CASE NO:48/13 SCA NO: 678/2012 NGHC NO: 7477/2012
In the matter between
ALLPAY CONSOLIDATED
INVESTMENT HOLDINGS (PTY) LTD First Applicant ALLPAY FREE STATE (PTY) LTD Second Applicant ALLPAY WESTERN CAPE (PTY) LTD Third Applicant ALLPAY GAUTENG (PTY) LTD Fourth Applicant ALLPAY EASTERN CAPE (PTY) LTD Fifth Applicant ALLPAY KWAZULU NATAL (PTY) LTD Sixth Applicant ALLPAY MPUMALANGA (PTY) LTD Seventh Applicant ALLPAY LIMPOPO (PTY) LTD Eighth Applicant ALLPAY NORTH WEST (PTY) LTD Ninth Applicant ALLPAY NORTHERN CAPE (PTY) LTD Tenth Applicant MICAWBER 851 (PTY) LTD Eleventh Applicant
MICAWBER 852 (PTY) LTD Twelfth Applicant
MICAWBER 853 (PTY) LTD Thirteenth Applicant MICAWBER 854 (PTY) LTD Fourteenth Applicant
and
THE CHIEF EXECUTIVE OFFICER OF THE
SOUTH AFRICAN SOCIAL SECURITY AGENCY First Respondent THE SOUTH AFRICAN SOCIAL SECURITY AGENCY Second Respondent CASH PAYMASTER SERVICES (PTY) LTD Third Respondent
EZIDLUBHEDU INVESTMENT HOLDINGS (PTY) LTD Fourth Respondent FLASH SAVINGS AND CREDIT COOPERATIVE Fifth Respondent ENLIGHTENED SECURITY FORCE (PTY) LTD Sixth Respondent
MOBA COMM (PTY) LTD Seventh Respondent
EMPILWENI PAYOUT SERVICES (PTY) LTD Eight Respondent PENSION MANAGEMENT (PTY) LTD Ninth Respondent MASINGITA FINANCIAL SERVICES (PTY) LTD Tenth Respondent THE SOUTH AFRICAN POST OFFICE Eleventh Respondent ROMAN PROTECTION SOLUTIONS CC Twelfth Respondent
UBANK LIMITED Thirteenth Respondent
AFRICAN RENAISSANCE INVESTMENT
MANAGEMENT (PTY) LTD Fourteenth Respondent STANDARD BANK GROUP LIMITED Fifteenth Respondent NEW SOLUTIONS (PTY) LTD Sixteenth Respondent
ITHALA LIMITED Seventeenth Respondent
KTS TECHNOLOGY SOLUTIONS CONSORTIUM Eighteenth Respondent
FIRST AND SECOND RESPONDENTS’ AFFIDAVIT IN APPLICATION FOR CONDONATION
I, the undersigned,
DIKELEDI MOLEPO do hereby make oath and say that:
1 I am a major female attorney in the employ of the State Attorney of SALU Building, 316 Thabo Sehume (Andries) Street, corner Francis Baard (Schoeman) and Thabo Sehume (Andries) Streets, Pretoria.
2 The contents of this affidavit are, save where otherwise stated or indicated to the contrary, within my personal knowledge and belief, and are true and correct.
Introduction
3 The Honourable Chief Justice issued directions on 13 June 2013 in terms of which the parties were to submit a joint statement in respect of the factual findings of the High Court and Supreme Court of Appeal. Failing agreement, the directions stated that the parties were each to submit an affidavit explaining inter alia the failure to agree.
4 The parties engaged with each other in respect of a joint statement, but were unable to agree.
5 It therefore became necessary for each party to file an affidavit.
6 I deposed to an explanatory affidavit, as contemplated, on 12 July 2013 and furnished a copy to the other parties via email.
7 When I attended at the office of the Registrar of the Constitutional Court on Monday 15 July 2013 in order for the affidavit to be filed, the Registrar informed
me that the affidavit will not be accepted unless an application is brought for the late filing thereof. The first and second respondents are, for the reasons stated below, respectfully in disagreement with the view adopted by the Registrar.
Ambit of directions and explanation for “late” filing
8 The first and second respondents attempted, until the morning of Friday 12 July 2013, to liaise with the applicants in an attempt to reach agreement as directed.
9 I submit that the steps taken in this regard are comprehensively set out in paragraphs 5 to 13 of my explanatory affidavit dated 12 January 2013, and I therefore do not repeat the content thereof.
10 Of specific relevance are paragraphs 11 and 12 of my 12 July 2013 affidavit from which it is evident that I, on behalf of the first and second respondents, continued to try and reach agreement with the applicants in respect of the statement of factual findings up and until 10:05 on the morning of Friday 12 July 2013, when I received a letter via email from the applicants’ attorneys of record indicating that there will be no agreement between the parties. I attach hereto marked CA1 a copy of the covering email received from the applicants’
attorneys of record, reflecting the date and time of despatch of the letter in question.
11 Upon receipt of the letter, the first and second respondents’ legal representatives commenced with the drafting of an affidavit as contemplated in the directions.
12 Whilst the directions stated that the joint statement in respect of factual findings had to be submitted by 12 July, I respectfully submit that the directions did not expressly state that the parties’ affidavits had to be filed on the same day.
13 The first and second respondents’ representatives took the view that Friday 12 July 2013 were to be utilised in an attempt to agree to a joint statement as directed. As a result we only commenced with the preparation of an affidavit after 10:05 on 12 July 2013. There was however insufficient time left within which to complete the affidavit, and the affidavit could not be served and filed before noon on 12 July 2013.
14 The affidavit was completed, commissioned and sent to the applicants via email during the afternoon of 12 July 2013. As proof of despatch of the affidavit via email I attach hereto marked CA2 a copy of the covering email.
15 It is evident from paragraph 6.10.3 of the applicants’ affidavit dated 12 July 2013, that applicants commenced drafting their affidavit on Wednesday 10 July 2013, two days before the joint statement of factual findings was due and at a time when the other parties were still attempting to engage the applicants and reach agreement in respect of the statement of factual findings. It therefore took the applicants representatives almost two days to prepare the applicants’
affidavit.
16 In light of the aforegoing I submit that the first and second respondents cannot be said to have been dilatory in preparation of the explanatory affidavit, and that it is evident that the explanatory affidavit was served and presented for
filing at the earliest opportunity, after the need to file an explanatory affidavit became evident.
Prejudice
Even if it accepted that the parties’ explanatory affidavits were to served and filed on 12 Jul 2012, I submit that:
16.1 in light thereof that the first and second respondents’ affidavit was despatched electronically to the applicant on Friday afternoon, there can be no prejudice to the applicants as a result of the failure to formerly serve and file the affidavit on 12 July 2013; and
16.2 there was minimal delay in presenting the explanatory affidavit to court for the consideration of the Constitutional Court Justices.
In the premises I pray for an order in terms of the notice of motion to which this affidavit is attached.
______________________
DEPONENT
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of his knowledge both true and correct. This affidavit was signed and sworn to before me at PRETORIA on this the ____day of ______________ 2013, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended, have been complied with.
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