CASE NO. 13/18 In the matter between:
MXOLISI SANDILE OLIVER NXASANA Applicant and
CORRUPTION WATCH (RF) NPC First Respondent FREEDOM UNDER LAW (RF) NPC Second Respondent COUNCIL FOR THE ADVANCEMENT OF
THE SOUTH AFRICAN CONSTITUTION Third Respondent PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA Fourth Respondent
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES Fifth Respondent
SHAUN ABRAHAMS Sixth Respondent
DIRECTOR GENERAL: DEPARTMENT OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT Seventh Respondent CHIEF EXECUTIVE OFFICER OF THE
NATIONAL PROSECUTING AUTHORITY Eighth Respondent NATIONAL PROSECUTING AUTHORITY Ninth Respondent DEPUTY PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA Tenth Respondent
APPLICANT’S PRACTICE NOTE
1. THE NATURE OF THE PROCEEDINGS
1.1. Application for leave to appeal against the dismissal by the High Court of the applicant’s condonation application, with costs including the costs of two counsel.
1.2. The former President opposes this application for leave to appeal.
2. ISSUES TO BE ARGUED
2.1. Leave to appeal should be granted directly to this Court;
2.2. Condonation should be granted for the late filing of the Applicant’s answering affidavit (styled an ‘explanatory’ affidavit in the High Court).
2.3. In light of the High Court’s refusal to condone the Applicant’s late filing of an affidavit, and the consequent breach of the principles of audi alteram partem, natural justice and procedural fairness, the alternative relief crafted by the High Court that the Applicant should not be reinstated is not just and equitable as required by section 172(1) of the Constitution.
2.4. Costs of the condonation application should not have been awarded against the Applicant as a litigant who sought to participate in good faith and the public interest, in an effort to assist the Court in the determination of a crucial legal question.
2.5. Condonation should be granted for the late filing of the Applicant’s application for leave to appeal and answering affidavit in the confirmation proceedings.
3. PORTIONS OF THE RECORD NECESSARY FOR THE DETERMINATION OF THE MATTER
3.1. Third Respondent’s Explanatory Affidavit in the CW/FUL Application – Vol. 8 pp. 733-795
3.2. Third Respondent’s Explanatory Affidavit in the CASAC Application – Vol. 14 pp. 1304-1326
3.3. Third Respondent’s Condonation Application – Vol. 9 pp. 801-814
3.4. The First and Second Respondent’s answering affidavit to the Third Respondent’s Explanatory Affidavit – Vol. 9 pp. 1327-1352
4. ESTIMATED DURATION OF ORAL ARGUMENT 4.1. 45 minutes
5. SUMMARY OF APPLICANT’S ARGUMENT
5.1. The High Court erred in not granting condonation for the following reasons:
5.1.1. First and foremost, the applicant provided a full, persuasive and reasonable explanation for his non-compliance with the filing deadline.
5.1.2. Second, the High Court did not properly consider all of the factors that are relevant to a consideration of the interests of justice in this case, inappropriately according weight to only one factor. The High Court failed to consider the prejudice that would be caused to the applicant, the lack of prejudice to the other parties, as well as the materiality,
relevance and importance of the applicant’s affidavit to the issues before the court.
5.1.3. Finally, the specific second reason given by the High Court for rejecting the affidavit, that there is “the danger of it having been tailored to fit a particular position” -- despite merely detailing and amplifying the events referenced in the contemporaneous correspondence in the record -- was not properly canvassed with the applicant’s legal team, nor was his evidence capable of being ‘tailored’ since it merely confirms the contemporaneous correspondence relied on by the Court to reach its conclusions.
5.2. Condonation is vital to ensure that a just and equitable remedy is granted.
The High Court elected not to re-instate the Applicant as NDPP on the basis of adverse findings that it drew against him, in the absence of hearing his version. The High Court violated the principles of audi alteram partem, natural justice and procedural fairness, and, in so doing, also violated his constitutional right to a fair hearing. Had the Court heard and considered the contents of the applicant’s affidavit, it could not have concluded that it was not just and equitable to reinstate the applicant, as the natural and logical result of the setting aside of the settlement agreement and in circumstances where that was the primary relief sought by the applicants.
5.3. On the basis of the Biowatch principle, the High Court erred in making an adverse costs order (including the costs of two counsel) against the applicant. An adverse costs order should not be awarded against a litigant
who participates in good faith and the public interest, in an effort to assist the Court in the determination of a crucial legal question.
5.4. Leave to appeal should be granted directly to this Court.
5.4.1. The appeal raises constitutional issues as it implicates inter alia the applicant’s fundamental rights to procedural fairness and to be heard.
5.4.2. The appeal and the associated confirmation proceedings implicate the NPA and the appointment of the NDPP, which are regulated by section 179 of the Constitution and the NPA Act.
5.4.3. It is in the interests of justice to grant leave to appeal since there are prospects of success and the paucity of reasons given by the High Court for the dismissal of the condonation application will not pass constitutional muster.
5.4.4. It is further in the public interest that a matter such as the present which concerns a fundamental office like that of the NDPP be dealt with expeditiously, comprehensively and finally by the apex Court.
5.5. It is in the interests of justice to grant condonation for the late filing of the Applicant’s application for leave to appeal and his answering affidavit in the confirmation proceedings, which condonation is not opposed.
6. AUTHORITIES ON WHICH PARTICULAR RELIANCE WILL BE PLACED
6.1. Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6) SA 232 (CC)
6.2. Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC)
6.3. De Beer NO v North-Central Local Council and South-Central Local Council and Others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC)
6.4. Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC)
MM LE ROUX JL GRIFFITHS O MOTLHASEDI Chambers, Sandton 23 February 2018
