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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 076217/2023
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES
DATE: 21/11/2025
SIGNATURE
In the matter between:-
MANTURA SALOME HLONGWANE First Plaintiff
MALATJIE BEAUTY SEKELE Second Plaintiff
BEAUTY THLAPE Third Plaintiff
SOUTH AFRICAN NATIONAL CIVIC ORGANISATION Fourth Plaintiff
CONCERNED RESIDENTS OF MAMELODI EXT 4 Fifth Plaintiff
AND 128 OTHERS
V
THE NATIONAL HOUSING FINANCE CORPORATION SOC LTD First Defendant
NU-WAY HOUSING DEVELOPMENTS (PTY) LTD Second Defendant
HLANO FINANCIAL SERVICES (PTY) LTD Third Defendant
PIERRE ANDRE BRUYNS Fourth Defendant
SONJA BRUYNS Fifth Defendant
CITY OF TSHWANE METROPOLITAN MUNICIPALITY Sixth Defendant
MEC FOR THE DEPARMTNE OF HUMAN SETTLEMENTS
(GAUTENG PROVINCE) Seventh Defendant
BANKIEN COUNCIL Eighth Defendant
SHERIFF CULLINAN Ninth Defendant
DEEDS REGISTRY Tenth Defendant
PUBLIC PROTECTOR OF SOUTH AFRICA Eleventh Defendant
DEEDS REGISTRY Twelfth Defendant
Heard on: 09 September 2025
Delivered: 21 November 2025 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 21 November 2025.
Summary:
1. The institution of legal proceedings before seeking certification of class action
relief constitutes an irregular step. Accordingly, the pleadings can be set aside.
2. Certification is a preliminary matter that should be resolved before a class action
may be instituted. It is the interest of justice that there is a proper adjudication of
the matter.
3. Courts have an inherent power to regulate their own processes in te rms of
Section 173 of the constitution.
4. The interest of justice is an all -encompassing factor that should be considered.
The courts the Children's Resource matter and Mukaddam enunciated the
principles when considering class action matters.
ORDER
___________________________________________________________________
It is ordered:-
Claim A
1. The Rule 30 Application is granted.
2. The summons and particulars of claim is hereby set aside
3. The respondents shall pay the costs of the application in terms of both Claims A
and B on Scale B.
JUDGMENT
___________________________________________________________________
KOOVERJIE J
THE RULE 30 APPLICATIONS
[1] The applicant, Hlano Financial Services Pty Ltd instituted a Rule 30 application
against the respondents on the premises that they should have instituted a cl ass
action. Hence the issuing of the summons was an irregular step . Accordingly, the
applicant seeks to set aside the main action proceedings instituted by the
respondents.
[2] The applicant further claims for costs in terms of the second Rule 30 that was
issued. When the respondents were informed that the service of the notice of bar
on the applicant constituted an irregular step , they subsequently withdrew same.
The applicant thus proceeds only with a costs order against the m. The applicant
herein is the third defendant in the main action proceedings. The fourth and fifth
respondents will be referred to as the respondents.
THE LOCUS STANDI OF THE FIRST RESPONDENT
[3] I have observed that only the first respondent , Ms Hlongwane filed answering
papers in this Rule 30 application and does so in her own capacity. She,
nevertheless, proceeded to address the issues raised against the fourth and fifth
respondents, namely the residents of Mamelodi Ext 4. She does not allege in
what capacity she was entitled to respond on behalf of the fourth and fifth
respondents. Although this point was not raised by the applicant, the uncertainty
in respect of the manner in which the respondents are cited in the main matter
herein constitute the core dispute between the parties.
THE ISSUES FOR DETERMINATION
[4] The main issue for determination is whether the Rule 30 application should
succeed on the grounds that the respondent had taken an irregular step by
instituting the action proceedings prior to having the matter certified as a class
action. If the Rule 30 is granted the next enquiry would be whether the summons
and particulars of claim should be set aside.
BACKGROUND
[5] Upon receipt of the summons and particulars of claim, the applicant filed a Rule 7
notice. The purpose was to ascertain that when the fourth and fifth plaintiffs (w ho
constituted 128 individuals and collectively referred to as the fifth plaintiff) had
given Ramapuputla Attorneys the power of attorney , did they do so as individual
litigants or through representative authorized on their behalf.
[6] In response to the Rule 7 notice, the respondents provided two mandates and
power of attorney that reflected “The affected and concerned community of
Mamelodi” had appointed Joseph Kgathle of SANCO to represent them and in
turn Mr Kgathle gave Ramapuputla Attorneys, the power of attorney to act for the
fourth and fifth plaintiffs. In the other mandate and power of attorney the Lawyers
for the Human Rights were given the power of attorney to act on behalf of them as
well.
[7] The applicant conten ded that on the reading of t wo mandates and power of
attorney, the matter should properly be a class-action. This was clearly not an
instance where individual litigants instituted the action proceedings. Moreover, no
individual powers of attorney were disclosed. This resulted in the Rule 30 notice
being served on the respondents’ attorney of record.
[8] Since no response was received from the respondents , a second notice was
served, allowing the respondents 10 (ten) days to remove the cause of complaint.
Their failure to do has resulted in the proceedings now before me.
[9] It was denied that Mr Kgathle was authorized in a representative capacity. They
persist in their argument that the litigants ha ve joined these proceedings in their
individual capacities.
[10] Notably from the answering papers, it was alleged that Mr Kgathle was not acting
in a representative capacity. The following was alleged:
“29 It is submitted that although the chairperson of SANCO, Joseph Kgatle, is
a general representative of the residents of Mamelodi, He is not a
representative of the plaintiffs in the main action.
30 It is submitted that SANCO has always acted in the interests of the
residents of Mamelodi however they are not acting in their representative
capacity in any way in the main action.
31 The 4th respondents thus has locus standi to institute the action as they are
a civic organisation consisting of residents of Mamelodi that aims to
ensure that the residents of Mamelodi (some of who form part of its
members) attain their unencumbered title deeds.
32 The signed special power of attorney on behalf of SANCO was given with
authority by the residents of Mamelodi who formed part of the
organisations members.
33 It is submitted that the 4 th respondents are not preclu ded from instituting
legal proceedings on behalf of its members and to defend residents legal
interests.
34 It is further submitted that representation in a class action is a request in
isolation and inference cannot be made that it is a class action solel y
because there is representation (although that is not the case in this
instance)
Then at paragraph 52 they appreciate what constitutes a class action:
“52 It is trite law that the general definition of a class action is an action
instituted by a representative on behalf of a class of person in respect of
who. the relief claimed involves substantially similar in respect of all
members of the class.”
They continue at paragraph 53:
“53 It is submitted that all the plaintiffs individually requested legal
representation with regards to the matter. As such all the plaintiffs signed a
power of attorney and a list of their identities was attached to the
particulars of claim”.
54 As such the plaintiffs do not have a representative but are ordinarily joined
as co-plaintiffs as they are entitled to in terms of Rule 10(1) and (2) of the
Uniform Rules of Court.
55 On or around May 2023 a ll the plaintiffs consulted with the attorneys of
record individually seeking legal representation and advice.
[11] Accordingly they seek relief as all affected persons in the main cause of action.
They individually hold the defendants accountable for the alleged unlawful
conduct on their respective parts. The nub of their claim is that their rights have
been violated in terms of the Disestablishment of the South African Housing Trust
Limited Act 26 of 2002.
[12] In their particulars of claim various allegations are levelled against all or certain of
the defendants, inter alia, that:
12.1 there was a violation of the Disestablishment of the South African Housing
Trust Limited Act 26 of 2002;
12.2 there was failure to transfer the defendants’ properties;
12.3 there was failure to register mortgage bonds and collect cancellation costs;
12.4 the defendants failed to consider that the plaintiffs are beneficiaries of low
cost housing schemes subsidized by government in terms of which the
plaintiffs automatically qualified and were granted subsidies in terms of the
Housing Act 107 of 1997;
12.5 the first, third, sixth, seventh, eighth and eleventh defendants failed to
assist the plaintiffs following the conclusion of an agreement between the
National Department of Housing with the Association of Mortgage Lenders.
12.6. the seventh defendant unlawfull y failed to comply with its mandate to
ensure the plaintiff's right to housing was protected.
12.7 the second defendant unlawfully sold and transferred the plaintiffs
properties to Pierre and Sonja which transfers were bold ab initio for
illegality.
12.8 The Public Protector failed to investigate the alleged illegal conduct of the
defendants.
[13] To appreciate the context in which Mr Kgathle ’s name is mentioned , it is
necessary to consider the wording of the mandates and power of attorney. The
first mandate and power of attorney reads:
“I, the undersigned, Joseph Kgathle (“ Kgathle”), identity number 7[...], in his
capacity as Chairperson (SANCO) … duly authorized by THE AFFECTED AND
CONCERNED COMMUNITY OF MAMELODI do hereby nominate and appoint
Nakape Edwin Ramapuputla (hereinafter referred to as “ the attorney ”) of
Ramapuputla Attorneys Incorporated, situated at Office No.: 5 [...], 5th Floor, B[...]
Building, Lynnwood Bridge, Pretoria, with the power of substitution and/or their
nominees with power of substitution to be our attorney of record with the power of
substitution to act on my/our behalf in legal proceedings arising between the
member of the Executive Council for Human Settlements and/or Department for
Human Settlement (Gauteng Province), Association of Mortgage Lenders,
Banking Council (any other financial institution involved), Sheriff
Cullinan/Mamelodi, Hlano Financial Services (Pty) Ltd, National Finance Ho using
Corporation (Pty) Ltd (formally South African Housing Trust), Tshwane Local
Municipality, Nu -Way Housing Developments (Pty) Limited and any unknown
parties.
This mandate includes, but is not limited to eviction applications, declarators,
interdicts arising as a result of the failure of the Gauteng Department of Human
Settlements to perform in terms of The Process Agreement which incorporated
chapter 7 of the National Housing Code 2000, the Illegal Transfer of Properties in
the name of the National Fin ance Housing Corporation (formerly South African
Housing Trust), the illegal sale by public auction by Nu -Way (sic) or any other
company, failure by Khayelethu/Hlano to register and/opr cancel mortgage bonds,
failure by Khayalethu/Hlano to transfer the pro perties in the name of the
occupants, and any other cause of action.”
[14] The wording in the second mandate and power of attorney’s was similar. Therein
again Mr Kgathle as chairperson of SANCO was authorized by the Affected and
Concerned Community of Mamelodi to nominate Lawyers for Human Rights on
their behalf.
[15] On just a plain reading of the said mandates and power of attorney , the only
plausible conclusion I arrive at is that Mr Kgathle was authorized to represent
them. No contrary evidence has been furnished to illustrate that the residents
signed separate and individual powers of attorney. The wording is clear - Mr
Kgathle was authorized to represent a class of persons namely the “affected
residents of Mamelodi”. The fact that a list of the members had been attached to
the pleadings is inconclusive.
[16] In fact t he respondents appreciated that the court has to regulate its own
processes provided that it is in the interest of justice and the applicants cannot
merely force the respondents to institute a class-action.
LEGAL PRINCIPLES IN RELATION TO CLASS ACTION
[17] In Children's Resources Centre Trust Matter1 the definition of the concept of a
class action (as defined by Professor Mulheron) was referred to. At paragraph 16
the court stated:
"[16] ....
'A class action is a legal procedure which enables the claims (or
parts of the claims) of a number of persons against
the same defendant to be determined in the one suit. In a class
action, one or more persons ("representative plaintiff) may sue on
his or her own behalf and of a number of other persons ("the class")
who have a claim to a remedy for the same or similar alleged wrong
to that alleged by the representative plaintiff, and who have claims
that share questions of law or fact in common with those of the
representative plaintiff ("common issues"). Only the representative
plaintiff is a party to the action. The class members are not usually
identified as individual parties but are merely described. The class
members are bound by the outcome of the litigation on the common
issues, whether favourable or adverse to the class, although they
do not, for the most part, take any active part in that litigation.’ 2
[18] In developing the common law class actions may be brought, not only in terms of
section 38(c) of the Constitution in relation to the infringement or potential
infringement of a right guaranteed in the Bill of Rights. Our courts have
acknowledged that class actions are a particularly appropriate way in which to
1 Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others 2003 (3) 213 SCA para 16
and 19
2 See Vlok and other v Georgiou and others 2019 ZAGPPHC953 (Tolmay Judgment) para 39
vindicate some types of constitutional rights, but they are equally useful in the
context of mass personal-injury cases or consumer litigation.
[19] Certain factors that may assist courts in determining if a matter should be
classified as a class action have been listed by our courts 3. It however cautioned
that the overriding test always is whether it is in the interest of justice to grant
certification of a cl ass action. The factors may include but are not limited to the
following:
i. the class is identifiable by an objective criteria in that the proposed
class shall be defined with sufficient precision that a particular
individual’s membership of the class can be objectively determined;
ii. the cause of action raises a triable issue and the person applying
for certification of a clas s-action must satisfy the court, firstly, that
there is a case that is legally tenable, secondly a prima facie case
exist on the evidence;
iii. there are sufficient issues of fact or law that are common to all
members of the class;
iv. the relief sought or damages claim ed flow from the cause of action
and must be ascertainable and capable of determination;
v. the class action must be the most appropriate means of allocating
damages to the members of the class.
3 Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others 2003 (3) 213 SCA para 26
vi. In the event that damages is awarded then the appropriate
mechanisms must exist to ensure that damages , if awarded, are
allocated to members of a class in a particular manner.
[20] In Mukaddam4 the Constitutional Court clarified the proposition that such factors
must be determined in the “interest of justice”. The factors must not be treated as
conditions precedent or considered to be jurisdictional facts which are cast in
stone for an application for certification to succeed. A rigid application is
undesirable. The absence of one or other requirement must not oblige a cou rt to
refuse certification where the interest of justice demands otherwise.
[21] At paragraph [42] in Mukaddam, the court highlighted that a court has inherent
powers to regulate its own processes on matters of procedure provided that it is in
the interest of justice:
“42. Section 173 makes plain that each of the superior courts has an inherent
power to protect and regulate its own process and to develop the common
law on matters of procedure, consistently with the interests of justice. The
language of the section suggests that each court is responsible and
controls the process through which cases are presented to it for
adjudication. The reason for this is that a court before which a case is
brought is bett er placed to regulate and manage the procedure to be
followed in each case so as to achieve a just outcome. For a proper
adjudication to take place, it is not unusual for the facts of a particular case
4 Mukaddam v Pioneer Foods (Pty) Ltd and Others 2013 (5) SA 89 (CC) paragraphs 36 to 40
to require a procedure different from the one normally followed. When this
happens it is the court in which the case is instituted that decides whether
a specific procedure should be permitted. The determination to certify a
class action is not different to exercising the power to allow one procedure
instead of the other.”
[22] Hence where a class of persons are represented it is necessary for the procedural
steps to be put in place. In particular, the court has to first satisfy that a class exist
and approve of the representative litigants. The party seeking to represent the
class must first apply to court for the authority to do so. Certification is a
preliminary matter requiring re solution before class -action may be instituted. In
the absence of certification , a representative has no right to proceed unlike
litigation brought in a person’s own interest 5. The certification allows the court to
control the procedural aspects of the proceedings and prescribe appropriate rules
and procedures to enable litigants to pursue their claims. Ultimately the court is
required to adopt a robust approach and ensure that process is put in place to
develop the common law and the interest of justice.
[23] Rule 10 is envisaged in situation s where any number of persons each of wh om
has a claim, whether jointly, jointly and severally, and separately join as plaintiffs
in one action against one or more defendants. In such a case each plaintiff
institutes the proceedings on his/her own stead.
[24] This is different to class actions, w hich makes provision for one or more plaintiffs
to represent a larger group of similarly affected individuals in an action . In other
words, a representative is nominated to represent the class of individuals.
5 Vlok and Others Georgiou and Others [2017] ZAGPPHC412 at paragraph 15 (Murphy Judgment)
[25] It is of utmost importance that the matter is properly before the court so that the
disputes can be appropriately and effectively adjudicated. The re looms a danger
when all members of the class may not be known to the class representative. In
such an instance, it has always been advised that adequate notice be given to all
potential members of the class so that they become aware that the outcome of
the class action as they would be bound by the outcome of the proceedings.
FINDINGS
[26] In determining whether a case for a class action has been made out, on the facts
together with the “interest of justice” factor . I am of the view that the litigation is
demonstrative of a class action in that:
26.1. The residents of Mamelodi Ext 4 constitutes a class with common interest .
They belong to an identifiable class of persons.
26.2. The averments in the particulars of claim illustrate that the affected
residents face common issues and have pleaded same. Their right of relief
ultimately must depend on the determination of issues of fact , of law or
both, that is common to them all, which binds them as a class together. It
is appropriate to deal with their combined interest in a class action, as
opposed to separate actions. As long as the sufficient points of
commonality in relation to the facts and law that bind the members of the
class together, a class action is appropriate.6
[27] The standard to be applied in assessing whether a proposed claim action reflects
a cause of action raising a triable issue is whether the cause of action is legally
tenable and whether the respondents have put forth a prima facie case. There are
clearly live disputes between the parties. At this stage, I am however not required
to ascertain if there are triable issues. Ultimately the court considering the
6 Children’s Resource Centre para 26-27
certification application will be able to assess the cause of action and ultimately
determine whether there exists a triable issue.7
[28] The interest of justice standard for certification is a flexible test. The court in
Mukaddam echoed that the interest of justice is the all-encompassing standard to
be met when certifying a class. There must be an appropriate balance struck
between allowing class action to enhance the right of access to justice and the
improper use of mechanism to promote the members interest. The determining
factor is whether it is in the interest of justice to certify a class action.
[29] In the circumstances of this matter I find that it would be the interest of justice for
the matter to be certified as a cl ass action. It would be to the advantage of both
the court and the litigants that the matter be adjudicated, in a fair and structured
manner and in anticipation of a just outcome.
CONCLUSION
[30] Consequently the applicant succeeds in its Rule 30 relief as the in itiation of the
action proceedings constituted an irregular step. Rule 30 makes provision for a
court to set aside the proceedings. Rule 30(3) permits a court to set aside a
proceeding if it consider s it to be irregular or improper and make any order it
deems appropriate in the circumstances . Every court is entitled to ensure that
proceedings are dealt with appropriately, in a just and fair manner thereby
ensuring that all the affected parties are appropriately advised and represented.
[31] The respondents were forewarned again in the second Rule 30 notice that the
certification process has to precede the institution of action proceedings. In the
premises the applicant succeeds with the Rule 30 application.
[32] Proceedings instituted prior to certification process being finalized are considered
to be irregular. Both the Children's Resource Centre and Mukaddam matters
7 Children’s Resource Centre para 39
made it clear that certification is required before proceedings can be instituted.8 In
upholding this proposition in law, I find the summons and particulars of claim
should be set aside.
COUNTER APPLICATION
[33] The counter application i s irregular under the circumstances . A Rule 30
application was instituted. It is envi saged that no further steps can be taken by
any other party until the irregular step is addressed . Moreover, t he counter
application required the disclosure of certain documents. It does not address the
cause of complaints set out in the Rule 30 application.
COSTS
[34] The applicant sought punitive costs against the respondents on the basis that
despite them been repea tedly advised of the irregular step, failed to address the
irregularity. Punitive costs are granted in exceptional circumstances when there is
gross negligence or mala fIdes. I am of the view that such costs are not warranted
in these circumstances. Such costs are granted in exceptional circumstances
when there is inter alia gr oss irregularity vexatious and mala fides. This is not the
case here. As the respondents are ordered to pay the cost on party and party
scale C.
_____________________________
H. KOOVERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
8 of Children’s Resource Centre
Appearances:
Counsel for the applicants: Adv. R Adams
Instructed by: MAP Attorneys
Counsel for the respondents: Mr. NE Ramapuputla
Instructed by: Ramapuputla Attorneys Inc
Date heard: 09 September 2025
Date of Judgment: 21 November 2025