IN THE SUPREME COURT OF APPEAL CASE NO.
In the petition between :
BEINASH, JOSEPH LEON
MECKLENBERG [PTY] LIMITED J B & L NOMINEES CC
1st Petitioner 2nd Petitioner 3rd Petitioner
In the matter between :
ERNST & YOUNG
WIXLEY, THOMAS ALEXANDER
REYNOLDS, PHILIP WARDEL MOORREES
1st Applicant / Respondent 2nd Applicant / Respondent 3rd Applicant / Respondent
and
BEINASH, JOSEPH LEON
MECKLENBERG [PTY] LIMITED J B & L NOMINEES CC
1st Respondent / Appellant 2nd Respondent / Appellant 3rd Respondent / Appellant
REPLYING AFFIDAVIT
the undersigned
JOSEPH LEON BEINASH do hereby make oath and say that :
1. I am an adult male chartered accountant and auditor practising as such at 2nd Floor, Factor House, 12 Kruis Street, Johannesburg.
2. The facts to which I depose are, save where otherwise stated or indicated by the context, within my own personal knowledge and are true and correct.
3. I am the first petitioner and deposed to the affidavit confirming the correctness I of the contents of the petition in this matter. I have been advised that the rule;
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of this Honourable Court do not provide for the filing of replying affidavits.
However, the answering affidavit of the Respondents raises certain discreet issues which relate to matters included in the petition in error and which therefore call for a reply from the petitioners. In these circumstances I humbly ask that this Honourable Court admit this replying affidavit notwithstanding the absence of provision therefor in the rules.
AD PARAGRAPHS 3 AND 15.1 OF THE ANSWERING AFFIDAVIT
4. The allegations contained within paragraphs 3.1 - 3.3 of the answering affidavit and in the first two sentences of paragraph 3.4 are correct. I accept that Mecklenburg [Pty] Limited is not a party to this petition.
5. The incorrect allegations in the petition relating to Mecklenburg [Pty] Limited, my relationship to it, and its rule in this petition were the product of an error on the part of my attorney, Mr. Joel Melamed [who only became involved in this matter at a very late stage], who drafted the formal aspects of the petition on the basis of a precedent in this matter which was drawn at a time when I was the sole shareholder of Mecklenburg [Pty] Limited. Neither Mr. Melamed nor I noticed these errors in the petition until we read the answering affidavit of the Respondents. I refer in this regard to the confirmatory affidavit of Mr. Melamed which is attached marked "RA-1".
6. Neither I nor Mr. Melamed intended to mislead this Honourable Court by the inclusion of the relevant allegations in the petition. We both apologise unreservedly for the erroneous inclusion of these allegations.
AD PARAGRAPH 6 OF THE ANSWERING AFFIDAVIT
7. In this paragraph the Respondents draw attention to paragraph 6 of the notice of application for leave to appeal and place great emphasis on my alleged reliance on the right "to have despicable disputes determined by a court of law."
8. I make no claim to any such right as, I submit, is dear from paragraph 27 of the petition in which I expressly state that vexatious proceedings are not covered by the scope of section 34 of the Constitution.
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9. The words in paragraph 6 of the notice of application for leave to appeal, on which the Respondents seize, are the product of an obvious, if embarrassing, typing or dictation error in the offices of my previous attorneys, Soller and Manning. The paragraph should have referred to the "right to have justiciable disputes determined by a court of law" which is how section 22 of the Interim Constitution, the predecessor of section 34, was worded. This, I submit, is manifestly clear from the context of paragraph 6 of the notice of application for leave to appeal.
10. To the extent that this Honourable Court may have been misled by the error in paragraph 6 of the notice of application for leave to appeal I again apologise unreservedly.
DEPONENT
I HEREBY CERTIFY THAT THE DEPONENT SIGNED THE ABOVE AFFIDAVIT IN MY PRESENCE AT JOHANNESBURG ON 5 ^ T ) A P R I L 1998 AND ACKNOWLEDGES THAT HE KNOWS AND UNDERSTANDS THE CONTENTS THEREOF; THAT HE INFORMED ME THAT HE HAS NO OBJECTION TO TAKING THE PRESCRIBED OATH AND CONSIDERS IT TO BE BINDING ON HIS CONSCIENCE AND THE PROVISIONS OF THE REGULATIONS CONTAINED IN GOVERNMENT GAZETTE NOTICE NO. R.1258 OF 21 JULY 1972, AS AMENDED BY GOVERNMENT NOTICE NO. R.1648 OF 19 AUGUST 1977 AND AS FURTHER AMENDED BY GOVERNMENT NOTICE NO. R.1428 OF 11 JULY 1980 AND AS FURTHER AMENDED BY GOVERNMENT NOTICE NO. R.774 OF 20 APRIL 1982 HAVE BEEN COMPLIED WITH.
allude
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