IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT Case No:
SCA Case No: 476/2015 GJ Case No: 35650/2014
In the matter between:
ESKOM HOLDINGS SOC LTD Applicant and
WESTINGHOUSE ELECTRIC BELGIUM
SOCIETE ANONYME First Respondent AREVA NP 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
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1. do hereby make oath and state that:
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 Application for Leave to Appeal in terms of Rule 19 of the Rules of the Constitutional Court, in this matter.
3. The Application for Leave to Appeal ought to have been filed on Monday, 18 January 2016, in accordance with Rule 19 of the Rules of the Constitutional Court.
4. The Supreme Court of Appeal (“SCA”) handed down its judgment in this matter on 09 December 2015.
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5. Senior Counsel was unavailable to finalise the Application for Leave to Appeal between the period of 10 December 2015 – 15 January 2016 due to the holiday season. As a result, Senior Counsel was only able to attend to the finalisation of the Application for Leave to Appeal over the weekend, being 16 and 17 January 2016.
6. Upon receipt of the finalised affidavit in support of the Application for Leave to Appeal from Counsel on Monday, 18 January 2015, I and my team immediately had to arrange the logistics to ensure that we procure Eskom’s deponent’s signature and the commissioning thereof. Further, my team attended to the making of relevant copies for service on the First and Second Respondent and the above Honourable Court, as a matter of urgency.
7. I submit that condonation for the late filing of the Application for Leave to Appeal should be granted as it will not cause any prejudice to the parties before this Court.
8. I submit that Eskom acted reasonably and promptly after receiving the SCA Judgment in respect of preparing its Application for Leave to Appeal.
9. 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.
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_____________________________
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 January 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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