in the constitutional court of south africa

AFFIDAVIT

I, the undersigned,

ALF DION MAGERMAN

do hereby make oath and state that:

1. I am the Manager: Legal Services of the Respondent, a local municipality established in terms of the provisions of the Local Government: Municipal

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Structures Act, 1998, which has its principal administrative offices situated care of the Office of the Municipal Manager, 12 Main Road, Vredenburg, Western Cape.

2. The facts hereinafter contained are, save where otherwise appears from the context, within my personal knowledge and true and correct. Where submissions are made herein in regard to matters of law, this has been done on the basis of the advice I have received from the Respondent’s legal representatives, which advice I verily believe to be true and correct.

3. I am duly authorised to depose to this affidavit on behalf of the Respondent, in support of an application for leave to adduce further evidence before the Court at the hearing of the application for leave to appeal in this matter, which has been set down for 28 May 2013.

4. The Respondent begs the Honourable Court’s leave to place before it a copy of the Combined Summons, Particulars of Claim and annexure “A”

thereto which was issued by the Appellants out of the Western Cape High Court on 15 December 2011 (under Case No: 25607/11). A copy of the aforesaid documents is annexed hereto marked annexure “AM1”.

5. The application which forms the subject of the appeal in this matter, was issued by the Appellants out of the Western Cape High Court, on 2 July 2010 (under Case No: 14190/2010). In due course the Respondent filed its

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answering papers and after the Appellants filed their replying affidavits the Honourable Mrs Acting Justice Cloete (as she then was) heard argument in respect of the application on 25 and 26 May 2011, and handed down a judgment on 6 June 2011, in terms of which she upheld the application. (A copy of the judgment can be found in Vol 6:484-511 of the record). On 30 August 2011, Cloete AJ refused leave to appeal. On 9 November 2011 such leave was granted by the Supreme Court of Appeal,.

6. Subsequently, on 30 November 2012, the Supreme Court of Appeal upheld the appeal and set aside the judgment of the Court a quo, substituting it with an order dismissing the application with costs. Appellants now seek leave to appeal to this Court, against the aforesaid judgment of the Supreme Court of Appeal.

7. The Appellants contend (in an affidavit lodged on their behalf by one Horst Psotta, the Managing Director of the Fourth Appellant) that, in the interests of justice, leave to appeal to this Court should be granted. In this regard, the Appellants submit that the Supreme Court of Appeal erred in concluding that it was not called upon to decide whether or not the Respondent was under an obligation to account to the Appellants, and they contend further that leave to appeal should be granted as the matter raises important constitutional issues in relation to the Respondent’s constitutional obligations to its ratepayers.

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8. The Honourable Court will note that, in paragraph 2 of the original Notice of Motion which the Appellants filed in the Western Cape High Court, they sought an Order directing the Respondent to account to them in respect of sums of money allegedly overpaid by them, for and in respect of ‘capital contributions’ (in terms of s 42 of the Land Use Planning Ordinance 15 of 1985), which the Appellants contended were unlawfully levied by the Respondent, in accordance with a Resolution R43/12-07, which was passed by the Respondent’s council on 4 December 2007.

9. The Honourable Court will note that, other than a brief paragraph in the founding affidavit (para 16.1 at p 10 of Vol 1 of the record) wherein the Appellants simply restated the terms of the Order they sought in respect of the aforesaid accounting by the Respondent, the Appellants did not set out any statutory, contractual or constitutional basis for such relief, in the founding affidavit.

10. In paragraph 39 et seq of the founding affidavit (Vol 1, p 26 et seq), the Appellants set out their computations of the amounts allegedly overpaid by each of them, and in the replying affidavit, the Appellants provided further information and detail in this regard. To this end the Appellants annexed a spread-sheet to the replying affidavit (annexure “R12” at Vol 5: 431-433) in which they set out detailed calculations of the various amounts actually paid by each of them, to the Respondent, between 2007 and 2011, as opposed to what they alleged should have been paid by them, and they accordingly

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set out the consequent overpayments made by each of the Appellants, for the 5 years in question. As was pointed out by the Honourable Judge a quo (at para 71 of the judgment, Vol 6: 506 of the record), the nett value of the Appellants’ alleged overpayment was stated to be in the order of R8.7 million.

11. Notwithstanding the detailed quantification of the alleged overpayment by the Appellants, as indicated above, in terms of the Order which the Court of first instance handed down on 6 June 2011 the Respondent was directed to account to the Appellants in respect of all sums ‘overpaid’ by them in respect of capital contributions ‘unlawfully levied’ by the Respondents, in terms of Resolution R43/12-07,.

12. The Honourable Court will note that, on 15 December 2011 ie some six months after judgment was handed down, the Appellants issued the Summons and Particulars of Claim (of which a copy is enclosed herewith marked annexure “AM1”) which essentially repeated the essential averments made by the Appellants in the instant application, and in which it was contended that the Appellants have allegedly overpaid the Respondent in the total sum of R11 694 451.00, as quantified and set out in a spread- sheet which was annexed to the pleadings as annexure “A” thereto. The aforesaid spread-sheet appears to be an updated and amended version of the spread-sheet which was filed by the Appellants as part of their replying affidavit, the year before.

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13. Given that the aforesaid Summons and Particulars of Claim (annexure

“AM1” hereto) was issued out of the Court after judgement in the matter

had already been handed down, the contents of such pleading could obviously not be sought to be admitted at the hearing of the application a quo.

14. I am further informed and verily believe that, inasmuch as the hearing of the appeal before the Supreme Court of Appeal turned around the issue of the validity and enforceability of the tariffs which were charged as they were incorporated in the Appellants’ various applications for approval, in distinction with their earlier promulgation in terms of the Respondent’s resolutions, it was not necessary for a copy of the attached Summons, Particulars of Claim and annexure thereto (annexure “AM1” hereto) to be placed before the Supreme Court of Appeal, as this was not necessary for an adjudication of the issues on appeal before the SCA.

15. However, I am informed and verily believe that, inasmuch as the issue of whether or not the Respondent is liable to account to the Appellants is the central and primary issue on which the Appellants now seek leave to appeal to this Court, it is necessary for a proper ventilation of the issues in dispute at the hearing of the application for leave to appeal that the Court be apprised of the fact that the Appellants have issued Summons against the Respondent for and in respect of amounts allegedly overpaid by them, in a

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clearly quantified sum, as set out on the spread-sheet (annexure “A”) to the aforesaid Summons.

16. In the circumstances, I respectfully submit that, in the exercise of its discretion, the Honourable Court should receive a copy of the aforesaid Summons, Particulars of Claim and the annexure thereto (annexure “AM1”

hereto) as further evidence. I respectfully submit that the contents of the aforesaid pleading constitutes evidence which is weighty and material to the issues which are to be adjudicated upon, and determined by, the Honourable Court and, inasmuch as the evidence emanates from the Appellants themselves, it is not subject to any dispute of fact. I respectfully submit that the evidence which is contained in the aforesaid Summons, Particulars of Claim and annexure thereto, is evidence which is materially relevant to the outcome of the issues at hand in this matter and impacts upon the relief sought by the Appellants a quo, as well as before this Honourable Court. Further argument in this regard will be addressed to the Court at the hearing of this matter.

17. On 13 March 2013, shortly after their receipt of Directions from the Senior Registrar of this Court (in terms of which the matter was set down and dates for the filing of the record and heads of argument were set), Respondent’s attorneys addressed a letter to the Appellants’ attorneys, in which they requested the Appellants’ consent to the admission of the aforesaid Summons, Particulars of Claim and annexure thereto, as further

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evidence at the hearing of the application for leave to appeal, and the appeal itself, in the event that the Court was minded to grant the application for leave to appeal. A copy of the letter is annexed hereto marked annexure

“AM2”.

18. On 14 March the Appellants’ attorneys replied thereto in a letter of which a copy is similarly enclosed herewith marked annexure “AM3”. In such letter the Appellants stated that they were of the view that the aforesaid documents should not be included as part of the record for the purposes of the application for leave to appeal, and that the Respondent should consequently make application to this Court for the admission thereof.

19. A further request in this regard from the Respondent’s attorneys motivating why the Respondent sought to have the aforesaid pleading admitted, was also turned down by the Appellants’ attorneys. Copies of the correspondence which the parties exchanged in this regard is enclosed herewith, marked annexures “AM4” and “AM5”.

20. In the circumstances Respondent has been compelled to make application to this Court for the admission of such further evidence, and in the event that this application is opposed Respondent submits that the Court should direct that the Appellants are to be liable, jointly and severally (the one paying the other to be absolved) for the costs thereof.

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WHEREFORE I pray that the Honourable Court may grant an Order in the terms set out in the Notice of Motion which is affixed hereto.

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ALF DION MAGERMAN

I certify that the above affidavit was signed and sworn to at Vredenburg before me on this the 28^th day of March 2013 by the deponent after he declared that he knew and understood the contents of this affidavit, that he had no objection to taking the prescribed oath which he regarded as binding on his conscience, and after he uttered the words: “I swear that the contents of this affidavit are true, so help me God”.

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COMMISSIONER OF OATHS