Shilengudwa and Another v Prosecutor-General and Another; In Re: Shilengudwa v Shilengudwa (HC-MD-CIV-MOT-POCA-2018/00140) [2025] NAHCMD 189 (22 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING

Case No: HC-MD-CIV-MOT-POCA-2018/00140

INT-HC-OTH-2024/00438

In the matter between:

MARTIN NANDE SHILENGUDWA 1^ST APPLICANT

HILMA DALONDOKA SHILENGUDWA 2^ND APPLICANT

and

THE PROSECUTOR-GENERAL RESPONDENT

and

THE PROSECUTOR-GENERAL APPLICANT

In re:

MARTIN NANDE SHILENGUDWA 1^ST RESPONDENT

HILMA DALONDOKA SHILENGUDWA 2^ND RESPONDENT

Neutral citation Shilengudwa v The Prosecutor-General (HC-MD-CIV-MOT-POCA-2018/00140) [2025] NAHCMD 189 (22 April 2025)

Coram: MASUKU J

Heard: 20 March 2025

Delivered: 22 April 2025

Flynote: Applications – Application for leave to file further affidavits – Civil Procedure

– Rule 66(2) of the High Court Rules – An applicant seeking leave to file further affidavits must provide a satisfactory explanation – There must be special circumstances pleaded – there must be no possibility of prejudice – A reasonable explanation has been tendered by the applicants – PG will be able to deal with contents of affidavits, aiding the court in fully assessing the forfeiture application – Little prejudice suffered – Applicants have met the requirements of rule 66(2).

Summary: This is an application for the court to permit the applicants to file further affidavits in the forfeiture application. The applicants had initially filed affidavits, but new facts were uncovered during a civil trial, particularly concerning the authorisation of a property sale by the Minister of Finance, which was crucial to the forfeiture application. The applicants argued that they could not present these facts earlier due to financial hardship and other legal proceedings, including challenges to a preservation of property order.

The Prosecutor-General opposed the application, contending that no satisfactory explanation for the delay has been provided, and that the proposed affidavit lacks relevance to the issues in the forfeiture proceedings. The court set out three factors to determine whether the applicants should be allowed to file further affidavits: (i) whether there was a reasonable explanation for the delay, (ii) whether special circumstances justified the indulgence, and (iii) whether the respondents would suffer prejudice.

Held that: the Prosecutor-General would not be prejudiced because she would have the opportunity to respond to the new affidavit. The court also emphasised that the need for fairness and a full presentation of the case outweighed procedural technicalities.

Held further that: the decision reflects a judicial focus on ensuring substantial justice, where both parties are given the opportunity to present all relevant material.

Held that: the applicants’ explanation of financial hardship due to frozen bank accounts, and ongoing litigation, was deemed reasonable. There are special circumstances, as the applicants were unaware of the change in the Minister of Finance’s stance regarding the authorisation of the sale of the property to BIPA. This new information emerged during a civil trial and was vital to the applicants' defense in the forfeiture proceedings. The Prosecutor-General will not suffer significant prejudice, as she will have a chance to respond to the further affidavit.

Application for leave to file a further affidavit granted.

ORDER

1. The applicants are granted leave to file the further affidavit which is annexure

'A', to place the facts set out in the further affidavit of Martin Nande, Shilengudwa, before court.

2. The Prosecutor-General is afforded a period of fourteen (14) days within which to file her answer to the said affidavit, if so advised.

3. In the event there is a need to reply to the Prosecutor-General's affidavit in answer, the applicants shall file their affidavit in reply, if any, within a period of ten (10) days from the delivery of the Prosecutor-General’s affidavit in answer.

4. The Prosecutor-General is ordered to pay the costs of this application but not subject to the provisions of rule 32(11) and such costs are to be consequent upon the employment of one instructing and one instructed legal practitioner, where so employed.

5. The interlocutory application is removed from the roll and is regarded as finalised.

RULING

MASUKU J:

Introduction

1. This is another instalment in the running battles between the applicants and the respondent. In the latest bout between the parties, the applicants Mr Martin Nande Shilengudwa and his wife, Mrs Hilma Dalondoka Shilengudwa, have approached this court essentially seeking an order granting them leave to file a further affidavit in order to place further facts before the court in addition to the affidavit of the first applicant before court.

2. Needless to say, this application is vigorously opposed by the respondent, the Prosecutor-General of Namibia. The matter has been opposed on every conceivable front, including on matters of substantive law but more importantly, on procedural grounds.

3. In the premises, the remit of this court is clear. It is to determine whether the applicants have made a proper case for the relief sought. This question will be decided particularly in relation to the burden that is placed on a party such as the applicants, to file a further affidavit. In this regard, reference shall be made to the authorities applicable in such matters.

The parties

4. The first applicant is Mr Martin Nande Shilengudwa, as stated above. The second applicant is Mrs Shilengudwa, the wife to the first applicant. The respondent is the prosecutor general of Namibia (PG), cited in her capacity as such. I shall refer to the applicants as such and to the respondent as the PG.

5. The applicants were represented by Mr Heathcote, whereas the respondent was represented by Mr Budlender. The court accordingly records its appreciation to counsel on both sides for the able assistance assiduously rendered to it in the determination of this unusual matter. That fact that there is no mention of the particular counsel and the scholarly and compelling argument they advanced on behalf of the protagonists, should not in any manner, shape or form, be considered as a negative reflection on the dedication and force with which the arguments before court were presented.

Background

6. The PG, in 2018, obtained a preservation of property order in terms of s 51 of POCA. The order was granted in respect of a positive balance in accounts held by the applicants. It is unnecessary, for present purposes, to traverse the entire spectrum of matters and issues that arose, including the intervening applications that took place. It needs to be mentioned though that at a later stage, and in line with the provisions of s 59 of POCA, as read with the other provisions of POCA, the applicants were required to file an affidavit in respect of their opposition of the forfeiture of property application that the PG applied for.

7. The applicants contend that after their affidavit opposing the forefeiture order, was filed, new facts have arisen and which would justify that they be granted an opportunity to file a further affidavit to place these new facts before court. In this way, so contend the applicants, the court would be placed in a position to fully understand every available and relevant fact that must be taken into account by the court deciding the fate of the forfeiture of property application lodged.

The application

8. The applicants have attached, to the application, an affidavit marked 'A', which they seek to be incorporated and read together with the entire contents of the affidavit previously filed opposing the forefeiture application. It is their prayer that this affidavit be incorporated by reference and should be read as part and parcel of this application.

9. The applicants depose that the affidavit in question, contains facts which were confirmed under oath and oral evidence adduced in a trial under case number HC –MD –CIV –ACT –DEL –2018/02104, (the 'BIPA case'). They depose that this case went on trial from 5 to 16 February 2024.

10. It is their deposition that in the case, the Minister of Industrialisation, Trade and Small and Medium Enterprise Development, the Minister of Finance and BIPA, are the plaintiffs. The ministers and BIPA sue the former chief executive officer of BIPA, Mr Andima and the applicants, for recovery of the purchase price of N$18 million paid to the applicants in respect of a sale of immovable property that was sold by the applicants to BIPA.

11. The applicants alleged that the proceedings in the said action, are tantamount to an abuse against them. The applicants allege further that there are affidavits, which were filed by Messrs Sinimbo, Sholongo, Namundjebo and Minister Schlettwein and that these affidavits were confirmed under oath in the oral testimony of Messrs Sinimbo and Namundjebo in the BIPA case. They contend however, that in the POCA case, Minister Schlettwein, however repudiated the version of the three witnesses at the time that the application for preservation of property order was heard and also in the pending application for the forfeiture of property application.

12. The applicants allege further that at the trial of the BIPA case, and in support of the plaintiffs' case, the Minister of Finance and Messrs Shilongo, Sinimbo and Namundjebo testified and confirmed the exact testimony in their witness statements, which they confirmed by affidavit in the POCA application. The material difference was only in respect of Minister Schlettwein, who was not called as a witness in the case. The applicants allege that in the BIPA case, the Minister of Finance actually relied on the evidence of the named witnesses Messrs Shilongo, Sinimbo and Namundjebo, to again claim the amount of N$18 million from the applicants.

13. The applicants further state that they have complied with all the requirements for the granting of an application in terms of rule 66(2) of this court’s rules. They allege that there are special circumstances in this case and that they have provided a proper and satisfactory explanation as to why the affidavit was not put up earlier. They further allege that there is no prejudice to be suffered by the PG in the event the court grants the application prayed for.

14. Regarding why the evidence sought to be now included was not put up earlier, the applicants depose that a judgment was delivered by a full bench of this court on 11 August 2023, which they understood would work in their favour in that an amount of N$800,000, would be released to them. A request for this amount from the PG was not responded to. On 8 September 2023, the PG noted an appeal against the said judgment of the full bench. An argument, by the applicants, to the effect that in terms of the law, where a declaration of unconstitutionality has been found, an appeal against that finding, does not stay execution of the judgment, was not availing as the PG refused to release the money notwithstanding the favourable decision of the full bench.

15. The applicants alleged that as a result of the fact that their money for the purchase of the property and other money which was in their accounts, was preserved, they did not have money at their disposal in order to instruct legal practitioners to move an application for the release of the funds in question. The applicants say that they were also facing the civil trial in respect of which they were required to pay a deposit for legal fees, including overdue legal fees in relation to the previous proceedings.

16. The first applicant deposes that he could not raise enough money to pay all the overdue legal fees and the amount owed in relation to the civil trial. This necessitated that he sells some of his cattle in order to raise money for legal fees. It is the applicants’ case that they were not able to bring this application earlier owing to the fact that they did not have enough money at their disposal to bring this application, considering that they were caught in the crosshairs of a number of legal proceedings at the same time.

17. The applicants further depose that the PG filed a notice of intention to amend her notice of motion in the forfeiture application. This was to make provision for the various possible outcomes of the appeal to the Supreme Court against the judgment of the full bench. The applicants contend that they did not have the amount of money required to instruct their legal practitioners to oppose this amendment to the notice of motion. They chose to deal with the amendments in the future application.

18. The applicants further deposed that before 28 March 2024, they were advised that they would be dealt a huge injustice if they did not seek leave from this court to put up the new facts that had taken place in relation to the BIPA case. The applicants accordingly depose that they had brought this application as soon as possible after the 32(9) proceedings were completed. Attempts to file the affidavit sought to be introduced by the applicants by consent of the parties, did not bear fruit, culminating in the need to bring this substantive application.

The respondent's case

19. The PG, in her answering affidavit, takes the position that the applicants have failed to set out a proper case in their founding affidavit for the relief they seek, namely the admission of the further affidavit. The PG points out that a party in the applicants' position, essentially seeks an indulgence from the court and that the court can only exercise its discretion in favour of such a party, where a reasonable explanation has been given for the relief sought. The PG submits that there are no good reasons advanced for the bringing of this application at such a late time in the day, so to speak.

20. The PG takes a further point that when regard is had to the contents of the affidavit in question, the issues raised therein must be relevant to the determination of the main application, namely the application for forfeiture of property. They contend that the issues raised in the affidavit sought to be introduced, bear no relevance to the questions to be decided in the forfeiture application. The point is further made that the applicants must explain why this information could not be placed before court at an earlier stage and in this regard, the application is lacking.

21. Another complaint by the PG is that the affidavit sought to be introduced, is 23 pages long and has 697 pages attached to it as annexures. It is however unclear whether the applicants also seek the pages attached to the affidavit to be also admitted as evidence in the main application. If that would be the case, further contends the PG, the applicants make no attempt to indicate why those documents are relevant to the issues for determination in the main application. The PG thus contends that the inclusion of these 697 pages is abusive and vexatious and for that reason, the application must be dismissed.

22. In relation to the involvement of Minister Schlettwein in this matter and the evidence that he tendered in the forfeiture application and his role, if any in the BIPA case, the PG contends that no allegation is made to the effect that the said Minister adduced contradictory evidence to that he had tendered in the forfeiture application. The PG points out that it would seem, although she is not involved in the BIPA case, that the Minister was not called as a witness in the said action. The Minister could thus not have made a volte face in connection with his evidence previously tendered in the forfeiture application. It is the PG's further contention that other than the about-turn ascribed to the Minister, the relevance of the other documents attached to the affidavit has not been explained.

23. It is further contended by the PG that this court should refuse this application because it is plainly one which is an abuse of the court processes. In this connection, the PG contents that this application for leave is to introduce further evidence as a vehicle to make a wide ranging attack on the conduct of the plaintiff in the civil trial. Through that attack, further contends the PG, the applicants seek to impugn her conduct in the POCA proceedings. It is her case that she is not the plaintiff in the civil trial, as the trial was instituted by the Ministers of Industrialisation, Trade and SME Development and the Ministry of Finance, together with BIPA.

24. Further complaints by the PG are too numerous to deal with individually. I will however, include the following, which is by no means exhaustive of the challenges made by the PG to the contents of the applicants founding affidavit in the current proceedings. The complaints include the following:

1. That the transcript of the civil proceedings has not been attached to the application to confirm the evidence alleged to have been tendered in the civil trial, according to Mr Shilengudwa;

2. The applicants allege there is some evidence that was adduced during the civil trial and which is relevant to the forfeiture application and which was previously unknown to them. That evidence is however not identified;

3. The applicants have failed to produce the pleadings and the evidence in the civil trial, which they claim amounts to an abuse of power and process by the State. The PG points out that the civil proceedings in question, were instituted more than three years ago but there is no explanation from the applicants as to why the pleadings and the evidence alleged to have been tended in the civil trial ,have not been disclosed to the court;

4. The applicants complain that BIPA is using the property in respect of which the civil proceedings have been instituted but the applicants failed to explain the relevance of this fact to the forfeiture application. If indeed that information is irrelevant, a lingering question is why this information was not included in the applicants answering affidavit or at some other stage before the launching of this application;

5. The applicants make reference to the constitutional challenge and the appeal to the Supreme Court but failed to explain the relevance of that application in the pending Supreme Court appeal to the issues to be decided eventually at the hearing of forfeiture of property stage of the proceedings;

6. That the applicants alleged that the state will, as a result of the civil action, appropriate their property without compensation but the relevance of this allegation is not in any way linked to the forfeiture of property application;

7. That the applicants have attached the witness statement of Ms Katjiuonga, which was uploaded on the eJustice on 12 October 2021. It is pointed out that that statement is not made under oath and the record of the cross-examination of that witness is not attached.

The applicants' reply

25. As a general note, the applicants take issue with each and every allegation, denial and assertion made by the PG in her answering affidavit. In this regard it is unnecessary to traverse the various averrals and denials made by the applicants in relation to the answers provided by the PG in her answering affidavit. I will deal with only but a few.

26. Regarding the involvement of the former Minister of Finance, the applicants contend that the said Minister gave an affidavit to the PG in support of the POCA application and the Minister was her witness. In this regard, the Minister is only a call away and the PG was at liberty to establish from the Minister whether what is contended in this application about the Minister's about turn by the applicants, is correct or not. There is thus no merit to the PG’s feigned ignorance of the role of the Minister in the BIPA action.

27. The applicants deny that this application amounts to an abuse of process at all. They contend that the person who is abusing the court process is the PG. Regarding the Minister of Finance disavowing evidence that was placed before this court in the POCA application, the applicants contend that the PG chose when to rely on that evidence and when not to, depending on the conveniences of the moment. The applicants depose that it is important for the court to be apprised about the stance of the minister in the forfeiture application about the decision of the Minister not to follow the stance that he had in the POCA application.

28. Regarding the transcript, the applicants depose that when they filed the application, they were not in possession of the transcript of proceedings in the civil trial. In any event, the applicants deny that they were required to annex the transcript of the oral testimony adduced in the civil trial to their founding affidavit in this application. The applicants point out, that if the PG had been bona fide, she would have requested a copy of the transcript of the civil proceedings during the rule 32(9) and (10) engagements between the parties.

29. The applicants further state that at the time the preservation proceedings were instituted by the PG, the resolution of the BIPA Board authorising Mr Andima to enter into the agreement with the applicants regarding the sale of the property, must have been available to the PG. The applicants contend that inexplicably, this crucial evidence was not disclosed at the material time and only surfaced during the BIPA action. The applicants state that they are dumbfounded by the stance of the PG in opposing the introduction of this evidence, including the resolution, which was unknown to the court at the time when the preservation of property order was granted.

The applicable law

30. It seems to me that there is no unanimity regarding whether the applicants have met the test to enable them to obtain the order they seek. There is, however, no dispute regarding the principles applicable to the application. What I need to point out, is that the applicants, in their founding affidavit, place reliance for this application on the provisions of rule 66(2) of this court’s rules. I deal with that provision in the case cited below.

31. The applicable law was aptly summarised in the case of Kapia v Minister of Urban and Rural Development.¹ There the court said the following:

‘[12] It is trite that in motion proceedings, evidence must be led before courts by way of affidavit. The affidavits are limited to three sets. These affidavits are supporting affidavits, answering affidavits and replying affidavits. If a party requires the filing of further affidavits, leave must be sought from the court to do so.

[13] The practice in respect of filing affidavits in application or motion proceedings has been developed by various decisions over time and was previously not that formulated by the rules of court or statutes. That position was, however, remedied by rule 66(2) of the Rules of Court, which reads as follows:

'(2) The applicant may, within 14 days of the service on him or her of the affidavit and documents referred to in sub rule 1(b), deliver a replying affidavit and the court may in its discretion permit the filing of further affidavits.'

[14] In Fisher v Seelenbinder, Ueitele J discussed the filing of further affidavits as follows:

"[17] It is trite that in motion proceedings the ordinary rule is that three sets of affidavits are allowed, i.e. the supporting affidavits, the answering affidavits and the replying affidavit. In the matter of Ritz Reise (Pty) Ltd v Air Namibia (Pty) Ltd, this court stated that it may in its discretion permit filing of further affidavits. Quoting from the South African cases of Juntgen T/A Paul Juntgen Real Estate v Nottbusch, it said:

"Generally a Court has a discretion, which is inherent to the just performance of its decision reaching process, to grant that relief which is necessary to enable a party to make a full representation of his true case."

[18] In the matter of Maritima Consulting Services CC v Northgate Distribution Services Ltd, the Court held that leave to file further affidavits by a party will be granted only in special circumstances or if the court considers such a course advisable. Thus, the filing of further answering affidavits will be permitted, where for instance, ' there is a possibility of prejudice to the respondent if further information is not allowed'"

[15] In the Namibian Competition Commission v Puma energy (Pty) Ltd, Ueitele J expanded the issue of "special circumstances" and prejudice call ma but more importantly, the discretion of the court and discussed it as follows:

[11] In the South African case of James Brown and Hamer (Pty) Ltd v Simmons NO the court said:

"It is in the interests of the administration of justice that the well-known and well-established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say those general rules must always be rigidly applied: some flexibility, controlled by the presiding judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both the late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the court: he must both advance his explanation of why the affidavit is out of time and satisfy the court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy nor desirable.'"

[12] The above principle was endorsed by this court when it held that leave to file further affidavits by a party will be granted only in special circumstances or if the court considers such a course advisable. Thus, the filing of further answering affidavits will be permitted where, for instance "there is a possibility of prejudice to the respondent if further information is not allowed." The court will allow the filing of further affidavits only in exceptional circumstances and will expect an explanation as to why the filing of further affidavits is necessary.'

[13] The court exercises a judicial discretion when it considers whether or not to allow the filing of a further affidavit. In the exercising of the discretion, the court essentially asks the question, ' do these circumstances of the case demand the filing of an additional affidavit? The authorities that I have perused indicate that special circumstances have been held to exist and a departure from the general rule has been allowed where there was something unexpected in the applicant's replying affidavits or where a new matter was raised therein and also where the court desired to have fuller information on the record.

[14] Where, however, there is a possibility of prejudice to the respondent if further information is not allowed the court will, so the learned authors Herbstein and van Winsen say, admit the father affidavits. There must, however, be a proper and satisfactory explanation which negatives mala fides or culpable remissness as to the cause of the facts or information not being put before the court at an earlier stage and what is more important is that the court must be satisfied that no prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs.

[16] A party seeking to introduce further affidavits in motion proceedings is seeking the court’s indulgence. In the matter of Bangtoo Bros and Others v National Transport Commission and Others, the court held that where supplementary affidavits do not deal with new matters arising from the reply by an applicant all evidence which came to the attention of the parties subsequent to the filing of their affidavits, the parties seeking the indulgence must provide an explanation which is sufficient to assuage any concern that the application is mala fide or that the failure to have introduced the evidence in question is not due to a culpable remissness of such party.

[17] ...

[18] I am of the view that the findings that this court needs to make in the current instance are threefold, namely: a) whether the applicants made out a case for special circumstances which allow the granting of the order sought; b) whether a reasonable explanation was advanced as to why the facts or information not being put before Court at an earlier stage, and lastly if the respondents would suffer prejudice if the court grants the application.' See also PG v Gustavo.²

Discussion

32. It is not necessary, having regard to what has been stated above, to regurgitate everything everything stated in the quotation above. It would seem to me, to cut the matter to the chase, an applicant for the exercise of the court's discretion to be allowed to file further affidavits, will have to satisfy the court: (a) that there is a reasonable explanation as to why the information sought to be conveyed in the affidavit was not provided earlier and at a more propitious time; (b) there must be special circumstances pleaded, which suggest that the granting of that indulgence would be a proper exercise of the court's discretion in the circumstances; and (c) that there is no possibility of prejudice, not compensable in costs inuring to the respondent if the application is granted.

33. What must not be allowed to sink into oblivion, is that the court should consider exercising its discretion in a manner that ensures that a party is able to make a full and true representation of its case. Furthermore, the court considers the issue of prejudice. In this case, the prejudice will have to be considered in respect of both parties. There will be cases where prejudice might result if the court allows the application and also those cases where prejudice will eventuate if the court refuses the application. In this regard, the court must carefully weigh where prejudice lies in the circumstances of the entire case. At the end of the day, the exercise of the court's discretion, is a case-specific enquiry that should take into account all the circumstances attendant to the matter, both the merits and the demerits of the entire case. Those will accurately map out how the court can properly exercise its discretion and judiciously so.

34. In dealing with the question of prejudice, I must not be understood to be downplaying the importance of the explanation proffered by the applicant for the court to exercise its discretion in his or her favour. An applicant who rests on his or her laurels by allowing time and opportunity to pass by, without tendering any reasonable explanation, should not expect the court to exercise its discretion in his or her favor out of sympathy or the bowels of mercy. It must not be lost to litigants, that courts are expected to deal with matters before them and to finalise them within a reasonable time. Where there is no reasonable explanation and a lot of time has passed by without the application being brought, the court is unlikely, depending on the circumstances, to exercise its discretion in that applicant's favour.

35. The explanation proffered by the applicants in this matter, is that there are new facts that have arisen since the time they filed their affidavits in the forfeiture of property proceedings. This, they contend, came about during the civil trial involving BIPA, wherein the Minister of Finance appears to have parted ways with the evidence he adduced before this court and on the basis of which the preservation of property order was issued. The applicants contend that in the said application, the Minister unequivocally gave evidence to the effect that the sale of the property by the applicants to BIPA, was unauthorised. This, clearly suggested that something seriously untoward, if not illegal, had taken place between BIPA and the applicants, culminating in the sale of the property.

36. The applicants contend that the tergiversation by the minister, regarding the authorisation by the BIPA board to buy the applicants' property, was not placed before the court during the preservation of property proceedings. They contend that placing facts which were uncovered during the civil trial could assist the court in properly appreciating the full circumstances of the sale and might be handy in properly considering the application for forfeiture of property.

37. When regard is had to the respondent's contentions advanced in opposition of the application, it appears that most of them are technical knock-out complaints, largely based on issues of procedure. For instance, the respondent complains about the attachments to the affidavit and the lack of identity of the documents attached to the affidavit on which the applicants rely. The respondent further complains about the fact that the respondent was not party to the civil proceedings and is unaware as to what transpired during the proceedings. Furthermore, the respondent complains about the transcript of proceedings not having been attached to the founding affidavit or at least availed to the respondent earlier. This also includes questions about whether the first applicant, in adducing evidence regarding what happened during the civil trial, was actually in attendance or he relies on some other information.

38. I am of the considered opinion that in dealing with these matters, the court must properly balance the interests of the parties involved. A highly fastidious and overly technical approach to these matters sometimes may easily degenerate and become a cradle of injustice. This must be avoided at all costs, remembering that at the end of the day, the remit of the court is to deliver substantial justice in the matter, having full regard to the attendant facts and circumstances.

39. The applicants, in explaining the delay in bringing this application, state that they did not have the funds necessary to bring the application at a more appropriate time. This they attribute largely to the fact that the money they had at their disposal in their bank accounts, was frozen at the time that the preservation of property order was issued. This did not end there. They brought proceedings before this court challenging the constitutionality of the definition of proceeds of crime in which they succeeded. This would ordinarily have resulted in the money that was held in their bank accounts before the proceeds of sale were added being available to them for use, including funding their defence and filing the application.

40. The applicants contend that their attempt to derive the benefits of the judgment of a full bench of this court, ring hollow because an appeal was lodged against the said judgment and a favourable declarator by this court to the effect that the PG’s appeal does not stay execution in the applicant's favour, was vigorously resisted by the PG. It is now history that the Supreme Court ultimately found in favour of the applicants regarding the amount that mingled with the proceeds of sale.³

41. I am of the considered view that the explanation tendered by the applicants in this matter meets the test. In this regard, the applicants depose that all the money they had at their disposal was exhausted by these proceedings and the civil action. As a result, they had to resort to selling livestock in order to place themselves in a position where they could pursue these proceedings and contemporaneously defend themselves in the civil action. It is not lost to the court that the provisions of POCA can at times be virulent and readily affect the rights and interests of the subject. The applicants were not spared in this regard and any attempt by them to benefit from favourable orders by this court, met a blank.

42. I am, in the circumstances, of the considered opinion that a reasonable explanation has been tendered by the applicants. It has been said that money is the answer for everything.⁴ Circumstances brought about by the sale of the property of the respondents and the preservation of property order directly posed questions to the applicants and which they had no answer, because they had no money.

43. Turning to the special circumstances in this matter, I am of the considered opinion that the applicants did not know that there would be a change of front, particularly by the Minister of Finance regarding the issue of whether there was proper authorisation by the board of BIPA to buy the property from the applicants. It cannot be denied that when the preservation of property order application was launched, the evidence before court stated in clear terms that there was no proper authorisation for the sale of the property.

44. It was only during the BIPA civil trial that it seemed the issue of authorisation, on the basis of which previous POCA orders were issued, was departed from. It then seemed during the civil trial that the question of whether the authorisation by the BIPA board regarding the sale of the property, was no longer an issue. It is the applicants case that it is in the interest of justice for this affidavit to be placed before court so that when the forfeiture of property application is considered by the court, they have an opportunity to place this evidence before court and the court will make its decision based on a full and frank appraisal of all material relevant to the question before it.

45. In the instant case, the applicants contend that the preservation of property order was placed before court on an ex parte basis and some evidence was placed before court suggesting that there was impropriety surrounding the sale of the property to BIPA. They are in my view correct that the revelations that took place during the civil trial regarding the authorisation of the sale of the property to BIPA, should be brought to the attention of the court when it deals with the forfeiture of property proceedings. This will be done by allowing this affidavit to be introduced.

46. This court is not entitled to second-guess what the PG's position and answer to the contentions by the applicants to the information sought to be brought by this affidavit, will be. It is not desirable for this court, at this juncture, to seriously interrogate the possible strengths or weaknesses, questions and answers to the issues that will be raised in the affidavit sought to be introduced and to make concrete findings thereon. I am of the view that the PG will have an opportunity to deal with the contents of the affidavit and this will conduce to the court having a full conspectus of the facts relevant to the determination of the applicant for forfeiture of property.

47. I now turn to deal question with the last question. This relates to the issue of prejudice. The applicants contend that if the court were to exercise its discretion against them in this application, some injustice and prejudice will be visited on them. This is because if this affidavit is excluded, the court will not have at its disposal all the relevant material it may ultimately need in order to justly decide the question of the forfeiture of the property application. I am of the considered opinion that that there might be prejudice that will be visited on the applicants if this application, on the facts of the matter, is refused.

48. For the respondent, however, I am of the considered opinion that there is little prejudice to be suffered other than a delay in the final determination of the application for forfeiture of property order. I say this because the PG will have an opportunity to fully respond to the affidavit and will be entitled to address all issues that arise from the affidavit. I can mention that because of the issues involved in this matter, and the enormity of the issues implicated, there would be little injustice done to the respondent, if any, considering all the issues that have arisen and occupied the court's attention, resulting in the delivery of not less than six judgments and rulings over the years.

49. I will end where I began, by referring to relevant case law. In Milne NO v Fabric House (Pty) Ltd⁵ the following was stated, although in reference to an application for provisional sentence:

'In my view it is neither necessary nor desirable to say more than that the court has a discretion, to be exercised judicially upon a consideration of the facts of each case, and that basically it is a question of fairness to both sides. This, on the one hand it is right that a plaintiff should have his speedy remedy of the procedure of a provisional sentence; and if a third set of affidavits is introduced, where will the line be drawn? The court will weigh all the facts and do what it thinks is fair to both sides'

[50] In Amadee v Fidele and Others⁶ the following principles can be extrapolated and which are relevant in this case:

‘[79] Flowing from the above and other authorities, the legal position can therefore be summarised as follows:

1. Allowing the filing of further affidavits is not a right that a party has, but an indulgence from a Court in the exercise of its discretion.

2. Rule 6(5)(e) establishes clearly that the filing of further affidavits is only permitted with the indulgence of the court. A court, as arbiter. Has the sole discretion whether to allow the affidavits or not. A court will only exercise its discretion in this regard where there is good reason for doing so.

3. The material sought to be raised in the supplementary affidavit must be relevant to the issues for determination of the main claim or application.

4. In exercising its discretion, the court will do so with a measure of flexibility, taking into account all the facts of the case and in further consideration of what is fair to the parties.

5. Leave to file further affidavits, out of sequence, may be allowed, for example, where there was something unexpected in the applicant’s replying affidavits or where a new matter was raised, or where the information /evidence was not available to the respondent (or could not be made available) when the founding affidavits were filed and before the answering affidavits could be filed. Even then however, the party seeking to supplement his affidavit must give a satisfactory explanation which negatives mala fides or culpable remissness as to why the information/evidence could not be put before the Court at an earlier stage.’

[51] Having due regard to the facts and circumstances of the instant case, I am of the considered opinion that the factors to be taken into account for the court to exercise its discretion, as discussed in the immediately preceding paragraph, have been met by the applicants herein. A reasonable explanation has been tendered and I am satisfied that the evidence sought to be introduced, is relevant to the question for determination of the application for forfeiture of property. I am also of the considered opinion that the PG will not be prejudiced as she will be afforded an opportunity to deal with the additional affidavit.

Conclusion

[52] In view of what has been stated above, I come to the considered opinion that despite the prodigious fight put up by the PG, I am of the considered opinion that this is a proper case, despite any demerits that they may attach to the applicants’ case, for this court to grant the application. I am of the opinion that the applicants have met the requirements of rule 66(2), as explained in several judgments of the courts.

Costs

[53] I now turn to the question of costs. The applicants seek costs which are not subject to the provisions of rule 32(11). Correspondingly, the PG seeks an order for costs to be granted in her favour in the event the application is decided favourably to her. In like manner, the PG, in the event the court finds in her favour, asked for costs not to be capped in terms of rule 32(11).

[54] In SA Poultry Association of South Africa v Ministry of Trade and Industry,⁷ the court expressed the view that rule 32(11), was designed to discourage a multiplicity of on interlocutory motions, which often increase costs and hamper the court from speedily dealing decisively with the real issues in dispute. In the instant case, as was in the SA Poultry case, I am of the considered view that the parties are litigating with equality of arms and at full throttle. Furthermore, the court in the SA Poultry case, stated that ‘it will be a weighty consideration whether both crave a scale above the upper limit allowed by the rules’.⁸ I find this to be the case herein.

[55] I am of the considered opinion that although the applicants were essentially seeking an indulgence from the court, I do not think that all things considered, there were substantial and compelling legal grounds for the PG to oppose this application. I am accordingly of the considered opinion that the ordinary rule should apply, namely that costs should follow the event.

Order

[56] In the premises, the following order is therefore granted:

1. The applicants are granted leave to file the further affidavit which is annexure

'A', to place the facts set out in the further affidavit of Martin Nande, Shilengudwa, before court.

2. The Prosecutor-General is afforded a period of fourteen (14) days within which to file her answer to the said affidavit, if so advised.

3. In the event there is a need to reply to the Prosecutor-General's affidavit in answer, the applicants shall file their affidavit in reply, if any, within a period of ten (10) days from the delivery of the Prosecutor-General’s affidavit in answer.

4. The Prosecutor-General is ordered to pay the costs of this application but not subject to the provisions of rule 32(11) and such costs are to be consequent upon the employment of one instructing and one instructed legal practitioner, where so employed.

5. The interlocutory application is removed from the roll and is regarded as finalised.

____________

T S Masuku

Judge

APPEARANCES

APPLICANTS: Mr. Heathcote SC, (With him Mr J Jacobs)

Instructed by: Van der Merwe, Greef, Andima, Windhoek.

RESPONDENT: GM Budlender SC (With him M Boonzaier)

Instructed by: Office of the Government Attorney