IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
-£B1VAATSAK/PRIVATE BAta X^
19S3 -11- h ~
BBAAMFONTE1N2017_
In the matter between:
THE PRESIDENT OF THE REP1
THE MINISTER OF SPORT AND RECREATION THE DIRECTOR GENERAL OF SPORT AND RECREATION
CASE NO: 16/98
First Appellant Second Appellant
Third Appellant
and
THE SOUTH AFRICAN RUGBY FOOTBALL UNION THE GAUTENG LIONS RUGBY UNION
THE MPUMALANGA RUGBY UNION DR LOUIS LUYT
First Respondent Second Respondent Third Respondent Fourth Respondent
FILING NOTICE
DOCUMENT
FILED BY
FURTHER ANSWERING AFFIDAVIT BY SECOND AND FOURTH RESPONDENTS
Attorney for the 2nd and 4th Respondents ROOTH & WESSELS
First National Bank Building 1st Floor
Church Square PRETORIA
REF: Dr D H Botha/L.5062 TEL: 325-2940
TO THE REGISTRAR OF THE CONSTITUTIONAL COURT OF SOUTH AFRICA
BRAAMFONTEIN, JOHANNESBURG
Copy hereof received this _ day of NOVEMBER 1998.
AND TO : THE STATE ATTORNEY, JOHANNESBURG c/o STATE ATTORNEY, PRETORIA
Attorney for 1st, 2nd and 3rd Appellants Fedsure Forum
South Tower 4th Floor
cnr Van der Walt and Pretorius Streets PRETORIA
REF : JM/29/AD 10183/97/J7
STAATSPROKUREUR
PRIVAATSAK/PRIVATE BAG X91
1998 -II- 0 3
PRETORIA
STATE ATTORNEY
Copy hereof received this _ day of NOVEMBER 1998.
AND TO : DE KLERK & VAN GEND INC.
Attorney for 1st and 3rd Respondents 3rd Floor, 132 Adderley Street Volkskas Building
Cape Town
c/o TIM DU TOIT AND CO. INC Volkskas Building
19th Floor
230 Van der Walt Street PRETORIA
Copy hereof received this ^>.
day of NOVEMBER 1998.
SONOER BEHADELEN6 VA« REGTE
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between:
THE PRESIDENT OF THE RSA
THE MINISTER OF SPORT AND RECREATION THE DIRECTOR GENERAL OF SPORT AND RECREATION
CASE NO : 16/98
First Appellant Second Appellant
Third Appellant
AND
THE SOUTH AFRICAN RUGBY FOOTBALL UNION
THE GAUTENG LIONS RUGBY UNION THE MPUMALANGA RUGBY UNION LLUYT
First Respondent Second Respondent Third Respondent Fourth Respondent
FURTHER AFFIDAVIT BY SECOND AND FOURTH RESPONDENTS
I, the undersigned.
LOUIS LUYT hereby make oath and say:
1.
1.1. I depose to this affidavit in both my personal capacity as well as
in my capacity as President and duly authorised representative of the Second Respondent, now Golden Lions Rugby Union.
1.2. The facts contained in this affidavit are, to the best of my knowledge, true and correct and save where otherwise stated, fall within my personal knowledge.
1.3. I have read the First and Second Appellants' replying affidavits in their application for condonation and I deem it necessary to comment on certain incorrect factual statements made by the said Appellants.
1.4. I have been advised that the general rule is that only three sets of affidavits are permitted, but that the Court may in its discretion permit further affidavits to be filed. I submit that the explanation for the necessity to file a further affidavit appears fully from the facts set out herein below. I furthermore submit that it is fair and just that permission be granted for this affidavit to be filed and that Appellants are not prejudiced thereby.
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2.
AD PARAGRAPH 3.2 THEREOF:
2.1. I deny that the letter dated 11 September 1998, addressed to the Registrar of the High Court Transvaal Provincial Division and annexed as Annexure "RA2" "was also copied to Dr Lust's attorneys".
The first knowledge I or my attorney had of the said letter, was when I read Appellants reply and my Attorney received the said reply on 26 October 1998.
2.2. I furthermore refer the Honourable Court to the affidavit by my attorney, D H Botha, filed herewith and attached hereto as Annexure "LL1".
2.3. On 28 October 1998, a letter dated 11 September 1998, addressed to the Registrar of the Constitutional Court, was received by my attorneys of record, a copy whereof is annexed to the affidavit by D H Botha, Annexure "LL1" hereto. In regard to the last paragraph contained in such letter, I deny that an agreement was ever entered into as alleged. I furthermore submit
that it is imperative that the application before De Villiers J should be dealt with prior to Appellants' application for condonation,.
3.
AD PARAGRAPH 5.6 THEREOF:
I submit that it is abundantly clear that the statements referred to in paragraph 6.3 of my answering affidavit are not restricted to "the resolution
of the most recent dispute".
AD PARAGRAPH 8.2 THEREOF:
2.4. Appellants are fully aware thereof that the other causes of action were never by implication dismissed by the Court of first instance.
Appellants are fully aware thereof that these issues were not considered and dismissed before the application was referred to evidence. I furthermore deny that the referral to evidence wculd not have been competent as alleged by Appellants.
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2.5. 1 furthermore refer the Honourable Court to a copy of the relevant Court Order made by de Villiers J. on 5 February 1998 annexed hereto and marked as Annexure "LL2".
AD PARAGRAPH 5.6
I deny that a delegation from the NSC called on the President on 22 May 1998 with the SARFU Executive. In this regard I respectfully refer the Honourable Court to the Affidavit by Mr H.J. Erasmus an Executive Member of SARFU and the President of the Mpumalanga Rugby Union attached hereto as Annexure "LL3".
DEPONENT: L LUYT
I certify that on the 3 day of NOVEMBER 1998 in my presence the deponent signed the affidavit and declare that he:
(b) has no objection to taking this oath;
(c) considers the oath to be binding on his conscience;
and uttered the words: "I swear that the contents of this affidavit are true, so help me God".
COMMISSIONER OF OATHS EXOFFICIO: ^ctr
FULL NAMES:
ADDRESS:
AANKLAGiC\NTOOR
!3 -11- 0 3
CHARGE OFFICE JHPPE
SOUTH AFRiCAM POLICE SERVICE
U
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
In the matter between:
THE PRESIDENT OF THE RSA
THE MINISTER OF SPORT AND RECREATION THE DIRECTOR GENERAL OF SPORT AND RECREATION
AND
THE SOUTH AFRICAN RUGBY FOOTBALL UNION
THE GAUTENG LIONS RUGBY UNION THE MPUMALANGA RUGBY UNION LLUYT
CASE NO : 16/98
First Appellant Second Appellant
Third Appellant
First Respondent Second Respondent Third Respondent Fourth Respondent
SUPPORTING AFFIDAVIT
I, the undersigned.
DAVID HERCULES BOTHA hereby make oath and say:
1.
1.1 I am the attorney of record for Second and Fourth Respondents in this application.
1.2 The facts contained in this affidavit fall within my personal knowledge and are true and correct.
1.3 I have read the further affidavit by Dr Louis Luyt and I confirm the facts as set out in paragraph 2 thereof.
2.
2.1 On 26 October 1998 Appellants' reply in the application for condonation was delivered on our offices.
2.2 In paragraph 3.2 of Second Appellant's affidavit, as confirmed by First Appellant, reference is made to Annexure "RA2" and the fact that as appears from this letter, it was allegedly also copied to Dr Luyt's attorneys on 11 September 1998.
2.3 In view thereof that the relevant letter dated 11 September 1998 and addressed to the Registrar, High Court, Transvaal Provincial Division had not been received by our office, I made certain enquiries as more fully appear from a letter dated 27 October
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1998 and addressed to the State Attorney, a copy whereof is annexed hereto as Annexure "DHB1".
2.4 On 27 October 1998 I hand delivered Annexure "DHB1" to Ms R Hall of the State Attorney's office. She explained to me that there was no proof that the letter, Annexure "RA2" was delivered to Rooth and Wessels, but it had been put in their postal system and not delivered.
2.5 On 28 October 1998 I received a letter by post also dated 11 September 1998 addressed to the Registrar of the Constitutional Court. A copy of this letter is annexed hereto as Annexure "DHB2".
2.6 As appears from the envelope containing Annexure "DHB2", a copy whereof is annexed hereto as Annexure "DHB3". The letter dated 11 September 1998 addressed to the Registrar of the Constitutional Court [Annexure "DHB2"] was posted on 26 October 1998.
2.7 In view thereof that my letter dated 27 October 1998 [Annexure
"DHB1"] had not been answered, I requested Mr K. Meier of the
State Attorney's office and Appellants' attorney of record to respond thereto and on 29 October 1998 pursuant to a telephone call I called on the offices of the State Attorney where I personally collected a letter dated 29 October 1998, a copy whereof is annexed hereto as Annexure "DHB4".
2.8 With reference to the last paragraph contained in Annexure
"DHB2" I deny that there was ever an agreement as alleged. I furthermore submit that the decision by De Villiers J in regard to the application for the certificate should firstly be dealt with prior to the application for condonation.
3.
3.1 On 30 October 1998 I addressed a letter to the Registrar of the Constitutional Court in response to the letter attached hereto as Annexure "DHB2". This letter was served by me on the Registrar of the Constitutional Court and the State Attorney on 2 November 1998. A copy of this letter is attached hereto as Annexure
"DHB5" and was also served on the State Attorney.
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4.
From the aforesaid it appears that:
4.1 Annexure "RA2" was not delivered to our office and I was therefor not aware of its contents as alieged by Appellants.
4.2 The letter dated 11 September 1998 that I did receive on 28 October 1998 is not a copy of Annexure "RA2".
4.3 The relevant statements contained in paragraph 3.2 of Second Appellant's affidavit, are not correct.
DEPONENT: D H BOTHA
I certify that on the *^> day of NOVEMBER 1998 in my presence the deponent signed the affidavit and declare that he:
(a) knows and understands the contents thereof;
(b) has no objection to taking this oath;
(c) considers the oath to be binding on his conscience;
and uttered the words: "I swear that the contents of this affidavit are true, so help me God".
COMMISSIONER OF OATHS EX OFFICIO:
FULL NAMES:
ADDRESS:: 0^5-
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RQOTH S^VESSELS
Church Kerkplein
Since
Sedert
1889
Attorneys Notaries & Conveyancers Prokureurs Notarisse & Transportbesorgers
THE STATE ATTORNEY FEDSURE FORUM
4th FLOOR
VAN DER WALT & PRETORIUS STREETS PRETORIA, 0002
BY HAND
Our flef/Ons Verw
DR D H BOTHA/Cynihi* Potaeter L.5062
First National Bank Building Church Square Pretoria 0002 P O Box 208 Pretoria 0001 Eerste Nasionale Bankgebou Kerkplein Pretoria 0002 Posbus 208 Pretoria 0001
DX2 Pretoria Tel Ad Rooth or/of Justitia Pretoria Tel Nat/Nas (012) 325 2940
Fax Nat/Nas (012) 323 0344 & 324 4501
Fax FNB Deeds Sect. / ENB Aktes Afd (012) 325 1864 lntTel+27 12 325 2940
Int Fax +27 12 323 0344 & 324 4501 E-Mail/E-Pos- [email protected]
Date/Datum
27 October 1998
Your Ref/U Verw
MR K MEIER 29/AD/10183/97/J7
Dear Sir
RE : THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA & OTHERS AND THE SOUTH AFRICAN RUGBY FOOTBALL UNION & OTHERS -
CASE NO. 16/98
In your clients* replying affidavit Mr Tshwete refers to a letter emanating from your office, a copy of which we attach hereto. Kindly provide us with the following information :
1. When was this letter delivered to Rooth & Wessels;
2. Who delivered the letter to Rooth & Wessels and what was the time when it was delivered;
3. Who received the letter on behalf of Rooth & Wessels;
4. Proof that this letter was delivered to Rooth & Wessels.
We have no record of receiving such a letter and look forward to hearing from you by return post.
Yours faithfully
Also at/Ook te Arcadia, Centurion, Menlyn (Pretoria) & Vsndsrijijlpsr*
Psrtnen/Vannatt: J Lutog SCom LLB H Op Tax L G T Wessels BA LL3 P. M remit B i LL3 J R G Poison BA LLB H Dip Tax LLM J N J van Rensbuig BCom BProc P G B a m B A L L 5 A T W d e H e r k B A L L B L L M D H Botha BA LLB LLD H Dip Tax LLM J A C n s n 3 C o r r - . l L B E J Naude BProc LLB S B van der Merwe BCornm O B A B Tvan derHoven BProc J G de Jager BSc Blur S F de Beer BCom LLB G F Grressel BLC LLB LLM J J J van 3=r Westhuiien BLC LLB C R Botha Blur LLB LLD H Basson BLC LLB
Assodatts/Assosiate: N K Petzar BProc E J J Geyser BLC LLB J P BtiQraLi SIu" LLB A T Lamey BLC LLB A Livereage BLC LLB LLM MBA G J CasseHs BLC LLB E J F Smit.BCo' Assisted by/Byg«3tsan dmur. A Boraine Blur LLB LLM LLD A Btoem 3LC LL3 D Piesras BLC LLB LLM L U Weidemann BLC LLB C Rcwsoow BA LLB L A M e y e , M A L Phakeng BProc S R Rossouw BA LLB LLM
Consuinnt/Konsutlant R Gerke O p Proc
Van der Walt Street PRETORIA, 0002
0001
Navrae:
Enquiries: MS R HALL/02 310 2736
« (012) 310 2788 FAX {012)322 0177 DOCEX: 298
11 SEPTEMBER 1998 My Verw
My Ref 70/1O183/J7 U Verw.
Your Ref.
BY HAND The Regtetfar
Constijd^'onal Court JOHANNESBURG
SARFU AND OTHERS / PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS
We are the attorneys of record in the above matter for the President of the Republic of South Africa, the Minister of Sport and the Director General of Sport.
On behatTof our clients, in terms of section 172(2){d) of the Constitution and Rule 15 of the Constitutional Court Rules, we have lodged a notice of appeal to the Constitutional Court against the order handed down in this matter by de Villiers J on 17 April 1998.
In terms of Rule 18 of the Constitutional Court Rules, we have also applied to the Transvaal Provincial Division for a Rule 18(6) certificate in anticipation of an application to the Constitutional Court for leave to appeal directly to it against e number Gf other orders handed down by de Villiers J in the course of the above matter ("the remaining orders"). The remaining orders were not themselves orders in terms of section 172(2) of the Constitution, but were all orders incidental or related to the principal order of constitutional invalidity of the President's appointment of a commission of enquiry.
For the information of your Court we enclose a copy of our clients' application in terms of Rule 18. The application will, of course, be filed with your court
as /...
Haal altyd my verwysingsnommer aan / Always quote my referenc&numbe
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as part of our clients' application for leave to appeal, once de Villiers J has issued his certificate in terms of Rule 18(6).
As can be seen from the application in terms of Rule 18, the issues covered by the proposed appeal in respect of the remaining orders are all issues which will be raised independently in the appeal in terms of section 172(2) of the Constitution against the principal order of invalidity. Nor will they affect the record that must be prepared in respect of the principal appeal. The parties are agreed the appeal against the principal order of invalidity concerns matters of national importance, and that there is some urgency in providing for the final determination of the appeal. We do not know when de Villiers J will be in a position to issue his certificate in respect of the appeal against the remaining orders. Under the circumstances we would ask that the process of giving directions in respect of the principal appeal should not be delayed until de Villiers J has issued a certificate in respect of the appeal against the remaining orders.
RHALL
FOR: STATE ATTORNEY (PRETORIA)
— \ Messrs Rooth and Wessels First Floor
First National Bank Building Church Square
PRETORIA 0002
Sirs
YOUR REFERENCE: BOTHA/S10375 Copy for your information.
urs faithfully
R HALL
FOR: STATE ATTORNEY (PRETORIA)
