CASE NUMBER: CCT 278/2019 CCT 279/19
In the matter between:
AMABHUNGANE CENTRE FOR
INVESTIGATIVE JOURNALISM NPC
First Applicant
SOLE, STEPHEN PATRICK Second Applicant and
MINISTER OF JUSTICE AND CORRECTIONAL SERVICES
First Respondent
MINISTER OF STATE SECURITY Second Respondent MINISTER OF COMMUNICATIONS Third Respondent MINISTER OF DEFENCE AND MILITARY
VETERANS
Fourth Respondent
MINISTER OF POLICE Fifth Respondent THE OFFICE OF THE INSPECTOR-GENERAL
OF INTELLIGENCE
Sixth Respondent
THE OFFICE FOR INTERCEPTIONS CENTRES Seventh Respondent THE NATIONAL COMMUNICATIONS CENTRE Eighth Respondent THE JOINT STANDING COMMITTEE ON
INTELLIGENCE
Ninth Respondent
THE STATE SECURITY AGENCY Tenth Respondent
SUPPORTING AFFIDAVIT
I, the undersigned
ELEANOR DELAINE GROENEWALD
do hereby state under oath as follows:
DEPONENT
1. I am an adult female in the employment of the Fifth Respondent (“the Minister of Police”) employed as at the Head of Litigation and
Administration in the Division: Legal & Policy Services with its offices at Damelin Building, 255 Paul Kruger Street, Pretoria.
2. I am duly authorised to depose to this affidavit on behalf of the Minister.
3. The facts deposed to herein, save where the contrary appears from the context, fall within my personal knowledge and are to the best of my knowledge and belief, both true and correct.
PURPOSE OF APPLICATION
4. I file this affidavit in support of the Minister’s application for condonation for the late filing of heads of argument in accordance with the directive of the Honourable Court dated 6 November 2019 (“the directive”).
5. I confirm that on 16 September 2019, his Lordship Sutherland J handed down judgment in the matter Amabhungane Centre For Investigative Journalism NPC and Another v The Minister of Justice and correctional services and 10 Others wherein sections
16(7), 17(6), 18(3)(a), 19(6), 20(6), 21(6) and 22(7) of the Regulation of Interception of Communication-Related Information Act 70 of 2002 (“RICA”) were declared constitutionally invalid.
6. The Minister of Police is before this Court to oppose the confirmation of the above judgment and order as well as to partially appeal same.
7. In terms of the directive, the Minister’s heads of argument ought to have been filed on the 14th of January 2020. This application is brought as a result of a regrettable failure to file the heads of argument on time. They shall accordingly be filed four days late.
8. I am advised that the question of whether or not to grant condonation is largely a discretionary matter. The factors to which this Court may have regard are well-established. The relevant factors inform the structure of my submissions below. I shall organise my submissions under the following headings:
8.1. First, I shall set out the explanation as to the manner in which the delay in filing the heads of argument came about;
8.2. Second, I shall address the length of the delay;
8.3. Third, I shall submit that the Minister’s case to appeal and opposition raises an issue of public importance; and 8.4. Fourth, I shall respectfully submit that the prejudice to the
Respondents or this Court in the event that condonation is granted is negligible.
9. I shall summarise the Minister’s conclusion and prayer in the final section of this affidavit. It is my humble request that condonation be granted.
REASONS FOR THE DELAY
10. Following the directive of the above Honourable Court and in the
communications between the instructing attorney and counsel on brief it was indicated to me that there would be no difficulty in complying with the directive.
11. I was regrettably advised during the course of the morning of Tuesday, the 14th of January 2020 by the instructing attorney that counsel on brief was unlikely to comply with the directed filing date of Tuesday the 14th of January 2020.
12. It thereafter became apparent at 3pm on even date that indeed there would be no compliance with the Court directive.
13. I was instructed by my office to consider the appointment of a new counsel in order to avoid further delay. I instructed the attorney to brief new counsel for purposes of drafting the required heads of argument and representing the Minister of Police on the date of hearing.
14. The new counsel was only available on Friday, the 17th of January 2020 and immediately proceeded to prepare the necessary papers for filing on Monday the 20th of January 2020, thus making the heads of argument, as already stated, 4 days late.
EXTENT OF THE DELAY
15. The heads of argument and practice note were filed as soon as was reasonably possibly after the new counsel was briefed; 4 days later than the directed date.
16. I am advised to respectfully submit that the degree of lateness in the filing of the heads of argument is not egregious.
17. In my respectful submission, the Minister has good prospects that its appeal will succeed. Moreover, the appeal raises issues of clear public importance. It would thus be in the interests of justice to grant condonation. I say so for the following reasons:
17.1. The Minister’s appeal undertakes an important inquiry into the proper balancing of constitutional rights wherein it is submitted by the Minister that the impugned provisions in RICA in respect of post-surveillance notification are a reasonable and justifiable limitation on the right of access to court;
17.2. The Court a quo’s order (if confirmed) will weaken the law
enforcement agencies in their functions to investigate, combat and prevent crime: thus adversely impacting on the inhabitants of the Republic; and
17.3. The Minister’s appeal (in an extremely crucial manner) deals with the priniciples of judicial deference and the separation of powers.
18. Accordingly, the issues raised are constitutional matters of public importance and the Minister’s appeal grounds demonstrate that the Minister enjoys good prospects of success on appeal.
PREJUDICE
19. In accordance with the directive, the parties are still in the process of exchanging written argument, it is therefore submitted that, in this context, there would be no substantial impact upon the administration of justice.
20. It is therefore submitted that the administration of justice would benefit from a proper ventilation of the issues.
CONCLUSION
21. The delay in filing the heads of argument on time was not deliberate. Though it is regrettable, I am advised to respectfully submit that the delay, and will not cause the respondents or the Court any substantial prejudice.
22. If condonation is granted, I respectfully submit that there will be no substantial delay to the administration of justice.
23. For the reasons above, it is submitted that a proper case for condonation has been made out.
24. It is prayed that the Honourable Court exercise its discretion in favour of the Minister of Police and grant the condonation sought.
WHEREFORE I pray for an order as set out in the notice of motion.
ELEANOR DELAINE GROENEWALD
Thus sworn and signed before me at PRETORIA on this the _____ day of JANUARY 2020, after provisions of Government Notice No. R.1258 of July 1972 (as amended) have been complied with.
COMMISSIONER OF OATHS
COMMISSIONER OF OATHS:
FULL NAMES:
CAPACITY:
ADDRESS:
