Brief Summary

Civil Procedure — Class action certification — Applicants seeking to certify a class action against banks for damages related to property sales in execution — Interlocutory applications for condonation and admission of affidavits filed late — Court emphasizing the importance of compliance with procedural rules and case management directives — Applicants' failure to adhere to deadlines and directives resulting in dismissal of applications for condonation and admission of further affidavits.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns two interlocutory applications brought in the context of an application for the certification of a class action. The interlocutory applications were (i) an application for condonation for non-compliance with prior judicial case-management directives, and (ii) an application for the admission of further affidavits filed outside the ordinary sequence of affidavits in motion proceedings.

The applicants were Innocent Gwisai and 12 others (the first to thirteenth applicants). The respondents cited in the main certification proceedings included several financial institutions and public bodies; however, in these interlocutory applications only the first to fourth respondents—being Nedbank Ltd, Absa Ltd, FirstRand Bank Ltd, and Standard Bank Ltd (collectively described as “the banks”)—opposed the relief sought.

The procedural history was central to the determination of the interlocutory relief. The certification application was instituted in February 2020. The banks delivered answering affidavits between October 2020 and March 2021, and the applicants delivered replying affidavits in mid-2021. Despite the ordinary closure of pleadings at that point in motion proceedings, the applicants thereafter continued, without leave, to upload numerous additional affidavits to the electronic record over an extended period, prompting repeated objections by the banks and multiple case-management interventions by the court.

The underlying subject-matter of the proposed class action concerns allegations that the banks, in relation to sales in execution of mortgaged properties, sold properties for substantially less than market value, and/or not as a last resort, and that class members were harmed through shortfall debts and/or overcharging of legal or related enforcement fees. The judgment expressly did not deal with the merits of certification, but with the procedural permissibility of the applicants’ attempts to expand the evidentiary record and obtain indulgences for non-compliance.

2. Material Facts

The following facts were treated as material by the court and formed the basis for the determination of the interlocutory applications.

After the close of the standard affidavit sequence by mid-2021, the applicants continued to upload further affidavits to CaseLines without obtaining leave. The court recorded that the additional affidavits eventually numbered approximately 44 and were described by the applicants as “confirming” or “supplementary”, but were filed in a manner the banks repeatedly objected to and which required ongoing case-management.

A key factual feature was the existence and non-compliance with two judicial directives intended to impose procedural discipline and finality on the record.

First, following a case-management meeting in August 2024, Vally J directed the applicants to file, by no later than 25 February 2025, all affidavits they intended to rely upon for certification and to bring a formal application for their admission, together with any necessary condonation application. The applicants did not comply with that directive within the stipulated period.

Second, following a further case-management meeting on 30 May 2025, the court (Windell J) directed the applicants to bring two distinct applications—one for condonation explaining the failure to comply with Vally J’s directive, and one for the admission of the further affidavits—both to be filed by 27 June 2025.

On 27 June 2025, the applicants filed two notices of motion supported by affidavits deposed to by their attorney, Mr Douglas J Shaw. The documents did not align with the directives in the manner required: the papers included an admission application and an attempt to deal with condonation in a way the court later found misdirected and incomplete in relation to the true defaults.

On 29 August 2025, after the banks had delivered answering affidavits in the interlocutory applications and raised non-compliance, the applicants delivered a third notice of motion seeking condonation for failure to comply with the directives. This was done outside the stipulated deadlines and, on the court’s account, without a full explanation covering the entire period of default.

The applicants also sought, as part of their relief, condonation for the late filing and admission of further affidavits in the future, up to a period shortly before the certification hearing. The court treated this attempt at prospective authorisation as incompetent and dismissed it at the outset.

A further application dated 25 November 2025 (“Second Application: Supplementary Affidavits and Sundry Matters”) was delivered two days before the hearing of the interlocutory applications. The banks had no opportunity to answer it. After the court raised the procedural difficulties at the commencement of the hearing on 27 November 2025, Mr Shaw withdrew this later application, and it did not form part of the determination.

The court also accepted as material that further affidavits continued to be uploaded to the record even after the directives, with the last upload appearing to be 23 July 2025, and that some materials were uploaded to CaseLines without being formally served, requiring at least one respondent to monitor the electronic record for changes.

3. Legal Issues

The central legal questions were procedural and discretionary in nature.

The first issue was whether the applicants had made out a proper case for condonation for non-compliance with court directives, which required an assessment of the adequacy of the explanation for default and whether condonation would be in the interests of justice.

The second issue was whether the applicants had shown good cause for the court to grant leave to file and rely on further affidavits beyond the ordinary founding, answering and replying affidavits in motion proceedings. This required the court to evaluate whether the affidavits were genuinely confirmatory or impermissibly supplementary, whether there was a satisfactory explanation for lateness, and whether their admission would cause prejudice that could not be cured by a costs order.

The dispute therefore largely concerned the application of settled legal principles to procedural facts, involving the court’s discretion in relation to indulgences (condonation and the admission of further affidavits), informed by evaluative assessments of fairness, prejudice, delay, and the integrity of case-management.

A related procedural issue was whether, in consequence of the decisions on condonation and admission, the court should confirm finality by directing that pleadings are closed and that no further affidavits may be filed without leave.

Although the banks sought punitive costs and raised the possibility of a de bonis propriis costs order against Mr Shaw, the court did not finally determine that question in this judgment; it considered the procedural fairness requirements and reserved the costs issue for later determination after further submissions.

4. Court’s Reasoning

The court approached the condonation application by emphasising the settled requirement that an applicant must provide a full, detailed, and accurate explanation for the entire period of default, demonstrating that the non-compliance was not wilful and not due to gross negligence. The court relied on established authority that condonation is not granted for the asking and that inadequate explanations are fatal to such relief.

On the facts, the court found that both relevant directives were clear and unambiguous, were issued specifically to bring procedural finality, and were not complied with. It further found that the applicants’ condonation papers did not properly engage with the true defaults. The notice of motion sought condonation for the late filing of the condonation application itself rather than expressly seeking condonation for non-compliance with the directives of Vally J and of Windell J, which the court characterised as misdirected relief.

Even if that defect were to be overlooked, the court held that the explanations advanced—oversight, lack of reminders, pressure of other work, alleged disparities in resources, and the asserted effect of anxiety medication—did not constitute a satisfactory account for failing to comply with express court directives issued months apart. The court also rejected the contention that the significance of the class action justified a more indulgent approach, holding that procedural fairness and orderly administration apply equally in matters of public importance.

In determining whether condonation would be in the interests of justice, the court applied the factors articulated in Constitutional Court authority, including the nature of the relief sought, the extent and cause of delay, the effect on the administration of justice and other litigants, the reasonableness of the explanation, the importance of the issues, and the prospects of success. The court treated prospects of success as particularly important in this context because the condonation was sought to enable the admission of further affidavits; if the admission application had no prospects, condonation would ordinarily not be granted.

Turning to the admission of further affidavits, the court reaffirmed the general motion-proceedings rule that litigation is ordinarily confined to three sets of affidavits, and that further affidavits are permitted only by leave of the court on good cause shown. The discretion to admit them is exercised sparingly and with fairness to both sides as the dominant consideration, including whether a proper explanation exists and whether prejudice is remediable.

A significant aspect of the court’s reasoning was the distinction between truly confirmatory affidavits and supplementary affidavits. The court held that, particularly at the certification stage of a class action, confirmatory affidavits from numerous individual property owners are generally unnecessary because certification is a representative procedure and does not require affidavits from every prospective class member. To the extent the affidavits were genuinely confirmatory, their admission was found to add little or no probative value.

However, the court found that the affidavits were not confirmatory in substance. They introduced new factual material, additional allegations, individualised narratives, and in some instances sought to respond directly to points made in the answering affidavits. This rendered them supplementary, requiring an explanation for why the material was not included earlier and why exceptional circumstances justified admission at such a late stage. The court found no coherent explanation for the incremental late introduction over years, and considered the applicants’ assertion that affected persons came forward over time to reflect a misunderstanding of certification and to be inadequate as justification for continually expanding the record.

The court also pointed to concerns regarding the quality and form of several affidavits, including features such as template-like content, conclusory allegations, irrelevant or incomplete annexures, and, in some cases, substantive insertions after signature and commissioning. These features supported the court’s conclusion that the affidavits functioned as an impermissible attempt to bolster and supplement the applicants’ case.

Prejudice to the banks was treated as substantial and cumulative. The court reasoned that each new affidavit would require detailed investigation into particular loan accounts, execution processes, valuations, and historic court files, often involving archival retrieval. Given the historic nature of the transactions and the number of affidavits, the court found this burden would undermine procedural finality and risk indefinite delay; such prejudice was not curable by a costs order.

The court then considered two specific affidavits relied on heavily by the applicants, namely those of Mr Garth Zietsman (statistical expert) and Mr Norman Hornby (purportedly addressing class administration). Both were assessed under the same principles for further affidavits. The court found the Zietsman affidavit had been introduced in an irregular manner after the answering affidavits, without adequate explanation why the evidence could not have been obtained earlier, and without proper allegations in the admission papers explaining its role in the certification enquiry. The court further criticised its generality, noting that broad aggregated statistical conclusions were not tethered to identifiable transactions and would require the banks to answer vague, systemic allegations without sufficient specificity, thereby aggravating prejudice.

As to Hornby, the court found the affidavit was plainly directed at responding to criticisms in the banks’ answering affidavits about class management capacity and should have been in the founding papers if it was to be relied upon. It was therefore not confirmatory, and the admission application lacked the necessary detail and satisfactory explanation for lateness.

Having found that the admission application lacked prospects of success, the court concluded that the interests of justice did not favour granting condonation for repeated and prolonged non-compliance coupled with a materially expanding record. The court also held that it could not grant advance permission to depart from the rules or condone future non-compliance.

Finally, the court accepted the banks’ request for clarity and finality and directed that, in light of the refusal of condonation and dismissal of the admission application, the evidentiary record must be treated as settled: the founding, answering, and replying affidavits had long since been delivered, and further affidavits would require leave of the court.

On costs, while noting the banks’ request for punitive costs and a possible order de bonis propriis against Mr Shaw, the court held that such an order is extraordinary and requires a proper opportunity to be heard. The court therefore stood the issue down and reserved costs for later determination after further written submissions.

5. Outcome and Relief

The court dismissed the application for condonation for non-compliance with the directives issued by Vally J and by Windell J.

The court dismissed the application for the admission of further affidavits, including rejecting any attempt to obtain prospective authorisation to file further affidavits close to the certification hearing.

The court ordered that pleadings in the certification application are closed, and that no further affidavits may be filed without leave of the court.

The court reserved the question of costs, including the appropriate scale and whether any costs order should be made de bonis propriis against Mr Douglas J Shaw. Mr Shaw was directed to deliver written submissions (supported by affidavit if advised) by 26 January 2026 explaining why a de bonis propriis order should not be made, with respondents permitted to respond within ten days of service.

Cases Cited

Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA); [2003] 4 All SA 37 (SCA).

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] 2 All SA 251 (SCA).

Buffalo City Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (4) SA 331 (CC).

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837 (CC).

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC).

Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013).

James Brown & Hamer (Pty) Ltd (Previously Named Gilbert Hamer & Co Ltd) v Simmons, NO 1963 (4) SA 656 (A).

Milne NO v Fabric House (Pty) Ltd 1957 (3) SA 63 (N).

Transvaal Racing Club v Jockey Club of South Africa 1958 (3) SA 599 (W).

Children Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others 2013 (2) SA 213 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996.

Rules of Court Cited

Uniform Rules of Court.

Held

The court held that the applicants failed to establish a proper basis for condonation because they did not seek appropriate relief for the actual procedural defaults, did not provide a full and satisfactory explanation for prolonged non-compliance with clear court directives, and because granting condonation would not be in the interests of justice.

The court further held that the application to admit further affidavits had no prospects of success. The affidavits were either unnecessary confirmatory material in the context of certification proceedings or, in substance, impermissible supplementary material introduced years late without adequate explanation, and their admission would cause significant prejudice to the banks not curable by a costs order.

The court held that procedural finality was required and ordered that pleadings were closed and that no further affidavits may be filed without leave of the court. The issue of costs, including a potential de bonis propriis order against the applicants’ attorney, was reserved for later determination after further submissions.

LEGAL PRINCIPLES

Condonation for non-compliance with procedural time limits and court directives requires a full, detailed, and accurate explanation for the entire period of delay, and the explanation must be reasonable and bona fide, showing the default was not wilful or due to gross negligence. Condonation is assessed through the flexible standard of the interests of justice, which includes consideration of the extent of delay, reasons for delay, impact on the administration of justice and other litigants, the importance of the issues, and the prospects of success in the underlying application for which condonation is sought.

In motion proceedings, the ordinary rule is that evidence is confined to founding, answering, and replying affidavits. A party seeking to file further affidavits seeks an indulgence and must show good cause, with the court exercising its discretion sparingly and guided primarily by fairness to both sides, including whether there is a satisfactory explanation for lateness and whether prejudice can be cured by a costs order.

In a class action certification context, the court emphasised the distinction between confirmatory affidavits (which merely verify existing evidence and may add little at certification stage) and supplementary affidavits (which introduce new material and require a stringent justification for late admission). Incremental expansion of the evidentiary record over years, contrary to case-management directives, undermines procedural finality and can cause prejudice that is not remediable through costs.

A court cannot grant advance permission to depart from the rules or condone future non-compliance in anticipation. Where repeated irregular filings and non-compliance threaten the integrity of the process, case management may require a clear directive that pleadings are closed and that no further affidavits may be filed without leave.

A costs order de bonis propriis against a legal practitioner is an extraordinary remedy involving serious censure and may not be made without affording the practitioner a proper opportunity to be heard.

Gwisai and Others v Nedbank Ltd and Others (4042/2020) [2026] ZAGPJHC 47 (20 January 2026)