IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case Number: CCT 42/09 In the matter between:
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Applicant
and
MQABUKENI CHONCO AND 383 OTHERS Respondents
NOTICE OF OBJECTION
KINDLY TAKE NOTICE that the above-named Applicant objects to the
intention of the Respondents herein to amend their Notice of Motion dated 28 May 2007 by renumbering Prayer 3 to be Prayer 4 and Prayers 4 and 5 to be Prayers 6 and 7 and by introducing a new Prayer 3 and 5 as set out in its Notice of Amendment, which read as follows:
“3. IN THE ALTERNATIVE TO PRAYERS 1 AND 2:
That it be declared that the Second Respondent failed to exercise, with due diligence and without delay, the constitutional obligation conferred on him in terms of section 84(2)(j) of the Constitution, with
regard to the applications for presidential pardon by the Applicant and the 383 other applicants for presidential pardon in whose interest and on whose behalf the Applicant brings this Application.”
“5. IN THE ALTERNATIVE TO PRAYER 4
That Second Respondent be ordered to do all the necessary within a period of three calendar months from the date of this order to exercise the powers conferred on him in terms of section 84(2)(j) of the Constitution with regard to all 384 applications for presidential pardon referred to in this Application.”
The grounds for the aforesaid objection are that:
1. The course of action adopted by the Respondents herein is irregular and highly prejudicial to the Applicant and to the President, against whom relief is sought, in that:
1.1 this amendment introduces a completely new cause of action that was not foreshadowed or covered in any of the previous hearings of this matter, and which amendment has the effect of creating a platform from which the Respondents are attempting to determine a matter that was not within the contemplation of the judgment delivered or order granted by Seriti J in the High Court, or canvassed as a basis for
1.2 the crisp issue raised in this appeal addresses the question whether or not there is, on the part of the Applicant, a constitutional obligation, located in section 85(2)(e) of the Constitution, relating to the process of granting presidential pardons in terms of section 84(2)(j) of the Constitution, this having been the crux of the judgment of the Supreme Court of Appeal;
1.3 it would be unfair and contrary to the interests of justice for this Court to decide the issue whether the President failed to exercise, with due diligence and without delay, the constitutional obligation conferred on him as encapsulated in the amendment, on the basis of the representations made to date with regard to the Applicant’s role in this matter;
1.4 the Applicants have adopted a wrong procedure. The correct procedure is to apply to this Court in terms of Rule 18 of the Rules of this Court for direct access in the interests of justice, setting out why it is imperative that the issue of the President’s alleged failure to fulfil a constitutional obligation ought to be determined at the same time as the issues raised in this appeal against the judgment and order of Farlam JA, coupled with an application for the consolidation of the applications.
2. What the Respondents are attempting to effect is a substitution of the Applicant by the President in circumstances where such substitution is not permitted; as the pertinent legal and factual issues that form the subject matter of this appeal do not address the alleged failure by the President to fulfil a constitutional obligation. In any event, this substitution is contrary to Rule 7 of the Rules of this Court, which provides for the substitution of a party by reason of the death or incompetence of a party.
3. The President is not a party in the appeal to this Court, having abided the decision of the High Court as illustrated by the fact that the President was not cited as the Second Appellant in the appeal to the Supreme Court of Appeal. He has made representations to this Court on the basis of the invitation expressed in the directions of this Court having taken advice on the matter. Citing him as a party by way of an amendment is unwarranted and irregular.
4. The intention to amend is designed to circumvent a difficulty of the Respondent’s own creation in not seeking relief against the President at the launch of this application in the High Court in circumstances where the Respondents have always had the benefit of legal advice, as amply demonstrated by the representations of
Director of the firm J H Van Der Merwe Incorporated and whose confirmatory affidavits have been an integral part of the case made out by the Respondents.
5. The Notice of Amendment is intended to secure substantive relief for the Respondents, yet it does not comply with the form and manner in which applications for substantive relief should be brought. It is within the contemplation of Rule 11 of the Rules of this Court that the facts upon which a party relies for the relief claimed ought to form part of the documentation filed in support thereof. The Respondents seek substantive relief against the President but have failed to comply with the provisions of Rule 11.
This is prejudicial to the President in that he is not being afforded the opportunity to answer to the Respondents’ charges.
DATED AT ... THIS ... DAY OF AUGUST 2009.
______________________________
S Botes
Applicant’s Attorney The State Attorney Bothongo Heights
8th Floor, 167 Andries Street PRETORIA
Ref: 2688/2007/Z60
C/O The State Attorney North State Building
10th Floor, 95 Market Street Cnr Kruis Street
JOHANNESBURG Ref: V Dhulam
Tel: (011) 330 7600
Fax: (011) 330 6200
AND TO:
THE REGISTRAR OF THE CONSTITUTIONAL COURT JOHANNESBURG
AND TO:
J H Van Der Merwe Inc Respondent’s Attorney’s 870 Rubenstein Street Moreleta Park
PRETORIA
Docex 1, Menlyn Tel: (012) 998 5054 Fax: (012) 998 6093 Ref: Jaco Grobler
C/O Thomson Wilks Inc 23 Impala Road
Chislehurston
Tel: (011) 784 8984 Fax: (011) 883 8660
Ref: J Small/sh/J9 Received a copy hereof
this .... day of July 2009
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