IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO: CCT/5705 TPD CASE NO: 14068/05 In the matter between:-
SOUTH AFRICAN LIQUOR TRADERS ASSOCIATION First Applicant
VIRGINIA MKIZE Second Applicant
MINKI MARYSTELLA NETSHADAMA Third Applicant MOLEFI JACOB MOGODORI Fourth Applicant BLANCHE MARGARET MARIA ALLIES Fifth Applicant
DGB (PTY) LIMITED Sixth Applicant
KWV SA (PTY) LIMITED seventh applicant
JONKHEER BOEREWYNMAKERY (PTY) LIMITED Eigth Applicant
PERNOD RICARD SOUTH AFRICA (PTY) LIMITED Ninth Applicant
OMNIA WINES LIMITED Tenth Applicant
DISTELL LIMITED Eleventh Applicant
MOOIUITSIG WYNKELDERS (PTY) LIMITED twelfth applicant
WINECORP (PTY) LIMITED Thirteenth Applicant
EDWARD SNELL & CO LIMITED Fourteenth Applicant BRANDHOUSE BEVERAGES (PTY) LIMITED Fifteenth Applicant
t/a BRANDHOUSE
AND
THE CHAIRPESRON OF THE GAUTENG LIQUOR BOARD First Respondent
THE GAUTENG LIQUOR BOARD Second Respondent
THE MEC FOR FINANCE & ECONOMIC AFFAIRS, Third Respondent GAUTENG
_
THE RESPONDENTS’ ATTORNEY’S ANSWERING AFFIDAVIT
I the undersigned,
NOMFANELO VACU
declare under oath that:
1. I am an admitted attorney practising as such in the employ of the State Attorney, 167 Andries Street, 8th Floor, Old Mutual Building, Pretoria.
2. The facts contained herein are within my personal knowledge unless otherwise stated and are true and correct. At all times relevant hereto I was acting on behalf of the first to third respondents.
3. The Confirmatory Affidavit of Martha Sophia Stander is attached hereto.
THE ORDER OF THE ABOVE HONOURABLE COURT DATED 02 MARCH 2006:
4. On 02 March 2006 the above honourable court made an order, inter alia, that the third respondent’s attorney ( myself) show cause why the court should not order the Third Respondent’s attorney to pay costs de bonis propriis in respect of the wasted costs of the hearing on 02 March 2006.
5. In order to place the above hounarable court’s understanding in context I will briefly deal with the background of the matter.
BACKGROUND:
6. Upon receiving the notice of motion in the Transvaal Provincial Division [TPD], I entered a notice to oppose as instructed by the Respondent’s legal advisor, Advocate Fati Manamela. All communication and / or instructions in respect of this matter were conveyed to the State Attorney’s Office by the said legal advisor.
At the time of signature hereof I have approached the said legal advisor to obtain his confirmatory affidavit and he advised that he is currently unavailable. The confirmatory affidavit will be forwarded upon his return.
7. Subsequent to conveying of the abovesaid instructions numerous communications were forwaded to the Third Respondents’ legal advisor requesting full and proper instructions in preparation of the Respondents’
answering affidavit without success. Consequently the matter was set down and the Respondents’ answering affidavit was still outstanding till the morning of the hearing.
8. On the morning of the hearing I was instructed by the Third Respondent’s legal advisor to advise the Respondents’ Counsel to settle the matter per prayers set out in the notice of motion. The settlement was by agreement between the parties and was made an order of court [TPD].
9. It was part of the abovesaid settlement that the order will be referred to the above honourable court for confirmation of the unconstitutional provisions and further, that the respondents consent to such confirmation. The matter was indeed referred to the above court for the confirmation of the unconstitutionality of the definition of “sheeben”, hence this affidavit.
PROCEEDINGS IN THE CONSTITUTIONAL COURT
10. On the 9th November 2006 I received directions from the above honourable court ,inter alia, seeking the respondents to lodge an argument addressing the unconstitutionality of the definition of “shebeen” liquor legislation. I immediately contacted the Third Respondent’s legal advisor telephonially for instructions and he advised me that they had submitted their proposed amendments regarding the provision at issue and that I should abide by the decision of the above honourable court as delineated by the settlement agreement. I was handling more than one matter for the Third Respondents and I was communicating with the said legal advisor regularly. It became a practice to communicate informally, hence I implemented instructions without the legal advisor’s written confirmation.
11. During the 10th November 2005 I contacted the registrar of the above honourable court , Delani from whom I enquired whether it was necessary to file the Respondents affidavit in the instance where the parties had consented to the settlement order of the TPD. He tranferred me to the senoir registrar Ms Stander who advised me that the settlement agreement may be made an order of court that I should confirm this arrangement in writting. I proceeded to do so and
12. I assumed that the letter had reached the registrar and,that the matter had been settled. I then forwarded copies of all relevant documents received in this matter to the Third Respondent’s legal advisor. During the selfsame time all my files in excess of two hundred were being audited. The audit had to be finalised not later than the second week of December. In expediting the audit process I decided to sort my files according to the order of their urgency. As far as this matter is concerned I filed all correspondence and pleadings received thereon with the sincere belief that they were updates on this matter.
13. During the last week of January 2006 the new legal advisor of the Third Respondent’s Chief Director Kenneth Mapengo visited me at our offices inquiring about all liquor board matters in my possession and I informed the said Chief Director about the progress of matters in my custody at the time including the matter at hand. I updated the Chief Director on all matters and I gave him all original documents received in respect of the current constitutional court matter.
Further I requested him to furnish me with written instructions confirming the previous legal advisor’s instructions to abide. On the 06th February 2006 I received the Third Respondent’s letter confirming instructions to abide. Find a copy attached hereto marked “NV 1”
14. Around 8 February 2006 I received a telephone call from Delano Louw the registrar of the above honourable inquiring about the Third Respondent’s affidavit as directed on the 24th January 2006. I reminded him that the Respondents will
be abiding by the decision of the above honourable court. I inquired whether they were in receipt of my November 2005 letter. Delani highlighted that he did not receive such a letter and requested me to verify with the Senior Registrar of the above Honourable Court. I conveyed our position to Mrs Stander to whom I had to fax a confirmatory letter. I personally faxed through the confirming letter and telephonically confirmed with the registrar that they had received it. A copy is attached hereto marked “NV 2”
15. At that point I was assured that all was well and I continued to file incoming correspondence as an update. Surprisingly late afternoon on the 28th February 2006 when I was on my way home I received a telephone call from Delano Louw the registrar of the above honourable court to establish whether I will be attending court on the 2nd March 2006 I was hesitant to attend Court as I trully believed that it was not necessary as we had consented to the court’s decision.
Further that I had a matter on roll in the Transvaal Provincial Division on the same day. However when Delano Louw informed me that he had been requested by the Judge to enquire whether I would be in court hence I attanded court.
EVENTS OF THE 02 MARCH 2006
15.On the morning of the 2nd March 2006 I proceeded as per my daily routine. I left south of Johannesburg where I reside around 04h30 to catch a taxi to
Johannesburg central and another to Pretoria to arrange with a colleague to stand in for me in the TPD mattter I was busy with. Regrettably when I got to Pretoria I could not find any assistance and I had to advise the relevant client
above honourable court calling upon me to attend court.
16.On my way back to Johannesburg there was heavy traffic on the road rendering in me being 10 to 15 minutes late for court. On my arrival I heard the Judge
President of the above Honourabe Court noting that the court could not adjudicate on the matter due to the Respondent’s failure to file their answering affidavit and heads of argument. This came as a surprise to me as I was assured and believed that upon abiding by the settlement order nothing further was required from the Respondents.
17. I did not prepare the necessary affidavit on the motivation that the registrar had overlooked to explain to me that it was obligatory to file such an affidavit. I add in parenthesis that in my years of practice as an attorney at the State Attorney’s office I have never encountered a situation where I had to file papers upon noting an intention to abide by the settlement agreement.
18. I have just realised that the above honourable court has been inconvenienced in my conduct in handling this application. I convey my sincere apology for my inexperience and oversight in this regard.
19.I never intented to disregard or neglect the above Honourable Court’s directives.
This has been occasioned by my mistaken belief and inexperience that it was not necessary to file an answering affidavit in instance where the Respondents
intended to abide by the above Honourables Court’s decision.
20. On the strength of the aforesaid it is my humble and respectful submission that the above honourable court should not grant an order de bonis propriis against me.
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Nomfanelo Vacu
SIGNED ANDSWORN AT ………ON THIS ……DAY MARCH 2006 IN THE PRESENCE OF THE UNDERSIGNED Commissioner of Oaths, the deponent having acknowledgedthat she knows and understandsthe contents of this affidavit and that she considers the oath and she considers the oath binding on her conscience.
--- COMMISSIONER OF OATHS
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