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ORIGINAL

THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE NUMBER: CCT 320/17 In the application for admission as amici curiae:

GLOBAL INITIATIVE TO END ALL CORPORAL PUNISHMENT OF CHILDREN

DULLAH OMAR RNSTITUTE FOR CONSTITUTIONAL

I ^st Applicant

O LAW, GOVERNANCE AND HUMAN RIGHTS

^{2nd Applicant}

PARENT CENTRE

In the matter between:

3^rd Applicant

FREEDOM OF RELIGION SOUTH AFRICA

Applicant and

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT First Respondent

O MINISTER OF SOCIAL DEVELOPIONT Second Respondent

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent

Fourth Respondent

CHILDREN'S INSTITUTE

Fifth Respondent

QUAKER PEACE CENTRE

Sixth Respondent

SONKE GENDER JUSTICE

Seventh Respondent

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("APPLICANT IN MAIN')

I, the undersigned

O DANIELA ELLERBECK

state under oath as follows:

1.

I am an adult female and admitted attorney currently employed as an inhouse legal advisor of Freedom of Religion South Africa (FOR SA), which is the applicant in the application for standing and leave to appeal ("the main application") set down for hearing before the above Honourable Court on 29

November 2018. o

2.

I am duly authorised by FOR SA to depose to this affidavit on its behalf.

3.

Save where appears from the context, the facts contained in this affidavit are within my own personal knowledge and are, to the best of my knowledge and belief, both true and correct.

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4.

I have read the 1 ^st to 3^rd applicants' application for admission as amici curiae in the main application, and oppose the application on the grounds set out below.

5.

A failure to answer to each and every allegation in the 1 ^st to 3^rd applicants' founding affidavit, should not be read as an admission of same. o

6.

At the outset I wish to state that the applicants' submissions are vague, prolix, and often repetitive of submissions already made by the respondents.

AD PARAGRAPHS 48 - 50 OF THE FOUNDING AFFIDAVIT:

F to APPLICANTS' COMPLIANCE WITH RULE 10

7.

The letter by the amici applicants' attorneys (i.e. the Legal Resources Centre ("IRC")) seeking consent for their admission as amici curiae ("JW2" to the Founding Affidavit) was e-mailed to FOR SA's correspondent attorneys (i.e Swanepoel Attorneys) on 24 October 2018. In terms of the LRC's letter, the deadline for response was 26 October 2018.

8.

In terms of an e-mail addressed by the LRC to FOR SA's instructing attorneys (i.e. Maphalla Mokate Conradie Inc) at 04:06PM on Friday, 26

October 2018 (i.e. the "deadline date"), again attaching the aforementioned letter, the following was stated: "the letter was sent to your correspondent

and we have made several attempts to determine whether it was received but were unable to do so." A copy of the LRC's e-mail is annexed hereto, marked 'DEI".

9.

The e-mail ("DEI") does not mention however whether any attempts were

o

made to contact the correspondent attorney by telephone to confirm receipt of the letter. Nor does it explain why, given the IRC's uncertainty as to receipt of the letter by our correspondent attorneys and given also the imminent deadline for response, the letter was not e-mailed directly to Maphalla Mokate Conradie Inc whose own contact details appear on the papers filed of record at an earlier stage. Indeed, we submit that this would have been common practice.

o

10.

In the circumstances of the e-mail only having been sent to Maphalla Mokate Conradie at 04:06PM on Friday, 26 October 2018 (i.e. the deadline date), the IRC's letter and application for admission as amici curiae only came to our attention after the deadline date when it was forwarded to us by

Maphalla Mokate Conradie.

11.

In the circumstances further, FOR SA was only able to consult with its legal representatives with regard to the application on Wednesday morning, 31

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October 2018 whereafter this opposing affidavit was prepared under severe time constraints overnight in order to file it urgently as soon as the applicants filed their application, so as to avoid any delay in the matter.

o

AD PARAGRAPHS 51-54 OF THE FOUNDING AFFIDAVIT:

REQUEST FOR CONDONATION

12.

On the applicants' own version, in terms of the Rules, their application should have been filed by Friday, 26 October 2018. We understand that the application was filed on Wednesday, 31 October 2018 at 12:03PM.

13.

I respectfully submit that although the founding affidavit sets out certain

O events between the period 13 September 2018 to 17 October 2018, the applicants have failed to adequately explain why they were not able to prepare the application in the days that followed the consultation on 17 October 2018 and before the deadline of 26 October 2018. Nor have they explained the delay from 26 October 2018 until 31 October 2018 when the application was eventually filed with the Court. For this reason alone, I submit, their application for condonation should be dismissed.

14. The application was sent to FOR SA's attorneys (Maphalla Mokate Conradie Inc) via e-mail at 11:18AM on Tuesday, 30 October 2018, placing FOR SA under severe time to consider the application, consult with our legal representatives and prepare opposing papers overnight.

o 15. In all the circumstances, I respectfully submit that the applicants' application for condonation should be dismissed. The applicants have not put up an adequate explanation for the delay in bringing the application. Nor have they made out the requisite case in their application for admission as amici curiae, as I show below.

16. I submit that, should the applicants' application for condonation be granted, FOR SA and the matter will suffer prejudice including the potential

O postponement of the hearing date.

GROUNDS OF OPPOSITION

17.

First, the founding affidavit fails to explain why it is necessary for all three applicants to be admitted as amici, and in particular who will be making what submissions.

18.

In terms of Rule 10, it is incumbent on an' (and, I submit, by implication, incumbent on each) applicant for admission as amicus curiae to identify the position to be adopted by that amicus, the submissions it will advance and their relevance to the proceedings, and the amicus's reasons for believing that the submissions will be useful to the Court and different from those of o the other parties (and, by implication, other amici).

19.

Because the three applicants' submissions have been rolled up together in the founding affidavit (see paragraphs 23 — 47 thereof, I submit that, it is impossible for FOR SA and the Court to know, and distinguish, the particular position that each of the applicants is adopting, the submissions each will be advancing and how same are different to the submissions of the other two applicants for admission, let alone the other parties to the o proceedings. As a result, we submit, it is impossible for FOR SA and the Court to determine which of the applicants' submissions will truly be relevant and useful to the Court, rather than a mere duplication of what is already on record.

20.

Second, I submit there is no case made out for why the 1 ^st applicant, as a non-national charity organisation, should be admitted as amicus curiae. To

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the best of my knowledge, there is no precedent for such and no case whatsoever has in any event been made out for such.

21.

Third, the submissions to be advanced by the applicants raise nothing substantially new that will be useful to the Court and/or serve to address the

real legal issues and ultimate question before the Court. Instead, they only serve to repeat arguments already made by the respondents in the main application. At best this is the respondents' case already put up in opposition.

22.

Fourth, and in so far as the applicants seek to introduce evidence in terms of Rule 31, we submit that the above Honourable Court has already, in the case of In re: Certain Amicus Curiae Applications: Minister of Health v

Treatment Action

^l

, held that:

o

"ordinarily it is inappropriate for an amicus to try to introduce new contentions based on fresh evidence. "

23. The evidence that the applicants purportedly seek to introduce, is not or capable of easy verification. We submit that FOR SA will

1 2002 (5) SA 713 (CC) para 5. see also Fose v Minister of safety and Security 1997 (3) SA 786 (CC) para 9 and Uniform Rule 16A.

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have to counter it with opposing views, including its own expert evidence, to show this, and this will precipitate the need for a proper opportunity to do so, which has been impossible to do by the serving and filing hereof.

24. In the circumstances, there is a real risk that the hearing of the application could be postponed, resulting in prejudice for FOR SA and the matter.

O

WHEREFOR FOR SA prays that the applicants' application for admission as amici

curiae be refused.

DANIELA ELLERBECK

I hereby certify that the Deponent knows and understands the contents of this Affidavit and that it is to the best of her knowledge true and correct. This Affidavit

O was signed and sworn to me on this the 1 ^st day of

2018, and that the Regulations contained in Government Notice R. 1258 of 21 July 1972, as amended, have been complied with.

Commissioner of Oaths

Marriage Officer BD 30031

Cell: 083 305 5441 Cape Town

South Africa