CC CASE NO: ________
LT CASE NO: 412/2015 In the matter between:
MATODZI RAMUHOVHI (BORN NETSHITUKA) First Applicant THINAMAANO EDSON NETSHITUKA Second Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA First Respondent
MINISTER OF JUSTICE & CORRECTIONAL
SERVICES Second Respondent
ESTATE OF LATE MASEWA JOSEPH
NETSHITUKA Third Respondent
MUNYADZIWA JOYCE NETSHITUKA Fourth Respondent MASTER OF THE HIGH COURT, THOHOYANDOU Fifth Respondent
MINISTER OF HOME AFFAIRS Sixth Respondent
WOMEN’S LEGAL CENTRE TRUST Amicus Curiae
AFFIDAVIT ON BEHALF OF THE THIRD AND FOURTH RESPONDENTS, IN RE APPLICATION FOR CONFIRMATION IN
TERMS OF RULE 16(4)
I, the undersigned,
MUNYADZIWA JOYCE NETSHITUKA make oath and state:
1.
1.1 I am an adult female with address c/o BDK Attorneys.
1.2 The facts contained herein fall within my personal knowledge unless mentioned otherwise or appear different from the context and are both true and correct .
1.3 Where I make submission of a legal nature I do so on the advice received.
2.
I am the fourth respondent in my personal capacity as well as the third respondent in my capacity as the duly appointed executrix in the estate of the late Musenwa Joseph Netshituka.
3.
I do not oppose the application for certification as the only part that would have had impact on either myself in my personal capacity or in my capacity as the executor would be if the order had retrospective operation. In this regard the learned justice Lamminga and in particular relating to retrospectivity ruled in paragraphs 64 to 74 as well as the conclusion, that the finding of unconstitutionality and the interim relief will not affect marriages that have already been terminated by death or divorce, and proceeded to find that the orders
should be similar to those made by the Constitutional Court in the Gumede case.
4.
In terms of paragraph 3 of the conclusion of the judgment, it clearly provided that it would not be applicable to customary marriages that have been terminated by death or divorce before the date of this order or affect the legal consequences or any act done or omission or fact existing in relation to the polygamous customary marriage before this order was made.
5.
In the light of the aforementioned I do not oppose the relief sought and seek certification of the portion of the order that pertains to the retrospectivity similar as in the Gumede case that served before this Honourable Court.
6.
In as far as the issue of costs are concerned, I have noted the appeal that was included in the application for certification. I have been advised that this Honourable Court in appropriate circumstances would consider such an appeal even absent a formal notice of appeal which was not filed by the applicants. I support the criticism of the learned justice Lamminga regarding the failure to award costs ag ainst
first, second and sixth respondents on the basis that clarity on this issue, specifically having regard to the Gumede matter, should have been provided by amended legislation and the necessary amendments should have been prepared and referred to Parliament.
7.
As a result of the aforementioned it is humbly prayed that the costs of the applicants and the third and fourth respondents should be paid by the first, second and sixth respondents.
DEPONENT
I certify that the deponent acknowledged that she knows and understands the contents of this affidavit, which was signed and sworn before me at ________ on this ______ day of _____________
2016 and that the provisions of the Regulations contained in Government Notice R1258 of 21 July 1972, as ame nded, were complied with.
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