IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (CONSTITUTION HILL)
CCT SCA APPEAL CASE NO 325/2017 GP CASE NO 18849/2017 In the matter between:
TASIMA (PTY) LTD First Applicant
DENESHKUMAR NARAN Second Applicant
FANNIE LYNEN MAHLANGU Third Applicant ZUKO MZIWOXOLO VABAZA Fourth Applicant and
ROAD TRAFFIC MANAGEMENT CORPORATION First Respondent DEPARTMENT OF TRANSPORT Second Respondent MINISTER OF TRANSPORT Third Respondent
MINISTER OF POLICE Fourth Respondent
DIRECTOR GENERAL:
DEPARTMENT OF TRANSPORT Fifth Respondent KEVIN JOSHUA KARA-VALA Sixth Respondent
MORNE GERBER Seventh Respondent
CHRIS HLABISA Eighth Respondent
MAKHOSINI MSIBI Ninth Respondent
SUPPORTING AFFIDAVIT: APPLICATION FOR CONDONATION
I, the undersigned,
MICHAEL-JOHN SPARGO
do hereby make oath and say:
1. I am an adult male attorney of the High Court of South Africa, practising as such as an associate in Webber Wentzel, the applicants' attorneys of record, situated at 90 Rivonia Road, Sandton. I am duly authorised by the first to fourth applicants to depose to this affidavit on their behalf.
2. The facts set forth in this affidavit fall within my personal knowledge unless the contrary is stated or appears from the context. They are, to the best of my knowledge and belief, both true and correct.
3. I respectfully request that this Honourable Court condone, to the extent necessary, the late filing of the application for leave to appeal in this matter. The reasons for this request are set out more fully below.
EXPLANATION FOR DELAY, TO THE EXTENT NECESSARY
4. The applicants' application for leave to appeal to the Supreme Court of Appeal was refused by way of an order dated 25 August 2017 ("the Order"), but which was only communicated by the Registrar of the Supreme Court of Appeal to the applicants' legal representatives on 29 August 2017. A copy of the Order is attached as annex "FM2" in the application for leave to appeal in this matter. A copy of the letter from the Registrar, dated 29 August 2017 ("the SCA Registrar's letter"), under cover of which the Order was sent, also forms part of "FM2".
5. On 19 September 2017, the applicants served and attempted to file their leave to appeal application in this Court ("the CC leave to appeal application").
6. The applicants understand that the 15 court day period mentioned in Rule 19(2) of the Rules of the Constitutional Court commenced running from the date that the Order was communicated to the applicants' attorneys, i.e.
29 August 2017. In the circumstances, the date by which the applicants were due to file their application for leave to appeal in this Court was 19 September 2017. As such, the applicants submit that no application for condonation is necessary.
7. However, when the applicants attempted to file the CC leave to appeal application, they were informed by the Registrar of this Court that a condonation application was required as, according to the Registrar, the 15 day period in Rule 19(2) runs from the date that the President of the SCA signed the Order, and not the date that the Order was communicated to the applicants. I respectfully submit that, to the extent that the condonation application is necessary, the circumstances of this case warrant the granting of condonation.
8. The CC leave to appeal application was finalised as soon as absolutely possible after becoming aware of the Order. The applicants consulted with their attorneys of record, and senior counsel was briefed to assist with the finalisation of the CC leave to appeal application two days after 29 August 2017, when the Order was formally communicated. Following extensive consultations and a rigorous drafting process, the founding
affidavit was finalised and deposed to in the evening of 18 September 2017. Given the complexity of the matter, the CC leave to appeal application could not be finalised before then.
9. In the morning of 19 September 2017, the applicants' attorneys proceeded to serve a copy of the papers in the CC leave to appeal application on the respondents (a copy of the proof of service is annexed hereto marked
"MJS1") and a copy of the papers was sent electronically to the Registrar of this Honourable Court under cover of the email annexed hereto marked
"MJS2".
10. Shortly thereafter, when the applicants' attorneys attempted to file the CC leave to appeal application in this Court, they were informed by the Registrar that a condonation application was required, since Rule 19(2) dictates that an application for leave to appeal must be lodged within 15 days of the Order, which, according to the Registrar, means from the date that the Order was signed.
11. However, the Order in fact only came (and could only reasonably have been expected to come) to the attention of the applicants on 29 August 2017 (some 4 days after the date on which the Order was signed), the date of the SCA Registrar's letter. The applicants bona fide believed that the dies for the filing of the CC leave to appeal application only began to run from the date they had notice of the Order.
12. In light of the above, I respectfully submit that the applicants have therefore done everything possible to comply with the Rules of this Court
for filing their application for leave to appeal timeously, and have in fact complied with Rule 19(2) by seeking to lodge the application for leave to appeal within 15 days of becoming aware of the Order (on 19 September 2017).
NATURE OF THE DELAY
13. In light of the fact that the CC leave to appeal application was filed within 15 days of becoming aware of the Order, and in view of the Registrar's communication that the CC leave to appeal application ought to have been filed within 15 days of the Order being granted (i.e. by no later 15 September 2017), the delay in filing the application amounts to no more than two days. Furthermore, there has been no prejudice to the respondents.
IMPORTANCE OF THE MATTER
14. This matter raises important questions regarding the High Court's interpretation (per the judgment and order of the Honourable Mr Justice Tuchten, annexed as "FM1" to the CC leave to appeal application) of an order of this Honourable Court handed down on 9 November 2016.
15. As set out above, any delay which may have occurred has caused no prejudice to the respondents. Conversely, however, the refusal to grant condonation for the delayed filing of the CC leave to appeal application would irreparably prejudice the applicants.
CONCLUSION
16. For the reasons set out above, I respectfully pray that the relief sought in the applicants' notice of application be granted.
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DEPONENT
The Deponent has acknowledged that he knows and understands the contents of this affidavit, which was signed and sworn to before me at _______________
on this the __ day of SEPTEMBER 2017, 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.
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