IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (CONSTITUTIONAL HILL, BRAAMFONTEIN)
CASE NO: CCT 247-16
In the matter between:
S E S Applicant
and
V V-S Respondent
In re:
V V-S Applicant
and
S E S Respondent
RESPONDENT’S ANSWERING AFFIDAVIT
I, the undersigned,
V V-S
do hereby declare the following under oath:
1. I am the respondent herein.
2. The allegations contained herein fall within my personal knowledge and are true and correct.
3. I am a major female who resides at 3 Zambesi Kiaat Street, The Wilds Estate, Pretorius Park, Extension 15, Pretoria, Gauteng Province.
4. The legal submissions contained herein are submitted on the advice of my legal representatives, which advice I accept as being correct and sound.
5. I make this affidavit in opposition to the appplication for leave to appeal filed by the applicant with this Honourable Court on 13 October 2016. I confirm that the respondent seek to have the application dismissed. I have read the founding affidavit deposed to by Mr. S E S and intend to respond thereto ad seriatum below. I do however first wish to summarise the respondent’s case in this application.
SUMMARY OF THE RESPONDENT’S OPPOSITION
6. The applicant seeks to avid payment of maintenance for his minor child on the basis that he will be deprived of his right to housing. I draw the attention of the above Honourable Court that only when my attorneys of record issued a writ of execution pursuant to the applicant’s application for leave to appeal in the High Court was dismissed with costs, the applicant then reacted by preparing the application for condonation in the Supreme Court of Appeal.
7. My attorneys of record had by then obtained cancellation figures from Standard Bank and had made all the necessary preparations for the sale in execution of the applicant’s immovable property. In the light hereof I seriously question the applicant’s bona fides. The real reason is clearly that for as long as no execution steps were being taken against the applicant, the applicant was satisfied to sit back and do nothing.
8. The applicant has avoided any responsibility whatsoever towards our minor child and still refuses to pay anything in maintenance. His view is that for so long as he stands to
lose his home he can instead expend vast amounts of money towards opposing the execution steps. The applicant is a highly paid public servant who is the registered owner of two immovable properties. I attach hereto as annexures “A” and “B” Windeed printouts obtained from the Deeds Office reflecting that the applicant is the registered owner of Erf 31, Lynnwood Glen also known as 16 Alcade Road, Lynnwood Glen, Pretoria and Erf 610, Palm Ridge also known as 12 Asparagus Street, Palm Ridge, Gauteng.
9. I deny that the applicant has any prospects of success on appeal. The applicant has failed to raise any constitutional issue for consideration by the above Honourable Court.
The crisp issue in this litigation process is the failure by the applicant to pay maintenance for the minor child. It is quite apparent that the applicant has the necessary funds and has had the necessary funds to fund his opposition of any application to procure payment of the amount of the applicant’s maintenance obligations towards the minor child however, instead of paying the maintenance, the applicant chooses to rather fund his litigation so that he may not have
to pay any maintenance.
AD PARAGRAPHS 1 TO 6
10. The allegations contained herein are admitted.
AD PARAGRAPHS 7 TO 17
11. The allegations contained herein are admitted insofar as they accurately reflect the facts.
AD PARAGRAPHS 18 TO 28
12. The allegations contained herein are admitted insofar as they accurately reflect the facts.
AD PARAGRAPHS 29 TO 33
13. I deny that the applicant is presently paying towards arrears. I further deny that the applicant was unaware of the 50% additional maintenance that he is liable for. This is borne out by the facts. Save for the aforesaid the remaining allegations contained herein are admitted insofar as they accurately reflect the facts.
AD PARAGRAPHS 34 TO 45
14. The applicant is simply reiterating the allegations made to the court a quo and to the Supreme Court of Appeal. Save for the aforesaid the remaining allegations contained herein are admitted insofar as they accurately reflect the facts. I do however deny that the applicant was unaware of his obligations. He was furnished with details of all expenses and is being opportunistic in making these allegations.
AD PARAGRAPHS 46 TO 50
15. It is the applicant himself that informed the sheriff that he did not possess movable assets to satisfy the judgment debt. The applicant is accordingly prevent from making allegations about the correctness of the nulla bona return of service if he was the cause of the issuing thereof. The remaining allegations contained herein are admitted insofar as they accurately reflect the facts.
AD PARAGRAPHS 51 TO 76
16. The allegations contained herein are admitted insofar as they accurately reflect the facts. The applicant seems to continuously avoid the real issue. The court a quo already dealt with the issue of the quantum of maintenance. The allegations regarding the expenses are ill founded in an application of this nature. I have noted the alleged rights of the applicant’s wife and have yet to see an application for joinder by her. The sum of R100 000.00 has never been paid.
AD PARAGRAPHS 76 TO 104
17.1 The allegations contained herein are admitted insofar as they accurately reflect the facts. I do however deny the applicant’s legal conclusions and submit that the grounds of appeal are without foundation or legal basis. The applicant makes mention of his family but does not disclose who the family is save and except of mention if his wife.
17.2 I attach hereto a copy of an electronic mail communication from the applicant’s attorney addressed to the offices of my attorneys of record dated 21 January 2016 where the
applicant’s attorneys informed my attorneys of record that the amount in respect of the taxed bill of costs in respect of previous applications will be paid on 7 February 2016. To date the taxed costs have not been paid. The above Honourable Court will note that the applicant himself, on 21 January 2016 at the bottom of such email, marked annexure
“C”, informed his attorneys of record that he would pay such taxed costs on 7 February 2016.
17.3 It is thus my respectful submission that the applicant is merely obstructive and will go to any measures to frustrate any application that I may launch for payment of the maintenance in order to avoid paying maintenance for the minor child. Furthermore the taxed costs relate to the applicant’s own application to set aside the writ of execution which was dismissed with costs on 11 November 2014.
Such costs amount to approximately R59 000.00 and pursuant to execution steps by the sheriff to procure payment of the taxed costs, the sheriff was unable to attach any movables and consequently rendered a nulla bona return of service.
17.4 I annex hereto as annexures “D” and “E” the nulla bona return of service together with a document dated on the same date as the nulla bona writ return of service, namely 22 February 2014 where the applicant himself signed the nulla bona thereby stating that he has immovable assets. It is thus simply opportunistic of the applicant to shift the blame to the sheriff where he himself was instrumental in the rendering of the nulla bona return of service.
17.5 My attorneys of record, not having obtained positive response from the applicant’s attorneys regarding payment of the taxed costs and having heard that the applicant allegedly possess over immovable property, addressed an electronic mail to the applicant’s attorneys indicating that if this was the case, an application would be brought for the employment of a locksmith to open the applicant’s premises so that the sheriff could attach movable assets. Currently the taxed costs amount to approximately R59 000.00 and together with accrued interest and sheriff’s costs my attorneys have estimated the cost to be in the region of R80 000.00.
PROSPECT OF SUCCESS
18. Section 167(3) of the Constitution of the Republic of South Africa, 108 of 1996 regulates the matters that can be adjudicated upon by the Constitutional Court, these matter are restricted to:
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal on the grounds that the matter raises an arguable point of law of general public importance which ought to be considered by that Court.
The Court ultimately makes the final decision whether a matter is within its jurisdiction.
19. I respectfully submit that there is not prospect of success on appeal and secondly that the applicant has not made out any
case for a constitutional issue to be considered by the above Honourable Court.
______________________________
DEPONENT
SIGNED AND SWORN TO BEFORE ME AT PRETORIA ON 27 OCTOBER 2016 THE DEPONENT HAVING ACKNOWLEDGED THAT THE DEPONENT KNOWS AND UNDERSTANDS THE CONTENTS OF THIS AFFIDAVIT, HAS NO OBJECTION TO TAKING THE PRESCRIBED OATH AND CONSIDERS THE OATH BINDING ON THE DEPONENT’S CONSCIENCE.
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COMMISSIONER OF OATHS NAME:
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