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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN)
Case No.: CCT 279/16 Case No.: JA 111/2014
Case No.: J 1107/11 Case No.: GAJB 25032 - 11
In the matter between:
CMI Business Enterprise CC Applicant
and
Theo September First Respondent
Dean September Second Respondent
Roland Paulson Third Respondent
FOUNDING AFFIDAVIT
I, the undersigned,
PETRUS CHRISTIAAN CRONJĖ state under oath as follows:
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1 I am an adult male residing at Plot 143, 3rd Street, Vischkuil, Gauteng.
2 The contents of this affidavit are, save where the contrary appears from the context or specifically stated, within my personal knowledge and belief and are both true and correct.
3 Submissions of law are made on advice.
4 Insofar as I rely on hearsay evidence, I have considered this evidence and believe that it is true and correct.
5 I am employed by Applicant as its managing member.
6 I hold the entire membership interest in Applicant.
7 I annex hereto marked FA - 01 an extract from the records of the Companies and Intellectual Property Commission confirming that I hold the entire membership interest in Applicant.
8 I am therefore duly authorised to depose to this affidavit.
9 THE PARTIES
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9.1 Applicant is CMI Business Enterprise CC (with Registration number 2002/099903/23), a Close Corporation duly registered and incorporated in accordance with the provisions of the Close Corporations Act 69 of 1984, with its registered office and principle place of business situated at Plot 143, 3 rd Street, Vischkuil, Gauteng Province.
9.2 First Respondent is Mr. Theo September, an adult male, who resides at 97 Leeuhoff, Vereeniging, Gauteng Province.
9.3 Second Respondent is Mr. Dean September, an adult male, who resides at 53 Opkoms Street, Alabama, Klerksdorp, Northwest Province.
9.4 Third Respondent is Mr. Roland Paulsen, an adult male, who resides at 55 Stable Crescent, Leeuhof, Vereeniging, Gauteng Province.
10 THE NATURE OF THIS APPLICATION
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This is an application in terms of Rule 32 to condone Applicant’s non-compliance with Rule 19 (4) (a) of this Honourable Court’s Rules.
11 CHRONOLOGY OF MATERIAL FACTS
11.1 On 20 October 2016, I consulted Dr. J.F Botha (hereinafter referred to as “Dr. Botha”), a general medical practitioner for treatment of severe lower back pain, with the pain radiating to my left leg.
11.2 I have been a patient of Dr. Botha since 1998.
11.3 Dr. Botha’s consulting rooms are situated at 69 Ermelo Road, Strubenvale, Springs.
11.4 Dr. Botha treated me for pain and referred me to a neurosurgeon, Dr. W van der Meulen (hereinafter referred to as “Dr. van der Meulen”), whom I consulted with on 31 October 2016.
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11.5 Dr. van der Meulen recommended that for the time being I should continue with the pain medication that Dr. Botha prescribed.
11.6 On 11 November 2016 the pain in my back increased to such intensity that I was unable to walk, sit or lie down for any extended period or to drive my motor vehicle.
11.7 Though Applicant’s business is conducted from my residential address, Applicant’s offices are at least 30 (thirty) metres away and separate from my residence, facing the opposite side of my smallholding.
11.8 Physically it was impossible for me to walk to Applicant’s offices from my residence and pain precluded me from performing the most menial tasks.
11.9 Due to the pain that I experienced I could not attend to Applicant’s business affairs at all during the week commencing 14 November 2016.
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11.10 My situation was furthermore compounded by the fact that prescribed medication left me drowsy, confused and affected my concentration.
11.11 On 16 November 2016, First, Second and Third Respondents Application for Leave to Appeal to this Honourable Court was served on the firm Klopper Jonker Inc., who was Applicant’s attorneys of record in the Labour Court under Case No. JS 1107/11 and in the Labour Appeal Court under Case No. JA 111/2014.
11.12 On 17 November 2016, Mr. Emile Ungerer (hereinafter referred to as “Mr. Ungerer”), who is a senior partner at the firm Klopper Jonker Inc. contacted Applicant’s offices personally due to the importance of this matter in order to obtain a mandate from me whether First, Second and Third Respondent’s Application for Leave to Appeal to this Honourable Court should be opposed.
11.13 Mr. Ungerer was informed by Applicant’s offices that I would not have been available for a while and that I could not take any telephone calls due to the state of my health.
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11.14 The pain in my lower back intensified and became so unbearable that Dr. Botha again treated me on 18 November 2016 with anti-inflammatories, stronger analgesics as well as Toradol and Tramal injections for pain.
11.15 Dr. Botha referred me back to Dr. van der Meulen for a re - evaluation of my treatment plan.
11.16 I annex hereto marked FA - 02 a medical report from Dr.
Botha confirming my medical treatment.
11.17 Despite my treatment by Dr. Botha on 18 November 2016, I still experienced excruciating pain and with stronger medication prescribed, it affected my concentration even more and left me drowsier and more confused than the medication prescribed prior to 18 November 2016.
11.18 On 21 November 2016, Mr. Ungerer again contacted Applicant’s offices and was informed once more that I would not have been available for a while and that I could not take any telephone calls, due to the state of my health.
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11.19 In this regard I may add that except for a few calls, I avoided taking any calls on my cellular phone since 14 November 2016 due to the effect of the prescribed medication on me and the pain that I encountered when I moved.
11.20 The pain in my lower back continued unabated and on 22 November 2016 I consulted again with the neurosurgeon, Dr. van der Meulen who prescribed even stronger analgesics, Oxycontin 10 mg Prolo.
11.21 Dr. van der Meulen also informed me during this consultation that on 30 November 2016 he would perform surgery on my back.
11.22 On 22 November 2016, Mr. Ungerer contacted counsel, Advocate Etienne Cosyn (hereinafter referred to as “Adv.
Cosyn”) who appeared for Applicant in the Labour Court and informed him that First, Second and Third Respondents applied for leave to appeal against the Labour Appeal Court’s judgement to this Honourable Court.
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11.23 He also informed Adv. Cosyn that he was extremely concerned that he could not get hold of me and that he was informed that I would not be available for a while and that I could not take any telephone calls due to the state of my health.
11.24 Mr. Ungerer and Adv. Cosyn compared my contact numbers and both of them had the same numbers.
11.25 Mr. Ungerer then requested Adv. Cosyn’s assistance to try and establish contact with me.
11.26 Meanwhile, the prescribed analgesics had no effect on the level of pain I experienced and my daughter in law, Cindy Cronje (hereinafter referred to as my “daughter in law”) contacted Dr. van der Meulen on 23 November 2016 to enquire whether it would be possible to administer alternative treatment as discussed during the consultation held with him on 22 November 2016.
11.27 What I can recall is that the alternative treatment would entail injecting “painkillers” directly into my vertebrae.
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11.28 Dr. van der Meulen informed my daughter in law that I should rather be admitted to hospital and that he would book me for emergency surgery on 27 November 2016.
11.29 By chance on the same day Adv. Cosyn got hold of me on my cellular phone, informed me of the Application for Leave to Appeal and urged me to contact Mr. Ungerer with a mandate.
11.30 I informed Adv. Cosyn that I was going to be admitted to hospital on 24 November 2016 and that I was informed that surgery would be performed on 27 November 2016.
11.31 I also informed him that I would contact Mr. Ungerer with a mandate as soon as I was in a position to do so.
11.32 On 24 November 2016 I was admitted to the Union Hospital.
11.33 I annex hereto marked FA - 03 a copy of the hospital’s Discharge Record, confirming that I was admitted on 24 November 2016.
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11.34 Once I was admitted to hospital my pain management was continued and intensified.
11.35 Needless to state the medication left me drowsy, confused and unable to concentrate, and I still experienced high levels of pain and discomfort.
11.36 The pain that I experienced frequently caused me to become nauseas and I was informed by the nursing staff prior to my discharge that pain medication was injected into me at 4 (four) hourly intervals during my hospital stay prior to surgery.
11.37 Notwithstanding the fact that my daughter-in-law was informed that surgery would be performed on 27 November 2016, I learned that surgery was only performed on me on 28 November 2016.
11.38 By 1 December 2016 my pain levels and discomfort decreased and I contacted Applicant’s current attorneys of record and instructed them that Applicant wished to oppose
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the Application for Leave to Appeal to this Honourable Court.
11.39 I was also discharged from hospital on 1 December 2016.
11.40 The date of my discharge is confirmed by Annexure FA - 03.
11.41 I was informed by Dr. van der Meulen prior to my discharge from hospital that I should avoid travelling and sitting after my discharge and that I am still medically unfit to resume my duties with Applicant.
11.42 Dr. van der Meulen furthermore informed me that he will assess my fitness in January 2017.
11.43 Dr. van der Meulen issued me with a medical certificate.
11.44 A copy of the medical certificate is annexed hereto marked FA - 04.
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11.45 The date on which I may resume duties will be appended on the medical certificate once Dr. van der Meulen has assessed my fitness to resume duties in January 2017.
11.46 I did not wish to inconvenience this Honourable Court any further and since I was not able to travel to counsel’s chambers for consultations, consultations were conducted at my place of residence on 2 December 2016.
11.47 During consultations I still experienced considerable discomfort to the extent that I had to remain standing for the duration thereof.
11.48 In view of the history of the matter, Applicant’s attorneys of record assumed prior to the confirmation of Applicant’s instructions on 1 December 2016, that Applicant would oppose the Application for Leave to Appeal to this Honourable Court.
11.49 Therefore on 30 November 2016 Applicant’s attorneys of record addressed correspondence to Respondent’s attorneys and the Registrar of this Honourable Court advising both parties that it will not be able to deliver any
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opposing papers by 30 November 2016 and that it anticipated delivering these papers on or before 6 December 2016, with an application for condonation for the late delivery thereof.
11.50 I annex hereto marked Annexure FA - 05 a copy of the correspondence.
12 THE APPLICATION FOR CONDONATION
12.1 I am advised that Rule 32(1) of this Honourable Court’s Rules provide that “ The Court or the Honourable Chief Justice may – (1) of their own accord or on application and on sufficient cause shown, extend or reduce any time period prescribed in these rules and may condone non - compliance with these rules; …..”.
12.2 I am advised further that with an application for condonation, in deciding whether sufficient or good cause has been shown, the basic principal is that the Court has a discretion to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides and that among the facts usually relevant are the
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degree of lateness, the explanation therefore, the prospects of success and the importance of the case.
12.3 The Degree of Lateness
12.3.1 Applicant’s response to Respondent’s Application for Leave to Appeal is 4 (four) days late, calculated in accordance with the provisions of Rule 9 (4) (a) and Rule 1 of this Honourable Court’s Rules.
12.3.2 I respectfully submit that the delay is slight and not of such an extent, that condonation should be refused on this basis.
12.4 Explanation for the Lateness
12.4.1 I respectfully submit that it is clearly apparent from the contents of paragraphs 11.1 - 11.41 of this affidavit, that Applicant has given a reasonable and acceptable explanation for the delay, to the extent that such an explanation is entirely satisfactory.
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12.4.2 In amplification of the contents of paragraphs 11.1 to 11.41 of this affidavit, I respectfully submit that -
12.4.2.1 The crisp issue at play is that I was medically incapacitated to such an extent that I could not provide Applicant’s attorneys of record with a mandate to oppose First, Second, and Third Respondents Application for Leave to Appeal to this Honourable Court.
12.4.2.2 Even if Applicant’s attorneys of record were able to make contact with me before 23 November 2016, I would not have been able to provide them with a clear mandate to oppose the Application for Leave to Appeal, due to my cognitive functions being impaired, or at any other date prior to my discharge from hospital.
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12.4.2.3 In any event, as a sole member of Applicant I am the only person that could have provided Applicant’s attorneys of record with a mandate to oppose First, Second and Third Respondents Application for Leave to Appeal and could not have delegated my authority to provide a mandate , due to my cognitive functions being impaired.
12.4.3 My incapacity commenced on 31 October 2016 and still remains, though granted to a lesser extent as at the date of signature of this affidavit.
12.4.4 Despite my incapacity, I did not wish to inconvenience this Honourable Court any further and since I was not able to travel to counsel’s chambers for consultations, consultations were conducted at my place of residence on 2 December 2016.
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12.4.5 In view of the contents of paragraphs 12.4.1 to 12.4.4 of this affidavit and the subparagraphs thereto, I respectfully submit that it cannot be said that Applicant’s non-compliance with Rule 19 (4) (a) of this Honourable Court’s Rules, were due to either any form of negligence, ineptitude or wilfulness on the part of Applicant, its attorneys or me and that no party so mentioned can bear any fault for the delay.
12.4.6 I respectfully submit that on an overall and objective evaluation of the reasons proffered by Applicant for the lateness or delay in the delivery of its response to First, Second and Third Respondents Application for Leave to Appeal, reveals that Applicant has given a reasonable and acceptable explanation for the lateness or delay, to the extent that such an explanation is entirely satisfactory.
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12.5 Applicant’s Prospects of Success
12.5.1 The merits of Applicant’s opposition to First, Second and Third Respondents Application for Leave to Appeal to this Honourable Court appear from the contents of Applicant’s answering affidavit in that application.
12.5.2 I respectfully submit that Applicant’s answering affidavit in the Application for Leave to Appeal to this Honourable Court discloses a bona fide and cogent defence against the application and therefore cannot be said to be patently unfounded.
12.6 The Importance of this Case in the Public Interest
I respectfully submit that this case bears importance in the public interest for reasons set forth in Applicant’s answering affidavit in the Application for Leave to Appeal.
12.7 Prejudice or Balance of Convenience
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12.7.1 I am advised that First, Second and Third Respondents are being represented pro bono.
12.7.2 In view thereof I respectfully submit that First, Second and Third Respondents cannot argue if they do elect to oppose this application, that they have incurred or will incur additional legal expense and as a result thereof that they will suffer any form of financial prejudice.
12.7.3 I respectfully submit that given that the lateness or delay is only 4 (four) days, First, Second and Third Respondents cannot claim that it will lead to an unnecessary delay in the administration of justice, or the satisfaction of the judgement debt imposed by the Labour Court.
12.7.4 Applicant has incurred substantial legal expense in the Labour and Labour Appeal Court in opposing judgement granted to First, Second and Third Respondents in the former Court.
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12.7.5 If condonation is not granted by this Honourable Court, I respectfully submit it will deprive Applicant from the right to oppose the Application for Leave to Appeal against which it has a bona fide and cogent defence and needless to say, an injustice will be perpetrated against Applicant.
12.7.6 Applicant has a vested right to pursue early finality in the matter by opposing the Application for Leave to Appeal thereby curbing legal expense, and I respectfully submit that this right will be infringed upon if condonation is not granted.
12.8 The Convenience of this Honourable Court
12.8.1 I sincerely apologise to this Honourable Court for Applicant’s non-compliance with Rule 19 (4) (a) of this Honourable Court’s Rules.
12.8.2 However, I once again respectfully submit that the lateness or delay in delivering Applicant’s response in terms of Rule 19 (4) (a) of this
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Honourable Court’s Rules were not due to either any form of negligence, ineptitude or wilfulness on the part of Applicant, its attorneys or me and that no party so mentioned can bear any fault for the delay.
12.8.3 However, I sincerely believe that this Honourable Court will not be inconvenienced by the slight delay which has been occasioned.
13 STATEMENT OF LEGAL ISSUES
I respectfully submit that Applicant has shown good and/or sufficient cause that its non-compliance with Rule 19 (4) (a) of this Honourable Court’s Rules should be condoned.
Wherefore Applicant humbly prays for an order in terms of the Notice of Motion to which this affidavit is annexed.
……….
PETRUS CHRISTIAAN CRONJĖ
Signed before me at ………on this the ...
day of December 2016, the deponent having sworn that the contents of
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this affidavit are true, acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the
prescribed oath and that he considers the prescribed oath to be binding on his conscience.
………
Commissioner of oaths Full name:
Business address:
Designation: