CASE NO._________
In the application of:
MEMBER OF THE EXECUTIVE COUNCIL FOR LOCAL GOVERNMENT AND HOUSING (GAUTENG PROVINCE)
and
MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT
In re:
TRANSFER RIGHTS ACTION CAMPAIGN First Applicant TREKNET PROP CC Second Applicant
MARION CAMERON NO Third Applicant DIANNA JENNIFER PARNELL Fourth Applicant CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Fifth Applicant EKURHULENI METROPOLITAN
MUNICIPALITY Sixth Applicant JOHANNESBURG WATER (PTY) LTD Seventh Applicant CITY POWER (PTY) LTD Eighth Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent SOUTH AFRICAN LOCAL
GOVERNMENT ASSOCIATION Second Respondent
REGISTRAR OF DEEDS, JOHANNESBURG Third Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT IN
MPUMALANGA PROVINCE Fourth Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT IN LIMPOPO
PROVINCE Fifth Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT IN NORTH
WEST PROVINCE Sixth Respondent NELSON MANDELA METROPOLITAN
MUNICIPALITY Seventh Respondent NOKUTHULA PHYLLIS MKONTWANA Eighth Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT AND HOUSING
IN THE PROVINCE OF THE EASTERN CAPE Ninth Respondent
ESKOM Tenth Respondent
KHAYALETHU HOME LOANS (PTY) LTD renamed as HLANO FINANCIAL SERVICES
(PTY) LTD Eleventh Respondent BUFFALO CITY MUNICIPALITY Twelfth Respondent PETER WILLIAM BISSET Thirteenth Respondent ANNA MARIE ELZA VAN DER STRAETEN Fourteenth Respondent NEDCOR BANK LIMITED Fifteenth Respondent
NOTICE OF MOTION
TAKE NOTICE THAT the MEC for Local Government and Housing (Gauteng Province) (“the MEC”) and the Minister for Provincial and Local Government (“the Minister”) apply in terms of s 167(6)(a) of the Constitution, read together with s 16(2)(a) of the Constitutional Court Complementary Act No. 13 of 1995 and Rule 17 of the rules of this Honourable Court, for an order–
1. Staying the application currently pending before the Witwatersrand Local Division of the High Court of South Africa under case number 02/24887 (“the WLD application”), pending the outcome of this application (and any proceedings which may flow therefrom) in the Constitutional Court;
2. Granting the applicants leave to bring the WLD application - insofar as it concerns prayers 1 to 9 of the notice of motion in that application - directly to this honourable Court.
3. Directing that the WLD application - insofar as it concerns the said prayers 1 to 9 - be heard on 3 March 2004, simultaneously with the following matters–
3.1. Nelson Mandela Metropolitan Municipality & Another v Nokuthula Phyllis Mkontwana (CCT: 57/03; case no. 1238/02 in the South Eastern Cape Local Division of the High Court); and
3.2. Minister of Provincial Affairs and Constitutional Development v Peter William Bisset & Others (CCT: 61/03); case no. 903/2002 in the South Eastern Cape Local Division of the High Court).
4. Giving such directions in relation to the filing of heads of argument and the record in the WLD application as this honourable Court may deem fit.
5. In the alternative to paragraphs 1 to 4 above, and only in the event of the applicants failing to secure the consent contemplated in rule 9(1) of the rules of this Honourable Court, admitting the applicants as amici curiae in the matters referred to in paragraphs 3.1 and 3.2 above.
6. Granting further and/or alternative relief.
7. Directing that the costs of this application be costs in the cause in the WLD application.
TAKE NOTICE FURTHER that the attached affidavit of CHARLSON RAPHADANA will be used in support of this application.
TAKE NOTICE FURTHER that the MEC and the Minister have appointed
the address of the Johannesburg State Attorney set out below as the address at which they will accept notice and service of all process in these proceedings.
TAKE NOTICE FURTHER that if you intend opposing this application you are required within 10 days after the lodging of this application to notify the
attorneys for the MEC and the Minister at their address as set out below and the Registrar of your intention to oppose.
TAKE NOTICE FURTHER that after your notice of intention to oppose has
been received by the Registrar or the time for doing so has expired, the matter will be disposed of in accordance with the directions of the Chief Justice as contemplated in Rule 17(4) and (5) of the rules of this Honourable Court.
DATED at JOHANNESBURG on this day of JANUARY 2004.
_____________________________
THE STATE ATTORNEY Attorneys for First, Second, Third, Fifth, Sixth, Seventh and Eighth Respondents
10th Floor Northstate Building 95 Market Street
Johannesburg
Ref: Mr Charleson Raphadana Tel: (011) 336 2961
Fax: (011) 337 7182
TO:
THE REGISTRAR OF THE CONSTITUTIONAL COURT JOHANNESBURG
AND TO:
MOODIE & ROBERTSON
Attorneys for Fifth, Sixth, Seventh and Eighth Applicants 9th Floor, 200 Smit Street
Braamfontein Johannesburg
Tel: (011) 403 6502 Fax: (011) 403 1973 Ref: Mr C Beckenstrater
Received copy on this
day of JANUARY 2004
_______________________
for: MOODIE & ROBERTSON Fifth, Sixth, Seventh and Eighth Applicants’ Attorneys
AND TO:
ROBERT J MARTINDALE ATTORNEYS
Attorneys for First, Second, Third and Fourth Applicants
24 Eighth Avenue Walmer
Port Elizabeth Tel: (041) 581 1294 Locally represented by:
VAN HULSTEYNS Primegro Place
East Annex 18 Rivonia Road Illovo
Tel: (011) 772 0800 Fax: (011) 772 0826
Ref: Mr H van Aswegen/ M49/
TRAC/R J Martindale AND TO:
Received copy on this day of JANUARY 2004
_______________________
for: ROBERT J MARTINDALE ATTORNEYS/VAN
HULSTEYNS First, Second, Third
and Fourth Applicants’ Attorneys
AND TO:
SOUTH AFRICAN LOCAL GOVERNMENT ASSOCIATION Sixth Respondent
6th Floor
HSRC Building 134 Pretorius Street Pretoria
Received copy on this
day of JANUARY 2004 _______________________
for: South African Local Government Association Sixth Respondent
AND TO:
McWILLIAMS & ELLIOT Attorneys for
NELSON MANDELA METROPOLITAN MUNICIPALITY (Seventh Respondent)
83 Parliament Street Central
Port Elizabeth Ref: R Hannington
Received copy on this day of JANUARY 2004
_______________________
for: McWilliams & Elliot
Seventh Respondent’s Attorneys
AND TO:
WATSON & TUCKER
Attorneys for Eighth Respondent 45 Newton Street
Newton Park Port Elizabeth
Ref: L Fourie/MA0680
Received copy on this day of JANUARY 2004
_______________________
for: Watson & Tucker
Eighth Respondent’s Attorneys
AND TO:
THE STATE ATTORNEY Ninth Respondent’s Attorney 29 Western Road
Central
Port Elizabeth Ref: 1449/2002/B
Received copy on this day of JANUARY 2004 _______________________
for: The State Attorney Port Elizabeth
Ninth Respondent’s Attorney
AND TO:
ESKOM
Tenth Respondent Mutual House Greenacres
Port Elizabeth Received copy on this day of JANUARY 2004 _______________________
for: Eskom
Tenth Respondent
AND TO:
KHAYALETHU HOME LOANS (PTY) LIMITED (renamed as HLANO FINANCIAL SERVICES (PTY) LIMITED
Eleventh Respondent Sanport Building
140 Govan Mbeki Drive Port Elizabeth
Received copy on this day of JANUARY 2004 _______________________
for: Khayalethu Home Loans (Pty) Limited (renamed as Hlano Financial Services (Pty) Limited
Eleventh Respondent
AND TO:
SMITH TABATA LEON & CONNELLAN INC Attorneys for Twelfth Respondent
(BUFFALO CITY MUNICIPALITY) c/o Mili Attorneys
110 High Street Grahamstown Ref: Mr D Mili
Received copy on this day of JANUARY 2004 _______________________
for: Smith Tabata / Mili Attorneys Twelfth Respondent’s Attorneys
AND TO:
BATE CHUBB & DICKSON INC.
Attorneys for Thirteenth, Fourteenth and Fifteenth Respondent
Suite 3 Norvia House 34 Western Avenue Vincent, East London Tel: (043) 701 4500 Fax: (043) 726 3777
Ref: A Kretzmann/S198/W17785
Represented in Grahamstown by NETTLETONS
118A High Street Grahamstown Ref: Mr Nettleton
Received copy on this day of JANUARY 2004
_______________________
for: Bate Chubb & Dickson Inc/
Nettletons
Thirteenth, Fourteenth and Fifteenth Respondent’s Attorneys
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD AT JOHANNESBURG
CASE NO._________
In the application of:
MEMBER OF THE EXECUTIVE COUNCIL FOR LOCAL GOVERNMENT AND HOUSING (GAUTENG PROVINCE)
and
MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT
In re:
TRANSFER RIGHTS ACTION CAMPAIGN First Applicant TREKNET PROP CC Second Applicant
MARION CAMERON NO Third Applicant DIANNA JENNIFER PARNELL Fourth Applicant CITY OF JOHANNESBURG
METROPOLITAN MUNICIPALITY Fifth Applicant EKURHULENI METROPOLITAN
MUNICIPALITY Sixth Applicant
JOHANNESBURG WATER (PTY) LTD Seventh Applicant CITY POWER (PTY) LTD Eighth Applicant
and
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent SOUTH AFRICAN LOCAL
GOVERNMENT ASSOCIATION Second Respondent
REGISTRAR OF DEEDS, JOHANNESBURG Third Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT IN
MPUMALANGA PROVINCE Fourth Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT IN LIMPOPO
PROVINCE Fifth Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT IN NORTH
WEST PROVINCE Sixth Respondent NELSON MANDELA METROPOLITAN
MUNICIPALITY Seventh Respondent NOKUTHULA PHYLLIS MKONTWANA Eighth Respondent MEMBER OF THE EXECUTIVE COUNCIL
FOR LOCAL GOVERNMENT AND HOUSING
IN THE PROVINCE OF THE EASTERN CAPE Ninth Respondent
ESKOM Tenth Respondent
KHAYALETHU HOME LOANS (PTY) LTD renamed as HLANO FINANCIAL SERVICES
(PTY) LTD Eleventh Respondent BUFFALO CITY MUNICIPALITY Twelfth Respondent PETER WILLIAM BISSET Thirteenth Respondent ANNA MARIE ELZA VAN DER STRAETEN Fourteenth Respondent NEDCOR BANK LIMITED Fifteenth Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
CHARLSON RAPHADANA
do hereby state under oath that:
1. I am a senior Assistant state attorney at the State Attorneys’ offices, 10th Floor North-state Building, 95 Cnr Market & Kruis Street,
Johannesburg. I am the attorney of record of the MEC for Local Government and Housing (Gauteng Province) (hereafter “the MEC”) and the Minister for Provincial and Local Government (hereafter “the Minister”).
2. I am duly authorised by the applicants in this application to depose to this affidavit in support of this application.
3. The facts set out in this affidavit are, unless otherwise stated, within my personal knowledge and are to the best of my belief both true and correct.
4. This application follows upon an application (“the access application”0 brought by the Transfer Rights Action Campaign and seven others for the relief sought in their notice of motion delivered on 15 December 2003. For the reasons that follow, the MEC and Minister’s counsel were involved in consultation to bring the access application, but could not obtain instructions in time to participate. Instructions have now been obtained and the MEC and the Minister bring this application to seek relief identical to that sought in the access application.
5. I have read the affidavit of HENDRIK CHRISTOFFEL VAN
ASWEGEN filed on behalf of the first to eighth applicants, and confirm
the citation of the parties therein given and the allegations insofar as they relate to the MEC and the Minister.
6. I wish to draw this Honourable Court’s attention to paragraph 7.3 of Van Aswegen’s affidavit in which mention is made of a meeting which took place of 8 December 2003 between counsel on brief for the parties mentioned in that paragraph.
7. As correctly explained in that paragraph, our counsel’s arrangement was to bring a joint application to this Honourable Court in order for it to be heard simultaneously with the ‘Mkontwana case’, but this was subject to my obtaining instructions from the applicants in this application as to whether or not they wished to be party to that joint application.
8. I, however, could not obtain instructions from the applicants in this application in time to join the first to eighth applicants in their
application to this Court launched on 15 December 2003. At the time of seeking instructions, after counsel had briefed me on the proposed joint application, the offices of the applicants in this application had already been closed for holidays and, as a result, the respective officers from whom instructions could be obtained were unavailable to give the required instructions.
9. I was only able to obtain instructions from the MEC and Minister on Tuesday, 20 January 2004, and have now brought this application without delay.
10. On behalf of the applicants in this application, the matters of Nokuthula Phyllis Mkontwana v Nelson Mandela Metropolitan Municipality &
Others (SECLD Case No.: 1238/02) and Peter William Bisset & Others
v Buffalo City Municipality & Others (SECLD Case No.: 903/02) jointly referred to as the ‘Mkontwana case’ in the first to eighth applicants’ application to this Court, are relevant to the WLD application in so far as the constitutional validity or otherwise of
section 118(1) of the Local Government: Municipal Systems Act 32 of 2000 (“the Systems Act”) is concerned. It is for this reason that the applicants in this application, together with the first to eighth
applicants, by way of direct access or admission as amici curiae, seek leave to make written submissions and present oral argument before this Honourable Court at the hearing of the Mkontwana case on 3 March 2004.
11. A synopsis of the constitutional issues in dispute between the parties in the WLD application has been presented in the affidavit for the first to eighth applicants, paragraphs 20 to 28. I am satisfied that this synopsis captures the essence of the issues to be determined in the WLD
application and I therefore do not repeat same here.
12. If the leave sought in this application is granted, this Court will have before it the factual averments made in the papers of the WLD application and also the different legal arguments to be presented before this Court concerning the constitutionally of section 118(1) of the Systems Act. This Court will, unlike the South Eastern Cape Local Division, have the advantage of being presented with a much bigger picture of the legal and factual issues associated with the provisions of section 118(1) of the Systems Act.
13. In their application, the first to eight applicants have dealt extensively with the basis upon which the access application is brought. As I have explained, counsel for the MEC and the Minister were involved in
formulating the application, but could not obtain instructions in time to participate in that application. To avoid unnecessary repetition, I adopt the contents of the affidavits of Mr Van Aswegen, and confirm its contents as it applies to the MEC and the Minister for the purposes of this application.
14. I, accordingly, pray for an order in terms of the notice of motion to which this affidavit is attached.
__________________________
DEPONENT
SIGNED and SWORN to BEFORE ME at JOHANNESBURG this the ……
day of JANUARY 2004, the deponent having acknowledged that she knows and understands the contents of this affidavit, that she has no objection to taking the prescribed oath and that she considers that said oath to be binding on her conscience.
