IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC Case number: CCT 285/17
In the matter between:
SITHEMBILE VALENCIA MKHIZE N.O. Applicant
and
PREMIER OF THE PROVINCE
OF KWAZULU-NATAL First Respondent MKHANYISENI MBUYAZI Second Respondent UMDENI WENKOSI Third Respondent
MEC OF THE DEPARTMENT OF CO-OPERATIVE
GOVERNANCE AND
TRADITIONAL AFFAIRS Fourth Respondent
FOUNDING AFFIDAVIT IN APPLICANT'S APPLICATION FOR CONDONATION: LATE FILING OF WRITTEN SUBMISSIONS
I, the undersigned
SITHEMBILE VALENCIA MKHIZE
do hereby make oath and say:
1.
Save as is indicated otherwise the facts deposed to are within my personal knowledge and are true and correct. The submissions of law are made on the advice of my legal representatives.
2.
I am the applicant, in my capacity as executrix of the estate of the Late Zwelibhekile Sibusiso Mbuyazi, in the deceased’s monetary claim in the application brought originally in the Pietermaritzburg High Court under case number 2367/2010. I also claim an interest in these proceedings in my capacity as mother and natural guardian of my minor son Phatokuhle.
3.
The citation and details of the parties are set out in the application for leave to appeal to this Court.
4.
This is an application for condonation of the late filing of the Applicant’s written submissions with this Court.
5.
In terms of the Chief Justice's directive I was directed to file my written submissions on or before Friday, 20 April 2018. Those representing me did not do so.
6.
I respectfully apologise to this Court and to the respondents for the late filing of my written submissions. The reasons for this lateness are the following.
7.
On or around 19 October 2017, the application for leave to appeal to this Court was made. At that time the counsel on brief was advocate G D Goddard SC. He was counsel in this matter since its inception in 2010.
8.
On or around December 2017, advocate Goddard SC had an accident on his bicycle which left him almost paralysed. Advocate Goddard SC had to undergo full-time physical rehabilitation during that period and that rehabilitation continued in earnest in January 2018 and continues to this day.
9.
Once the Chief Justice issued a directive on 31 January 2018, my legal representatives, attorneys Schreiber Smith Attorneys, were instructed to find replacement counsel to take this matter forward for me given that Goddard SC was no longer capable of doing so given his physical condition.
10.
Alternative senior and junior counsel were briefed in this matter to draft written submissions and appear at the hearing on 2 August 2013. It took a while to secure such counsel because I am effectively indigent without my husband and needed counsel to act on a contingency basis. Based on the directive of the Chief Justice,
the record was sent to both my legal counsel around 5 April 2018.
Both senior counsel, advocate A A Gabriel SC and junior counsel, advocate M Z F Suleman, did their best to familiarise themselves with the record within this time.
11.
However, due to the volume of the record and the complexity of the various interlocutory applications that are interwoven in this application for leave to appeal, my senior counsel had difficulty in giving this matter her full time attention because she had already committed to represent the presidency in an ongoing matter which was culminating at the end of April 2018 before a Full Bench of the Cape High Court. This meant that her time was taken up by preparation, exacerbated by the fact that more than one interlocutory applications had been brought despite the passage of almost three years that it had taken to finally reach the last, week- long hearing of that matter. That matter involved the vexed issue of whether government ought to pass a law recognising Muslim Marriages as religious marriages.
12.
As a result, my senior counsel tried but could not meet the deadlines set out in the Chief Justice’s directive and the matter was too complex for my junior counsel to handle on his own. My senior counsel then requested my attorney to immediately contact the respondents to seek an indulgence for the late filing of my written submissions.
13.
I bring to this Court’s attention to the fact that I sought consent from the Respondents to approach this Court to extend the deadline imposed by the Chief Justice and to enable me to seek a further two weeks within which to deliver my written submissions. I attach a letter sent to the First and Fourth Respondents’ attorneys and Second and Third Respondents’ attorneys and mark it “A”. This letter was sent on by my attorneys of record on 13 April 2018.
14.
The legal representatives of the First and Fourth Respondents responded on 13 April 2018 consenting to me approaching his Court
for an extension and on 16 April 2018 the legal representatives of the Second and Third Respondents consented to such extension. I attach hereto correspondence from the First and Fourth Respondents marked “B” and Second and Third Respondents marked “C”. In summary, none of the respondents objected to the late filing of my written submissions, provided they too were given an extension within which to file their written submissions. In other words, the respondents agreed that they would not be prejudiced by this late filing.
15.
On 16 April 2018 these letters were then sent to the Registrar of this Court to request an indulgence of further time within which to file my written submissions. The views of the respondents to the extension were made known to the Registrar.
16.
My legal representatives received an email on 20 April 2018 indicating that the Registrar of this Court required me to bring an
application for condonation for the late filing of my written submissions.
17.
I attach a confirmatory affidavit to this effect marked “D”.
18.
As indicated in my written submissions and on the advice of my legal representatives, I am advised that this matter has reasonable prospects of success and it would be in the interest of justice to condone the late submission of my written submissions. I will ensure that my written submissions are delivered as soon as reasonably possible. To this end, counsel have worked over the long weekend to ensure that my written submissions can be finalised and submitted as early as possible after the public holiday on 2 May 2018.
19.
I thus seek an order in terms of the Notice of Motion in this application for condonation. It is apparent that the late filing of my
written submissions has not prejudiced any of the respondents. I express my sincere regret and apology to this Court for the late filing of my written submissions.
__________________________
DEPONENT
I certify that the deponent has acknowledged that she knows and understands the contents of this affidavit duly signed and sworn to
before me at on this day of , the regulations contained in Government Gazette No.
R1258 dated 21 July 1972, as amended, having been complied with.
_________________________
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