SCA Case No. 560/08 CPD Case No. 15113/07 In the matter between:
THE CAMPS BAY RATEPAYERS’ AND
RESIDENTS’ ASSOCIATION First Applicant PS BOOKSELLERS (PTY) LTD Second Applicant
and
GERDA YVONNE ADA HARRISON First Respondent
THE MUNICIPALITY OF THE CITY OF CAPE
TOWN Second Respondent
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AFFIDAVIT
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I, the undersigned,
JOHN BASIL POWELL declare hereby under oath as follows:
I am an adult male and the Vice-Chairman of the Camps Bay Ratepayers’ and Residents’ Association, the First Applicant herein.
I am duly authorised to bring this application on behalf of the First Applicant and its members.
I depose to this affidavit in support of the First Applicant’s application for condonation of the late filing of its application for leave to appeal in this matter.
The facts herein set forth are true and correct and are within my personal knowledge, save where it appears otherwise from the context thereof, in which case I state the source of the information, which I verily believe to be true and correct.
In order for the First Applicant to embark on an application to seek leave to appeal in this matter, the various office holders and representatives of the First Applicant organisation had first to consider the judgment of the Supreme Court of Appeal in this matter and thereafter to obtain legal advice in respect thereof.
It was accordingly necessary for the First Applicant take the necessary steps and follow the procedures laid down by its constitution and by its internal authorising procedures, in order to obtain the necessary consensus and decision from the members of its committee, to proceed with this appeal and expose the organization to the implications in respect of legal costs.
1. In order to do so it was necessary that the authorised representatives of the First Applicant convene to consider the First Applicant’s continued involvement in this matter and the consequences thereof in relation to the continued operations of the First Applicant.
2. This was naturally not a decision lightly taken as the outcome of this application will have serious material consequences for the First Applicant, whatever that outcome may be.
3. Accordingly, it took time to properly inform the relevant office holders and representatives of the First Respondent of the meaning and implications of the judgment in question, in order for them to assess, with reference to the First Applicant’s role in the community and its objectives, whether the First Applicant should indeed take the matter further and thereafter to ensure that the relevant arrangements were in place to enable the First Applicant to instruct its legal representatives to proceed with the Application for leave to appeal and if granted, the Appeal itself.
4. The First Applicant is a voluntary association whose officers and representatives are not remunerated but are otherwise employed. As is often the case with public-spirited persons, most of them are very busy individuals having other commitments apart from their professional or business lives and it is difficult to arrange representative and quorate meetings at short notice. Accordingly, these necessary deliberations set out above took some time and it was not until the evening of Saturday
the 6th of March 2010 that the First Applicant was able to obtain the necessary decision to proceed with the appeal.
5.
1. Prior to such meeting, the First Applicant clearly required advice as to its legal and other options. Both the senior and junior counsel who have represented the Applicants in this matter since its outset in 2005 had very limited availability in the period since the Supreme Court of Appeal handed down its judgment in the review proceedings in that they have both been involved in the period subsequent to the decision being handed down with other urgent matters.
2. I know from conversations with them and with our attorney that the Applicants’ senior counsel, for example, was involved in a planning/building dispute hearing which occupied him in excess of a week at the time the SCA judgment was handed down and was thereafter committed to the preparation and launching of two other urgent applications for interdictory relief, by which he had been further delayed by the unexpected length of the said hearing.
3. In addition, the Applicant’s junior counsel was also briefed as junior counsel in one of these matters, apart from his own other commitments.
4. Accordingly, counsel had limited time to consider the judgment of the Appeal Court, to analyse it and to prepare to advise the First Applicant’s representatives on prospects of success on appeal.
That advice had then to be considered by the First Applicant’s committee.
6. This situation unfortunately extended the period taken for the First Applicant’s members and representatives to be advised and informed as to the essence of the judgment of the Supreme Court of Appeal, the procedures necessary in order to approach this Honourable Court, the possible or potential outcomes of such process and its relevance in relation to the functioning and objectives of the First Applicant.
7. More particularly, junior counsel did not become available until Monday the 8th of March 2010, to draft the petition to this Honourable Court in this matter; and senior counsel commenced thereon on the afternoon of Tuesday 9th March 2010. They finished the draft late in the night of Thursday 11th and the affidavit was attested to by me on Friday the 12th March 2010. I point out that, in preparing the application, they had to revisit a record that runs to well over 800 pages, as well as sets of heads of argument filed in three court hearings.
8. The matter has a long and detailed history with which the Applicants’
counsel are familiar. In those circumstances, it was not desirable at this late stage for the Applicants to appoint other counsel to attend to the appeal.
9. Indeed, this would no doubt have resulted in even further delay as it would not have been possible for fresh counsel to read themselves into a complex building dispute of this nature and to prepare an application for leave to appeal in that time.
10. Counsel were nevertheless instructed to settle the papers urgently upon their becoming available and in my respectful submission they have done so, the petition having been delivered only two days late.
11. I am advised that the petition should have been delivered by the 10th of March 2010. I am advised that it was served on Respondents on the 12th March 2010 and that it will have been delivered to this Honourable Court on Monday the 15th of March 2010.
12. This matter has, as aforesaid a long history and I respectfully submit that a delay of two days is not of significant consequence and will not cause any material prejudice to the Respondents in the context thereof.
13. There is currently no construction proceeding on the property in issue in this matter. There has been no construction since 2006.
14. As will appear from that stated below, the issues that fall for consideration are important matters of public interest.
15. I submit that a consideration of the judgment of the Supreme Court of Appeal, together with the petition, demonstrates that the Applicants have good prospects of success and I respectfully submit that it would not be in the interests of justice that the Applicants be precluded from proceeding with the appeal by reason of this short delay of two days.
16. In the circumstances, the Applicants pray that this Honourable Court will condone the late delivery of this application for leave to appeal and the Applicants tender such costs as may be associated with or arise out of this application for condonation.
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JOHN BASIL POWELL
I certify that the above signature is the true signature of the deponent and that he/she has acknowledged that he/she knows and understands the contents of this affidavit which affidavit was signed and sworn to before me in my presence at on this day of MARCH 2010, in accordance with Government Notice No. R1258 dated 21 July 1972, as amended by Government Notice No R1648 dated 19 August 1977, as further amended by Government Notice No. R1428 dated 11 July 1980, and by
Government Notice No R774 of 23 April 1982.
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COMMISSIONER OF OATHS
