PHUMLA RUTH PATRICIA NGEWU First Applican

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No: CCT117/11 In the matter between:

PHUMLA RUTH PATRICIA NGEWU First Applicant WOMEN’S LEGAL CENTRE TRUST Second Applicant and

POST OFFICE RETIREMENT FUND First Respondent MINISTER OF COMMUNICATIONS Second Respondent

MINISTER OF FINANCE Third Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT Fourth Respondent

MAWETHU NGEWU Fifth Respondent

In re:

MATHILDA LOUISA WIESE Applicant

and

GOVERNMENT EMPLOYEES PENSION FUND First Respondent

MINISTER OF FINANCE Second Respondent

THE PENSION FUNDS ADJUDICATOR Third Respondent CORNELIUS JOHANNES MARX Fourth Respondent

FIRST RESPONDENT’S SUPPLEMENTARY AFFIDAVIT

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I, the undersigned, DAVID JOHN GERAL, make oath and state as follows:

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1. I am an adult male attorney and a director of Bowman Gilfillan Inc., the attorneys of record of the First Respondent. I am resident at 39 Crescent Drive, Westcliff, Johannesburg, Gauteng.

2. I am authorised to depose to this affidavit on behalf of the First Respondent.

3. The contents of this affidavit are within my personal knowledge except where stated otherwise and are true and correct to the best of my knowledge.

4. On 1 July 2011 the Western Cape High Court at Cape Town (“the High Court”) handed down a declaration of partial constitutional invalidity of the Government Employees Pension Law, Proclamation 21 of 1996 (“the Proclamation”). A copy of the judgement of the High Court already forms part of the record in this matter.

5. On 20 July 2011 the Applicant, having sought leave from the Constitutional Court to appeal to the Constitutional Court against a particular aspect of the High Court’s judgment, was granted such leave, and that appeal is therefore currently before this court.

6. On 21 November the Chief Justice issued directions in this matter, a copy of which is attached and marked “A”, which included the following:

6.1 This matter, being the question of confirmation of the High Court’s declaration of partial invalidity of the Proclamation as well as the Applicant’s appeal in relation to an aspect of that judgment, is set down for hearing on 28 February 2012 (paragraph 1);

6.2 The record must be lodged by 14 December 2011 (paragraph 3);

6.3 The appellant’s heads of argument must be lodged by 16 January 2012 (paragraph 5(a)); and

6.4 The respondents’ heads of argument must be lodged by 30 January 2012 (paragraph 5(b)).

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7. On 17 November 2011 the Parliament of the Republic issued its Announcements, Tablings and Committee Reports No. 155-2011, an extract (2 pages) of which is attached and marked “B”. In that report Parliament announced that both houses of Parliament – the National Assembly and the National Council of Provinces – had passed the Government Employees Pension Law Amendment Bill [B15-2011] (“the bill”) and noted that the bill was to be submitted to the President of the Republic for assent.

8. A copy of the bill including the memorandum on the objects of the bill (at pages 7 to 9) is attached, marked “C”. I submit that it is clear that the bill was intended to remedy the constitutional invalidity referred to in the judgement of the High Court from which the appeal in this matter arises.

9. The bill has since received the President’s assent and accordingly the Government Employees Pension Law Amendment Act, no. 19 of 2011 (“the Act”) was promulgated today by way of its publication in Notice 1060 in Government Gazette no. 34864 of 14 December 2011. A copy of a notice from the Presidency to the effect is attached, marked “D”. I submit that the Act serves to remedy the constitutional invalidity referred to in the judgement of the High Court from which the appeal in this matter arises.

10. The First Respondent is loath to incur the costs of causing its legal team to consider the record (due to be filed today) and to prepare heads of argument by 30 January 2012 in relation to a matter which has become academic. In this regard it must be noted that the High Court awarded no costs against the First Respondent in relation to the proceedings before it. I am also informed by the attorney of record for the Applicant, that his client has no interest in prosecuting her appeal in this matter in the circumstances.

11. In the circumstances, this supplementary affidavit serves –

11.1 to draw to the Constitutional Court’s attention that the questions that are to be considered by the court on 28 February 2012 in this matter are likely to be

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academic in light of the promulgation of the Act; and

11.2 to support a request for further or revised directions from the Chief Justice in light of this information.

DAVID JOHN GERAL

I certify that the deponent appeared before me at _____________ on ____ December 2011, and attested that he understood and confirmed the contents of this affidavit, had no

objection to taking this oath and considered his oath to be binding on his conscience.

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