IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 100/09 NGHC CASE NO: 11678/2006 In the matter between:
STEPHEN SEGOPOTSO TONGOANE First Applicant PHAHLELA JOAS MOGAKULA Second Applicant
MORGAN MOGOELELWA Third Applicant
RECKSON NTIMANE Fourth Applicant
and
THE NATIONAL MINISTER FOR
AGRICULTURE AND LAND AFFAIRS First Respondent THE NATIONAL MINISTER FOR PROVINCIAL Second Respondent AND LOCAL GOVERNMENT
THE PREMIER OF EASTERN CAPE Third Respondent THE PREMIER OF FREE STATE Fourth Respondent THE PREMIER OF GAUTENG Fifth Respondent THE PREMIER OF KWA-ZULU NATAL Sixth Respondent THE PREMIER OF MPUMALANGA Seventh Respondent THE PREMIER OF NORTHERN CAPE Eighth Respondent THE PREMIER OF LIMPOPO Ninth Respondent THE PREMIER OF NORTH WEST Tenth Respondent THE PREMIER OF WESTERN CAPE Eleventh Respondent THE SPEAKER OF THE NATIONAL ASSEMBLY Twelfth Respondent THE CHAIRPERSON OF THE NATIONAL
COUNCIL OF PROVINCES Thirteenth Respondent THE NATIONAL HOUSE OF TRADITIONAL
LEADERS Fourteenth Respondent
FOUNDING AFFIDAVIT
YOUR EXCELLENCIES, I, the undersigned,
MOGOROSI DANIEL MOLUSI hereby make oath and say that:
1.
1.1 I am the attorney of record for the First, Second and Fourteenth Respondents herein.
1.2 I have been acting for the aforesaid respondents in the North Gauteng High Court and have retained this status up to and in the present proceedings in the Above Honourable Court.
1.3 By virtue of the aforegoing , process and correspondence delivered at the office of the State Attorney, Pretoria, is directed to me for my attention in the pursuit of the above matter.
1.4 Accordingly, I am competent to depose to this affidavit, the contents of which save where the contrary indicates are within my mind and are to the best of my knowledge and belief, both true and correct.
1.4.1 To the extent that I may depose to factual and legal allegations herein, I am doing so on the basis of my personal factual and legal background knowledge of the facts of the matter as well as the governing statutes involved therein.
1.4.2 Further, besides my personal background knowledge as stated above, I am deposing to the aforesaid factual position as well as legal allegations, placing reliance on the advice of counsel acting for the Second and Fourteen respondents.
2.
BACKGROUND AND NATURE
2.1 This affidavit is about the SECOND and FOURTEENTH RESPONDENTS’
Heads of arguments in Hard Copy as well as in a Disk thereof.
2.2 According to the Court’s DIRECTIONS DATED 24TH NOVEMBER 2009, the Heads of Argument both in Hard Copy as well as in a Disk from were to be lodged with the Registrar of this Honourable Court on or before Friday 29th JANUARY 2010.
2.3 The said Heads of Argument in hard copy form together with the Disk thereof could not be served on all of the affected firms of attorneys, but only one of these. Accordingly these could not be lodged on Friday, 29th JANUARY 2010.
The reasons for this non- compliance are given below, under merits part of this affidavit, for which I, on behalf of the Second and Fourteenth Respondents , ask your Honourable Excellencies for an indulgence, and accordingly, condonation for the late lodging of the heads of argument and disk thereof.
3.
MERITS
3.1 My legal team comprised the following:
Adv Seth Nthai SC Adv Mapule Baloyi and
Dr. Samuelson Khunou (Expert Witness)
The above team worked on their own each to acclimatise himself/herself with the applicants’ papers preparatory to hold a consultation as a legal team before consulting with the client. The team according and eventually consulted together.
3.2 On 19th January 2010 the team got together and consulted with the Second Respondent and advised the consultant of the applicants’ Heads of Argument as touching on Section 21 CLARA of this Section impacts on the TRADITIONAL COUNSELS. The Traditional Counsel falls to be decided in the case for the Second and Fourteen Respondents.
3.3 I submit that given the impact which the applicants’ allegation in their Heads of Argument at paragraphs 25: 75 : 422: to mention but only these out of several paragraphs on and around Section 21 of CLARA have against the Second and the Fourteenth respondents, the latter respondents became obliged on the merits of the aforesaid heads to:
(a) defend the issue of Traditional Counsels more so, as the judgement of the North Gauteng High Court on 30th October 2009 is in favour of the 2nd and the 14th respondents.
Further and more in particular __
(b) the applicants, it is submitted, have their minds bent on rising and falling with their view that the Traditional Counsel’s duties are constitutionally invalid.
3.4 The raising of Section 21 of CLARA necessitated my Senior Counsel to inquire as to the stance which the First Respondent has regarding the above matter. The First Respondent had as at that stage remained undecided as to whether or not to enter the fray.
3.4.1 This state of indecision somewhat stalled my legal teams preparations
of the Second and Fourteenth Respondents’ Heads of Argument.
4.
4.1 The aforesaid stall of the preparation was also exacerbated by the fact that the applicants’ attorneys had previously indicated in a letter dated 7th January 2010 addressed to the State Attorney. In the said letter paragraph 4.3 thereof refers to the narrowing down of issues while paragraph 5 proposes a settlement of the matter on the basis of the applicants withdrawing their application for leave to appeal in so far as the TLGFA is concerned. Copy of the aforesaid latter is attached hereto marked Annexure “M D M1”
4.2 advice on the aforesaid withdrawal proposition was that the matter is before the Constitutional Court on a referral by the North Gauteng High Court to have its judgement of 30th October 2009 confirmed and on that basis, the Above Honourable Court’s directive of the 24th November 2009 was that the parties should, with particular reference to the for Second and Fourteenth Respondents, file:-
“Written argument………”
“…on or before Friday 29th January 2010.
5.
5.1 On the basis of the aforesaid, my legal team on the advice of the leader, asked for a meeting with the Minister for the Department of Rural Development and Land Reform (previously Department of Agriculture and Land Affairs). The meeting was scheduled for 27th January 2010 since an earlier date could not be obtained.
5.2 On 27th January 2010 my Senior Counsel i.e. , ADVOCATE SETH NTHAI SC could not avail himself for the meeting even though the meeting was at his special request and instance. However ADVOCATE M MOKADIKOA, the junior counsel for the First Respondent availed herself. The meeting could not take off as the minister insisted on the attendance of a Senior Counsel.
5.3 On 27th January 2010, “unfortunate events” befell my legal team, making ADVOCATE S NTHAI SC no longer to be available as a leader for my legal team.
5.4 I immediately after the meeting at Land Affairs offices advised Advocate M Baloyi to finalise the Heads of Argument for Second and Fourteenth Respondent. This exercise took time until just shortly before lunch hour on Friday 29th January 2010.
6.
SERVICE AND TRAFFIC PROBLEMS: 29TH JANUARY 2010
6.1 With the assistance of my Candidate Attorneys I had the necessary photocopies made and personally, accompanied by one of the Candidates Attorney MR HUGH DLAMINI, I drove from office at 13H45 to MESSRS WEBBER WENTZEL BOWENS, attorneys for the 2nd Applicant where I served the documents.
6.2 Traffic was quite heavy from Midrand to Johannesburg. I only arrived and served at MESSRS WEBBER WENTZEL BOWENS at 15H25.
6.3 While enroute to MESSRS WEBBER WENTZEL BOWENS I advised Mr Hugh Dlamini (candidate) to telephonically communicate with the CONSTITUTIONAL COURT’S Registrar’s office and ask that somebody at that in my presence and hearing range should wait for me for purposes of lodging the papers. Mr Dlamini did telephone and was advised that if I would not be able to lodge the papers before 15H00 I should do so on Monday 1st February 2010 and file also, an affidavit, for which this is one. Due to heavy traffic while en - route to serve on the Legal Resources Centre situated in Johannesburg, I negotiated a turn to return back to Pretoria so that I serve on the latter office on Monday 1st February 2010 and accordingly lodge the papers with the Constitutional Court on the same day.
7.
7.1 After serving at MESSRS WENTZEC BOWENS, traffic had become all the more heavy that place, i.e. ILLOVO to Johannesburg. It become apparentity clear that service at LEGAL RESOURCES CENTRE was not going to be possible as the office hours would come to a close before O reached the LRC.
7.2 I then, on the advice of the Constitutional Court officer, negotiated a turn to return to Pretoria so that I serve on the latter office on Monday 1st February 2010 and accordingly lodge the papers with the Constitutional Court on the same day.
8.
8.1 With regard to the indication of the Minister of Agriculture and Land Affairs, it was decided on 27th January 2010 to prepare a memorandum which the minister would have before close of business hours on Monday 1st February 2010, preparatory for a meeting with the Minister on Thursday 4th February 2010 at 14H00.
8.2 It is at the aforesaid meeting whereat my legal team for the First Respondent, namely:-
Advocate H Havenga SC and Advocate M Mokadikoa,
accompanied by myself would attend a meeting where counsel would advise the minister accordingly. Given this advice, the minister would then exercise his independent thinking, having evaluated counsel’s advice, to decide whether or not enter the fray.
8.3 However my instructions, I being the guardian of the government departments’ legal advisor as well as legal representative, would be that the minister should make written representations for the Above Honourable to evaluate and decide on.
9.
On the basis of the aforegoing, I humbly pray that it may please Your Excellencies to condone the late lodging of the Second and Fourteenth Respondents’ Heads of Argument and Disk.
--- DEPONENT
I certify that the deponent has acknowledged that he knows and understands the contents of this affidavit, that he has no objection to the taking of the prescribed oath and that he considers this oath to be binding on his conscience.
SIGNED and SWORN to before me at _____________on this ____ day of __________ 2010
__________________________
