IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
CAPE TOWN: Friday 3 May 2002
Before the Honourable Ms Justice Knoll

In the matter between:

And

Both Residing at 
6 Grace Road 
CLAREMONT 
Cape

Having heard the Legal Representative for the Applicant and having read the documents filed of record;

IT IS ORDERED:
(a) That the rule nisi granted on 12 July 2001 is made absolute and First and Second Respondent's estate is placed under Final Sequestration.
(b) That the costs incurred by the applicant in prosecuting this application, including the costs of all interlocutory applications, hearings and postponements which stood over, are to be costs in the sequestration and are to include the costs incurred by reason of the employment of two counsel.

BY ORDER OF THE COURT

COURT REGISTRAR
42 Fairbridges
CAPE TOWN

IN THE HIGH COURT OF SOUTH AFRICA 
CAPE OF GOOD HOPE PROVINCIAL DIVISION

								CASE NO: 6266/01

In the matter between:

and

RULING

OOSTHUIZEN A.J.:

The parties are agreed that there are two matters which should be disposed of at the outset and before argument is presented on the balance of the issues in dispute between them. The first of these matters pertains to the question of whether the applicant had established that the instant application was authorised by it.

2)	That he is employed by the Applicant as its Director: Finance and Administration;
3)	That he is duly authorised and able to depose to the affidavit, the contents whereof are within his personal knowledge save where otherwise indicated by the context;

Although the title attaching to Mr Hanke's position might create some confusion, he does not allege that he is a director of the Applicant in the normal sense of the word, ie. a member of the Applicant's Board of Directors. No allegation to such effect is found elsewhere in the Applicant's founding or replying papers. The Respondent points out that Mr Hanke is not a member of the Board of Directors (which fact appears to be common cause) but accepts that his job title is that of Director: Finance and Administration.

As regards the allegation that Mr Hanke is duly authorised, the First Respondent states the following in the replying affidavit:

"Respondents have no knowledge as to whether Hanke is duly authorised to depose to the founding affidavit on behalf of the Applicant, do not admit same and put Applicant to the proof thereof."

"Fairbridges are the duly appointed attorneys of record for Telecom Namibia Limited, the Applicant in this application".

"... the probabilities are that the bank (regarding the amount as due) wished to take steps to recover what is, after all, a large sum. And if this is so, Spencer would surely be the person who would act on behalf of the bank"

application to strike out paragraph 12.3 of the replying papers must succeed.

(

stands on a different footing. In the founding affidavit Hanke averred that the

First Respondent had accepted payment of unlawful and unauthorised commissions from an entity, Dresselhaus Scrap CC, with which the Applicant had business dealings. The Applicant had moreover adverted to the fact that the First Respondent had acquired certain assets which the First Respondent could not have financed from the income which the First Respondent received as an employee of the Applicant. The Applicant alleged that the acquisition of such assets was suspicious and required investigation in order to establish whether commissions improperly received by First Respondent had been used to fund the acquisition of those assets. In the First Respondent's answering affidavit, the First Respondent denied that he had received commissions from Dresselhaus or any other entity, and denied the suggestion that the acquisition of the assets referred to indicated any irregular conduct on his part.

Even if my aforementioned view is incorrect, and it were to be accepted that the allegations which the Respondents seek to raise do constitute new matter, a Court has a discretion to permit new matter in the replying papers. Such discretion is exercised the more readily where the facts sought to be adduced were not known to the Applicant when the founding papers were drawn

In the instant case the material sought to be introduced was not known to the Applicant at the time that the founding affidavits were finalised. Moreover, the Applicant has adopted the stance that the Respondents should be given an opportunity of dealing with the material introduced in the replying affidavits. In the circumstances, and if the material complained of is new matter, I am of the view that I should exercise my discretion and allow the averments in question to stand, affording the Respondents an opportunity to deal therewith.

I accordingly make the following order:

4)	Paragraph 12.3 of the replying affidavit is struck out;
5)	
6)	The costs of the proceedings on 23 October 2001 stand over for later determination.