CASE NO.: CCT 70/10
In the matter between:
ARNOLD MICHAEL STAINBANK Applicant
and
SOUTH AFRICAN APARTHEID MUSEUM
AT FREEDOM PARK First Respondent
TAXING MASTER FOR THE NORTH
GAUTENG HIGH COURT Second Respondent
FIRST RESPONDENT’S PRACTICE NOTE
1.
The proceedings comprise the following applications by the Applicant:-
Nature of Proceedings
• for substantive relief premised on direct access;
• to amend that application in order to be, instead, an application for leave to appeal to this Court, and, if successful;
• for leave to appeal to this Court;
• for condonation to complete the Applicant’s Written Submissions; and
• to adduce further evidence.
2. Issues to be argued1
• whether the case raises a constitutional matter;
• whether the application to amend should be granted;
• if not, should the application for substantive relief premised upon direct access, be granted;
1 Note: There is a Directive from the Chief Justice in this matter, dated 6 September 2010. Paragraph 2 states that the “application for direct access” and “the application to amend” are set down for hearing – i.e. oral argument. However, paragraphs 5 and 6 direct the Written Submissions to cover a number of further issues. Clarity has been requested from the Senior Registrar as to whether the oral argument will be so confined. As at date hereof, this is still awaited.
• if the application to amend is granted, whether it is in the interests of justice for leave to appeal to be granted;
• whether the order for costs granted by Ebersohn AJ is competent;
• the application to adduce further evidence; and
• the costs of the proceedings before this Court.
3.
In this Counsel’s view, all affidavits.
Necessary portions of the record
4.
First Respondent’s address should not exceed 1 hour.
Duration of Argument
5.
5.1 The case does raise a constitutional matter.
Summary of the Argument
5.2 The application to amend should not be granted for two reasons:-
• There is no prospect of success in an application for leave to appeal, so that it is not in the interests of justice to grant the amendment.
• There is a lack of candour accompanying the application.
5.3 If leave to amend is not granted, the application for substantive relief premised upon direct access cannot be granted, given Section 167(6) of the Constitution.
5.4 If the application to amend is granted, it is not in the interests of justice for leave to appeal to be granted.
The reasons are the following:-
(a) the object of the proceedings which are alleged to be tainted by the judge’s bias is now moot;
(b) the onus upon the Applicant to rebut the presumption of judicial impartiality has anyway not been discharged;
(c) the prospects of success in an appeal are remote;
(d) burdening another court with a rehearing of an application which (apart from being in relation to a moot point) has little prospect of succeeding is not in the public interest, which requires finality to
litigation and as clog-free a court system as possible; and
(e) the Applicant’s resort to ostensibly abusive litigation tilts any balance that may exist in an adjudication of the application against his favour.
5.5 The order for costs granted by Ebersohn AJ is not usual but nor were the circumstances and nor is it incompetent.
5.6 Save to inform this Court that the taxation sought to be stayed by way of the proceedings initiated by the Applicant in the Court of first instance has taken place and has been concluded, the further evidence sought to be adduced is irrelevant and is inadmissible. It is also incorrect in fact.
5.7 There is no compelling reason why (at least) the usual costs order, in respect of all the proceedings before this Court, should not be made.
__________________
OWEN SALMON
Counsel for First Respondent Maisels Chambers
•
LIST OF AUTHORITIES
Affordable Medicines Trust and Others v Minister of Health &
Others
•
2006 (3) SA 247 (CC).
Biowatch Trust v Registrar Genetic Resources
•
2009 (6) SA 232 (CC).
Brown v Papadakis and Another NNO
•
2009 (3) SA 542 (C) at 545 G,
Caxton Ltd v Reeva Forman (Pty) Ltd
•
1990 (3) SA 547 (A) at 565 G – 566 A.
Christian Education South Africa v Minister of Education
• Cilliers,
1999 (2) SA 83 (CC).
The Law of Costs
• Erasmus,
(Lexis Nexis) Issue 22 paragraphs 2.22, 15.25
Superior Court Practice
•
at pages B1 – 178 to B1 – 184 C.
Estate Garlick v Commissioner for Inland Revenue 1934 AD 499 at 505
• Hepner v Roodepoort Maraisburg Town Council
•
1962 (4) SA 772 (A).
Jos Crosfeld & Sons Ltd v Nils Testrup
•
1912 TPD 696.
Kini Bay Village Association v Nelson Mandela Metropolitan Municipality, Chase Street Properties (Pty) Ltd and Pierre Kolesky
•
2009 (2) SA 166 (SCA).
Miele et Cie Gmbh v Euro Electrical (Pty) Ltd
•
1988 (2) SA 583 (A).
Netlon Ltd v Pacnet (Pty) Ltd
•
1977 (3) SA 840 (A).
Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
•
1984 (3) SA 623 (A).
President of the Republic of South Africa and Others v South African Rugby Football Union and Others
•
1999 (4) SA 147 (CC).
R v Silber 1952 (2) SA 475 (A).
• South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing)
•
2000 (3) SA 704 (CC).
Stuttaffards Stores (Pty) Ltd and Others v Salt of the Earth Creations (Pty) Ltd and others
•
[2010] ZACC 14.
Take And Save Trading CC and Others v Standard Bank of SA Ltd
•
2004 (4) SA 1 (SCA).
Traub v Barclays National Bank Ltd
•
1983 (3) SA 619 (A).
Western Assurance Co. v Caldwell’s Trustee
•
1918 AD 262 at 272 and 274.
Western Cape Housing Development Board and Another v Parker and Another
•
2005 (1) SA 462 (C).
Zietsman v Electronic Media Network Ltd and Others 2008 (4) SA 1 (SCA) at paragraph [4].
