-paragraph.”

and

the further sentence reading:

“In light of the fact that the Respondents abused the usage of section 68(6)(b) of the NRTA is sufficient, which I am advised by my legal representatives, for a punitive costs order against the Respondents.”

33.5 The phrase in paragraph 38, on page 18 of the printed document, reading as follows:

“but I believe that the Respondents have abused the usage of this particular Section of the Constitution.”

6. The final sentence in paragraph 39 (introduction), reading as

follows:

“This is once again an indication of the Third Respondents’ arrogance and obstructive behaviour in dealing with this matter.”

33.7 The following extract in paragraph 40 under the heading Vehicle 7: (T19): Sixth Applicant’s vehicle:

“There are dealers in the Nelson Mandela Bay Area who would have assisted the Third Respondent in acquiring the information that he sought with regards to the MAN trucks, while the trucks were impounded. The Third Respondent failed to utilise this service. It once again goes to show that the Third Respondent was not serious about conducting his investigations into the said vehicles.”

33.8 The extract in paragraph 41 reading as follows:

“Under the circumstances the Third Respondent has been absolutely reckless in seizing the motor vehicles of the Applicants when he has not been in a position to establish that the vehicles have been tampered with. His reckless behaviour brings the South Africa Police Services name into disrepute.”

33.9 The entire contents of paragraph 55 which read as follows:

“Even though I or any of the other applicants were not arrested, I believe that Section 35 of the Constitution would have been applicable in that I should have been informed that I have the right to remain silent and to have a legal practitioner present before making a statement. (Neither) The third respondent nor any of the other officers including Sergeant Matrass explained this to me. The third respondent forced me to make a statement. He stated to me that if I co-operated with the police by giving a statement, he would release my vehicles.”

33.10 The phrase in paragraph 76 reading as follows:

“. . . which were mala fides.”

33.11 The extract in paragraph 77 reading as follows:

“It does not take a rocket scientist to realise the impact that the seizure had and the emphasis must be on the fact that the seizure of the vehicles are not supported at this stage by any hard evidence to support the Third Respondent’s assertions. The conduct of the Third Respondent is one of absolute recklessness which places the Respondents in a position that opens them up to a huge civil action for loss of income.”

33.12 Paragraph 78: The extract in this paragraph reading as follows:

“if we are contravening a law, then he has become a party to that contravention.”

33.13 The entire contents of paragraph 79 in which the applicants set out what transpired subsequent to the launch of this application and the agreement reached by the parties as embodied in the order of 21 September 2007. They also set out what they perceive to be a deliberate delay by the third respondent in having the vehicles released from police custody, despite having been alerted to the order soon after it was granted.

33.14 The phrase in the final sentence of paragraph 80 reading as follows:

“. . . that given the Respondents reckless and negligent handling of this matter.”

34. The basis on which the application is brought is that:

34.1 In respect of items 1, 3 to 5, 7, 11 and 12: these portions in the applicants’ replying affidavit are irrelevant and inadmissible in that they consist not of factual testimony but the applicants’ beliefs and opinions which are not related to the issues.

2. In respect of items 2 to 7, 8, 10, 11, 12 and 14 the respondents contend that these portions of the applicants’ replying affidavit constitute scandalous matter, are worded to be abusive or defamatory and portray the respondents, or at least the third respondent in a bad light.

3. In respect of items 9 and 13, the respondents contend that these paragraphs contain new matter which was not dealt with in the founding affidavit.

35. Rule 6 (15) of the Uniform Rules of this Court provides that:

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

36. The court has a discretion in an application to strike out matter from an affidavit. 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; second, the court must be satisfied that if such matter is not struck out, the parties seeking such relief would be prejudiced. See: Securefin Ltd v KNA Insurance & Investment Brokers (Pty) Ltd [2001] 3 ALLSA 15(T). It has been held that the procedure for striking out was not intended to be utilised to make technical objections which merely increase costs. See: Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund & Others 2007 (1) SA 142 (N) at 150 A-C.

37. Regarding the respondents’ objection to the first group of assertions in the replying affidavit it is true that these portions contain the applicants’ (or the first applicant’s) belief and opinions. I do not agree however, that such beliefs and opinions are unrelated to the issues in this case or that they side track from the main issue as submitted on behalf of the respondents. In essence the applicants, in these portions, reply to allegations in the respondents’ answering papers on what the respondents allege, led to the search and seizure. The belief and opinions expressed by the applicants are so expressed in the context of showing why the relevant allegations in the answering affidavit as to what led to the search and seizure cannot be true. Moreover, I am not persuaded that the respondents stand to suffer prejudice as a result of the portions referred to.

38. On the second group of assertions objected to, these were responses to explanations in the answering affidavit on why it was necessary for the police to continue to impound the vehicles. The applicants deny that there was any justification for continued seizure. I do not agree that the portions referred to are worded to be abusive or defamatory and to portray the respondents in bad light. I am also not persuaded that the respondents stood to suffer prejudice as a result of the allegations complained of.

39. I do not agree that item 9 contains new matter. The applicants were responding to a denial by the third respondent, in the answering affidavit, that he influenced the making of a statement by the first applicant to the police. The first applicant had, in the founding affidavit alluded to making the statement to the police. In the portion objected to, the first applicant points out that the insistence by the police, that he makes the statement was improper.

40. The contents objected under item 13 could not have formed part of the founding affidavit as they relate to what transpired subsequent to the granting of the order of 21 September 2007. The averments objected to were a reply to the belief expressed in the answering affidavit by the third respondent that he still believed that the applicants were not entitled to the (unlawful) possession of the vehicles.

41. For these reasons the application to strike out cannot succeed.

42. Having regard to the importance of this matter to the applicants I am satisfied that use of two counsel was a wise and reasonable precaution.

Consequently the following order shall ensue:

1. The application to strike out is dismissed with costs;

2. The order of 21 September 2007 is confirmed. The respondents are held jointly and severally liable for payment of the applicants’ costs of the main application, such costs shall include the costs of two counsel. In the event of one of the respondents paying such costs the other(s) shall be absolved from payment thereof.

_________________________

N DAMBUZA

JUDGE OF THE HIGH COURT

Applicants’ Counsel: Adv Van der Linder SC

Adv Pillay

Applicants’ Attorneys: Burmeister De Lange Inc

29 Mount Road

Mount Croix

PORT ELIZABETH

Ref: Mr V Naidu/me/H768

Respondents’ Counsel: Adv Hartle

Respondents’ Attorneys: State Attorney

29 Western Road

Central

PORT ELIZABETH

Ref: 1231/07/K

Heard on: 21 September 2008

Delivered on: 10 June 2008

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