IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 20/2016 and CCT 24.2016 SCA CASE NO: 476/2015 GJ Case No: 35650/2014 In the matter between:
ESKOM HOLDINGS SOC LTD (“Eskom”) Applicant and
WESTINGHOUSE ELECTRIC BELGIUM
SOCIETE ANONYME (“Westinghouse”) First Respondent AREVA NP INCORPORATED IN FRANCE (“Areva”) Second Respondent
In re:
AREVA NP INCORPORATED IN FRANCE (“Areva”) Applicant
(Second Respondent and
Cross-Appellant in SCA 476/2015) and
ESKOM HOLDINGS (SOC) LTD (“Eskom”) First Respondent (First Respondent in SCA 476/2015) WESTINGHOUSE ELECTRIC BELGIUM Second Respondent SOCIETE ANONYME (“Westinghouse”) (Appellant in SCA 476/2015) _________________________________________________________________________________________________________
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 amended Heads of Argument and its Affidavit in response to Westinghouse’s Replying Affidavit (in the application to admit further evidence), in this matter.
3. We served Eskom’s Heads of Argument on the Applicant and Second Respondent on the due date, being 03 May 2016. We then attempted to file Eskom’s Heads of Argument at the above Honourable Court, we were advised to amend Eskom’s Heads of Argument to ensure that they are not more than 50 pages in length.
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4. We then proceeded to reduce the number of pages of Eskom’s Heads of Argument by adjusting the number of pages to 50 (fifty) (“Amended Heads of Argument”). On 03 May 2016, we served a copy of the Amended Heads of Argument on the Applicant’s and Second Respondent’s attorneys of record, electronically, and attended to making the necessary 26 copies for filing at the above Honourable Court.
5. Due to the complex and technical nature of the issues raised by Westinghouse in its replying affidavit (in its application to admit further evidence) to Eskom’s answering affidavit, we needed to consult further and obtain the views of Eskom’s team involved in the implementation of the contract between Eskom and Areva and this took longer than was initially anticipated. The operational team is based in Cape Town and needed to consider the allegations contained in the replying affidavit more closely before Mr Matshela could proceed to depose to Eskom’s responding affidavit. The holiday season also created a challenge in the co- ordination of diaries for the purposes of finalising Eskom’s response.
6. I submit that condonation for the late filing of Eskom’s Amended Heads of Argument and its Affidavit in response to Westinghouse’s Replying Affidavit (in the application to admit further evidence) should be granted as it will not cause any prejudice to the parties before this Court.
7. I submit that we and Eskom acted reasonably and promptly after receiving instructions from this Court to reduce the number of pages of Eskom’s Heads of Argument to 50 pages.
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8. 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 MAY 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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