IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 01/14
In the application of:-
SOUTH AFRICAN POLICE SERVICE APPLICANT
AND
SOLIDARITY obo MRS R M BARNARD RESPONDENT
NOTICE OF APPLICATION TO SUPPLEMENT THE RECORD
KINDLY TAKE NOTICE that the Applicant hereby applies for directions, alternatively an order, in the following terms:
1. The Applicant is granted leave to supplement the record with the documents listed in Annexure “A” attached to the Notice of Application.
2. The Applicant is granted leave to file, with the supplemented record, an amended Statement of Disputed Factual Findings, amended only to incorporate references to the supplemented record in this Court.
3. To the extent that it may be necessary, the Applicant is granted condonation for non-compliance with the rules of this Court and/or the Directions issued by the Chief Justice on 28 January 2014.
4. Costs only in the event of opposition.
5. Further and/or alternative relief.
SIGNED AND DATED at JOHANNESBURG on the March 2014.
_______________________________________
THE STATE ATTORNEYS APPLICANT’S ATTORNEYS 10th Floor, North State Building 95 Albertina Sisulu, Corner Kruis Street Private Bag X9, Docex 688
Johannesburg, 2000 Tel: (011) 330-7664 Fax: (011) 333 1683 Ref: 2174/07/P17/vm Refer To: MB LEKOLOANA
TO: THE REGISTRAR OF
ABOVE HONOURABLE COURT
AND TO: SERFONTEIN VILJOEN & SWART ATTORNEYS RESPONDENT’S ATTORNEY
165 Alexander Street Brooklyn
PRETORIA
TEL: (012) 362 2556 FAX: (012) 362 2557
REF: Mr Swart/Mr Claassen/fb/CB
Received copy hereof on this __ day of March 2014.
_____________________________
RESPONDENT’S ATTORNEYS
ANNEXURE A
1. Barnard’s Statement of Claim in the Labour Court
2. Transcript of Ramathoka’s evidence in the Labour Court
3. Transcript of Barnard’s evidence in the Labour Court
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 01/14
In the application of:-
SOUTH AFRICAN POLICE SERVICE APPLICANT
AND
SOLIDARITY obo MRS R M BARNARD RESPONDENT
_____________________________________________________________
AFFIDAVIT IN SUPPORT OF APPLICATION TO SUPPLEMENT THE RECORD
______________________________________________________________
I the undersigned,
MASILO BRIAN LEKOLOANA
do hereby make oath and state that.
1 I am an adult male person and a practising attorney in the office of the State Attorney Johannesburg, the Applicant’s attorneys of record in this matter.
2 The contents of this affidavit are within my personal knowledge, unless the context indicates otherwise, and are to the best of my knowledge and belief true and correct.
3 This affidavit is filed in support of the Applicant’s application to supplement the record filed by the Applicant in accordance with paragraph 4 of the Directions issued by the Chief Justice on 28 January 2014. A copy of the Directions are attached marked
“ML1”.
4 The Applicant seeks to supplement the record filed in the following respects:
4.1 To include additional portions of the record in the Supreme Court of Appeal, which portions are referred to in the Applicant’s heads of argument, and which the Applicant places reliance upon in this Court. I point out that the Applicant seeks to include the full evidence of Senior Superintendent Ramathoka in the Labour Court (item 2 in Annexure A), as it relies on this evidence in argument and in order to enable the Court to assess the Supreme Court’s Appeal’s finding at paragraph 44 that “much of the evidence was plainly inadmissible” (page 64 of the record).
4.2 To include the transcript of the evidence given in the Labour Court by Mrs Barnard (item 3 in Annexure A). The Applicant seeks to put the full evidence of Mrs Barnard before the Court in order to respond to the contention made by the Respondent in paragraph 2 of its Summary of Factual Findings that “Captain Barnard testified that, as a
fact, [Superintendent Prinsloo] was still in the position in question at the time of the trial”.
5 I respectfully submit that the inclusion of the abovementioned portions of the record would be of assistance to the Court, particularly as the Applicant shall rely upon them in argument.
6 The Applicant’s failure to include the above portions of the appeal record was a result of bona fide confusion as to what was required to be filed in the record for the purposes of the hearing. Counsel also prepared the heads of argument without sight of the record because I experienced difficulties in delivering the record to them.
Having discussed the matter with counsel, it has become clear that the record which I prepared and filed is inadequate and requires supplementation.
7 I submit that no prejudice would be caused by supplementing the record with the items listed in Annexure A. The Respondent has not yet filed its heads of argument, which are due to be filed on 14 March 2014. The Respondent will accordingly have an opportunity to address the additional portions of the record in its written submissions, should it need to do so.
8 I should mention that the Applicant sought to obviate the need to bring this application by seeking the consent of the Respondent’s
attorney. This request was rejected. The Respondent’s attorney insisted on a formal application being launched.
9 I also note that there are errors of pagination in the record which has been filed: there is no page number 202, 316 and 317. I have checked the record and confirm that there are no pages missing from the record, and that this is only a pagination error. I sincerely apologise for any confusion and inconvenience caused by this error.
10 Accordingly, I pray for directions and/or an order of court, as may required, granting the Applicant leave to supplement the record and to file an amended statement of facts with the references to the supplemented record. I further pray for condonation for non- compliance with the rules of this Court and/or the Court’s Directions, as may be required.
___________________________
DEPONENT
I hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of her knowledge both true and correct. This
affidavit was signed and sworn to before me at on this the day of MARCH 2014, and that the Regulations contained in Government
Notice R.1258 of 21 July 1972, as amended, have been complied with.
________________________________
COMMISSIONER OF OATHS Full names:
Address:
Capacity:
