IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT Case No: 20/16 CA Case No: 475/2015 GJ Case No: 35650/2014
In the matter between:
ESKOM HOLDINGS SOC LTD Applicant and
WESTINGHOUSE ELECTRIC BELGIUM
SOCIETE ANONYME First Respondent AREVA NP INCORPORATED Second Respondent
In re:
WESTINGHOUSE ELECTRIC BELGIUM
SOCIETE ANONYME Applicant and
ESKOM HOLDINGS SOC LTD First Respondent AREVA NP INCORPORATED Second Respondent _________________________________________________________________________________________________________
FOUNDING AFFIDAVIT
_________________________________________________________________________________________________________
I, the undersigned,
NKOSINATHI TITUS MCHUNU
1. do hereby make oath and state that:
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1.1. I am an adult male Attorney practicing as such at NT MCHUNU INC.
trading as MCHUNU ATTORNEYS, with its physical address at 3rd Floor - North Tower, 160 Jan Smuts Avenue, Rosebank, Johannesburg.
1.2. I am the attorney of record of ESKOM HOLDINGS SOC LTD (“Eskom”) and I am duly authorised to depose to this affidavit on behalf of
Eskom.
1.3. The facts contained in this affidavit are within my personal knowledge, unless appears otherwise from the context and are, to the best of my belief, both true and correct.
THE PURPOSE OF THIS APPLICATION
2. The purpose of this application is to seek condonation for the late filing of Eskom’s answering affidavit to First Respondent’s affidavit founding the cross-appeal on relief and affidavit for admission of further evidence (“Answering Affidavit”), in this matter.
3. Eskom’s Answering Affidavit ought to have been filed on Monday, 22 February 2016, in accordance with the extension granted by the First Respondent.
4. The First Respondent served its notice of application: cross-appeal and admission of further evidence, in this matter on Eskom on 01 February 2016.
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5. The new allegations raised in the First Respondent’s affidavit deposed to by Mr.
van Hulle (“Mr. van Hulle’s Affidavit”), and the First Respondent’s application for admission of further evidence and Mr van Hulle’s Affidavit, required us to not only consult with Eskom’s representatives involved in this litigation, but also Eskom’s Project Team members, who are directly involved in the implementation of this project.
6. Further, the new evidence sought to be introduced by the First Respondent and which is required to be responded to by Eskom is of such a nature that it required extensive consultations with the aforementioned persons and access to reports that have not been part of this litigation. Furthermore, the issues which we had to canvass are complex, intricate, and needed to be dealt with fully in Eskom’s papers.
7. On 12 February 2016, Eskom requested an indulgence from the First Respondent to deliver its Answering Affidavit on 29 February 2016. We attach hereto a copy of this letter marked “NTM1”. The Fist Respondent responded to our said letter on the same day, 12 February 2016, only granting Eskom an extension of one week from the due date, thus until 22 February 2016. We attach hereto a copy of this letter marked “NTM2”.
8. I submit that condonation for the late filing of Eskom’s Answering Affidavit should be granted as it will not cause any prejudice to the parties before this Court.
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9. I submit that Eskom acted reasonably and promptly after receiving the First Respondent’s notice of application: cross-appeal and admission of further evidence, in respect of preparing its Answering Affidavit.
10. This matter is of significant importance to Eskom and the public at large, and the interests of justice will be better served by granting condonation. Further submissions, in this regard, will be made at the hearing of the application.
WHEREFORE, I respectfully request that condonation be granted as prayed for in the Notice of Motion to which this affidavit is attached.
_____________________________
DEPONENT I CERTIFY that the deponent has acknowledged that he knows and understands the contents of this affidavit and has no objection to taking the prescribed oath. Thus done, signed and sworn to before me, at JOHANNESBURG on this the ____ day of ____________________ 2016 in terms of the provisions of Government Gazette R1478 of 11 July 1980 as amended by government gazette R774 of 20 April 1982, concerning the taking of the oath, having been complied with.
_________________________________________
COMMISSIONER OF OATHS
NAME: _____________________________
CAPACITY: _____________________________
ADDRESS: _____________________________
_____________________________
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