IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 154/16
In the matter between:PHILLIP DANIEL SCHOOMBEE FIRST APPLICANT FREDERICK JOHANNES MASSYN SECOND APPLICANT And
THE STATE RESPONDENT
AFFIDAVIT
I, the undersigned, Johannes Jacobus Smit do hereby state under oath that:
1.
Unless otherwise stated or appears from the context hereof, the facts herein contained are within my personal knowledge and are to the best of my
knowledge and belief, both true and correct.
2.
I am the Director of Public Prosecutions for the North West Division of the High Court appointed as such in terms of the National Prosecuting Authority Act 32 of 1998.
3.
I am therefore, duly authorised to depose to this affidavit for and on behalf of the Respondent.
4.
The applicant’s decision to proceed with their appeal to the full bench on the basis of the reconstructed record as supplied by the trial judge is highly
relevant to their contention before This Honourable Court. The applicants, consciously aware of their right to participate in the reconstruction of the record of the proceedings, decided to launch their appeal using the
reconstructed record thereby waiving their right to participate as such.
5.
This is indicative of their satisfaction with the fact that the provided reconstructed record was sufficient for them to prosecute their appeal.
6.
Their appeal is therefore against their own decision and they are not entitled to seek resource from This Honourable Court. Having regard to this, they are not entitled by law to have direct access to This Court as it is not in the interest of justice to have direct access. They had all the time to have this issue
resolved since the inception of their appeal bid.
7.
The comprehensive reconstruction of the record, at this late stage, is not practically possible.
8.
The provided reconstructed record was sufficient for the appellants to apply for leave to appeal before the trial court, appeal to the full bench and
petitioning to the Supreme Court of Appeal for leave against the decision of the Full Bench.
9.
All the three courts did not have difficulties with disposing of the matter based on the provided record; hence the appellant’s launched their bids based on the same record.
10.
This matter has reached finality and the application to access This Honourable Court should be dismissed.
As a consequence of the afore going, I respectfully request from the Honourable Court to dismiss the application for direct access.
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DEPONENT
I certify that the Deponent has acknowledged that he/she knows and
understands the contents of this affidavit which was SIGNED and SWORN to before me at Mahikeng on this 29th day of August 2016. The Deponent has furthermore declared that he/she considers the prescribed oath as binding on his/her conscience.
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COMMISSIONER OF OATHS
FULL NAMES: _______________________
DESIGNATION: ______________________
BUSINESS ADDRESS: __________________
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