IN THE CONSTITITIONAL COURT REPUBLIC OF SOUTH AFRICA
CASE NO:
In the matter between:
LUFUNO MPHAPHULI & ASSOCIATES (PTY) LTD Applicant
and
NIGEL A ANDREWS First Respondent
BOPANANG CONSTRUCTION CC Second Respondent
FOUNDING AFFIDAVIT – CONDONATION APPLICATION
________________________________________________________________
I, the undersigned
ROBERT ALEXANDER BLYTH ELIOTT
do hereby make oath and say that:
1.
1.1. I am an adult male attorney practising as such as a director of Knowles Husain Lindsay Incorporated, the Applicant’s attorneys of record. I have since June 2005 been the Applicant’s attorney dealing with this matter. I am duly authorised to bring this application and to depose to this affidavit on the Applicant’s behalf.
1.2. The facts stated herein are within my personal knowledge, save where the context indicates otherwise or expressly stated to the contrary, and are, to the best of my knowledge and belief, both true and correct.
2. The purpose of this application is to request the Honourable Court to condone the late filing of the Applicant’s application for leave to appeal to this Honourable Court. The application for leave to appeal is being filed simultaneously with this condonation application.
3. The judgment against which the Applicant seeks leave to appeal was handed down by the Supreme Court of Appeal on Thursday 22 November 2007. In terms of Rule 19 of the Constitutional Court rules, the application for leave to appeal had to be lodged within 15 days thereafter, i.e. by Thursday 13 December 2007. The application for leave to appeal was deposed to by the Applicant’s representative, Mr Lufuno Mphaphuli, on 13 December 2007 and indeed served on the Pretoria service addresses of the First and Second Respondents’ attorneys on 13 December 2007. However for the reasons which will be set out below, the Applicant’s firm of attorneys were not able to lodge the application with the Registrar of this Court timeously.
The application is being lodged together with this application for condonation on Friday 14 December 2007.
4. At the outset I must confess that although I have been a practising attorney specialising in litigation for nearly 13 years, I have not ever dealt with a
constitutional matter before this one. In addition, senior and junior counsel who appeared on behalf of the Applicant before the Supreme Court of Appeal are also highly experienced in litigation, but have not previously appeared before the Constitutional Court. Accordingly I deemed it necessary and received an instruction from the Applicant, to brief a new counsel with specialist experience in constitutional matters. Initially the brief to new counsel was to consider whether there were reasonable prospects of success with an appeal to the constitutional court. In other words, was there a constitutional issue which was implicated in the matter?
5. The initial brief and instruction was given to new counsel on Monday 26 November 2007. Counsel was at that time not available to prepare the opinion due to his involvement in a trial in the Witwatersrand Local Division which was due to commence on Wednesday 28 November 2007. That trial was finished on Tuesday 4 December 2007 and counsel immediately set about preparing the opinion. For this purpose counsel had to familiarise himself with the voluminous and complex record in this matter (which runs to 12 volumes and about 1100 pages) as well as the detailed heads of argument submitted by all the parties and the judgment of the Supreme Court of Appeal. On 7 December 2007 counsel issued a written opinion that a constitutional issue was implicated and on the same day I obtained an instruction from Mr Mphaphuli to proceed with the application for leave to appeal.
6. In anticipation of the 15 day time period, I had on Monday 3 December 2007 instructed junior counsel who appeared in the Supreme Court of Appeal and
who had also argued the matter in the Transvaal Provincial Division, to prepare a draft application for leave to appeal to this Court, which could be settled by new counsel. However that junior counsel was unable to prepare the application due to personal circumstances beyond his control. He informed me that his 6-year-old son had accidentally set fire to his bedroom and the fire damage and subsequent water damage from the fire department had been so severe that their house was rendered uninhabitable. He was accordingly unable to work at all during that week.
7. Thus by Friday 7 December 2007 it became apparent that the only person who would be able to prepare a draft application for leave to appeal, to be settled by new counsel, would be me. It will be appreciated that because of the exceedingly complex factual matrix of the matter, it was not feasible for new counsel to prepare the application from scratch.
8. I immediately set about preparing the draft application but was unable to furnish new counsel with a comprehensive draft until the evening of Tuesday 11 December 2007.
9. This draft was settled by counsel on Tuesday evening, Wednesday 12 December 2007 and on the morning of Thursday 13 December 2007.
10. I had made arrangements with Mr Mphaphuli to be available on the morning of Thursday 13 December 2007 to sign the affidavit. I point out that Mr Mphaphuli lives and conducts business in Polokwane, which is some 350 kilometres north of Johannesburg. He did inform me that he had to go to out
early in the morning but would return by 12h00. This would have left sufficient time for the affidavit deposed to by him and sent to my firm’s Pretoria correspondent for service on the attorneys of the First and Second Respondents and thereafter for the original application to be lodged with the Registrar by 15h30.
11. The final draft of the affidavit was sent through to me by e-mail at 11h40. I went through it and made some minor amendments and e-mailed it to Mr Mphaphuli at 12h20.
12. Unfortunately Mr Mphaphuli had been called away urgently to Makhado (Louis Trichardt). The reasons for this urgent need to depart despite the necessity to sign the affidavit were the following:
12.1. The Applicant is conducting a large scale project for the Thulamela Municipality, which has its offices in Makhado.
12.2. The Applicant is entitled to submit invoices to Thulamela Municipality for work already done in the sum of some R3 million.
12.3. The Applicant requires payment of this amount urgently and before the Christmas break, in order to pay its pressing creditors including suppliers on the project as well as my firm. The Applicant’s cash flow is extremely tight at present as a result, in part, of the substantial costs of sustaining this litigation.
12.4. The only way in which Mr Mphaphuli could persuade Thulamela Municipality to release payment of these invoices before the Christmas break was by visiting their offices personally yesterday morning.
13. I only discovered that Mr Mphaphuli had had to travel to Makhado to deal with the financial crisis in which the Applicant found itself, during a telephone conversation with Mr Mphaphuli shortly after 13h00. I immediately setting about making an alternative arrangement for the commissioning of the founding affidavit and the judgment of the Supreme Court of Appeal. An attorney in Makhado, Leon Klaff was contacted on his cellphone and at my request, collegially agreed to accept the burden of receiving the e-mailed documents, printing same out and commissioning Mr Mphaphuli’s affidavit.
14. The process of Mr Mphaphuli reading the affidavit and the deposing to same before Mr Klaff endured until 14h30. Unfortunately it took 30 minutes thereafter for the signed affidavit to be faxed to our Pretoria correspondent in its entirety.
15. Our Pretoria correspondent, Friedland Hart Incorporated, had already been sent the notice of motion by e-mail and immediately upon receipt of the faxed affidavit, made copies thereof and arranged for service of the application upon the service addresses in Pretoria on the First and Second Respondents’ attorneys. One of my firm’s candidate attorneys had travelled to Friedland Hart’s offices and was waiting there for the served papers, which he would then take through to the seat of the Court in Braamfontein.
16. The Registrar had been contacted about the matter and had kindly agreed to extend its office hours from 15h30 to 16h00 in order to accommodate the Applicant.
17. Service of the application for leave to appeal was therefore effected timeously but by the time this had taken place it was already nearly 16h00.
Given that at that time of day, it would have taken over an hour to drive back from Pretoria to Braamfontein with the original papers, it became clear that it was not possible to lodge the application for leave to appeal yesterday.
18. It has taken the course of this morning to prepare this application and hence the application for condonation is being lodged together with the application for leave to appeal after lunch on Friday 14 December 2007.
19. The confirmatory affidavit of Mr Mphaphuli is annexed hereto marked “E1”.
20. I had prepared yesterday the required note to the Registrar which is annexed hereto marked “E2”. An updated note will be lodged with the Registrar simultaneously with the lodging of these applications.
21. I made a verbal arrangement this morning with the Second Respondent’s legal representatives that:
21.1. in view of the time of year, the Applicant consented to the Second Respondent furnishing its answering affidavit on or before 31 January 2008, instead of within 10 (ten) days;
21.2. The Second Respondent consented to the late filing of the application for leave to appeal to this Court.
22. I understand that the First Respondent’s attorney has already departed for his end of year vacation.
23. SUMMARY
I submit that the late filing of the Applicant’s application for leave to appeal ought to be condoned for the following reasons:
23.1. The delay is very short – only one day.
23.2. The application was served timeously on the Respondents. The Respondents have accordingly not been prejudiced.
23.3. I have furnished a comprehensive explanation for the delay above.
It is submitted that the Applicant’s legal representatives were not dilatory in the matter, or if they were, not so dilatory as to merit the exclusion of the Applicant’s application for leave to appeal.
23.4. Certainly there was no wilful delay on the part of the Applicant or its legal representatives.
23.5. The matter is a complicated one and the factual and legal issues are complex. Accordingly preparation of the application for leave to appeal was a difficult and time-consuming task, which could not have been completed within a few days.
23.6. There has been no delay in the launching of this application for condonation.
23.7. The Second Respondent has consented to the late filing of the application for leave to appeal.
23.8. It would be in the interests of justice for the Applicant’s application for leave to appeal to be considered by the Constitutional Court.
ROBERT ALEXANDER BLYTH ELIOTT
The Deponent has acknowledged that he knows and understands the contents of this affidavit/declaration, which was signed and sworn to/declared before me at SANDTON on this the ___________ day of DECEMBER 2007, the regulations contained in Government Notice No R1258 of 21 July 1972, as amended, and Government Notice No R1648 of 19 August 1977, as amended, having been complied with.
COMMISSIONER OF OATHS
