While hundreds of people who claimed that their homes were unfairly repossessed will turn to court to have a R60 billion class action against major banks certified, the court ordered that no more affidavits may be filed in this matter.

The Gauteng High Court, Johannesburg, is due to hear the matter relating to the class action later this month. But it recently delivered a judgment regarding interlocutory applications in the long-running proceedings to have the matter classified as a class action.

The applicants, among others, wanted the court to grant them an indulgence to file further affidavits to bolster their case. This is in spite of previous pronouncements by judges that the pleadings have closed.

The certification of a class action was instituted in February 2020 against four of the country’s major banks, as well as against financial institutions and public bodies.

In the certification application, which is due to be heard in court later this month, the applicants seek to certify a class action to claim damages against the banks.

Their case is that the banks sold their properties for amounts substantially less than their market value, or not as a last resort. They said that on this basis, the banks are liable for the losses they have suffered as a result.

The applicants also want to include as members of the class those persons who were affected by sales in the execution of properties they owned.

The applicants propose four classes, with the first described as the main class, of people whose property was sold in execution, allegedly for less than 90% of its market value.

The second, referred to as the “not last resort” class, comprises persons falling within the main class whose property was sold in circumstances where execution is alleged not to have been a measure of last resort.

The third class, described as the “shortfall debt class”, comprises persons who are currently indebted to one of the banks, or who were previously indebted and settled that debt, as a result of a property being sold in execution – allegedly both for less than its alleged value and for less than what was owing to the bank.

The fourth class, referred to as the “overcharged class”, comprises persons who allege that they were overcharged legal or related fees in the course of enforcement proceedings instituted by the banks in respect of their mortgage bonds.

Their claim for damages against the banks is based on three independent causes of action, which include in delict, in that it is alleged that the banks’ conduct in the form of the sale of the properties in execution was wrongful and for which the banks are at fault.

The other cause claimed is in contract, in that it is alleged that the banks charged the class members charges and fees that are not authorised under the contracts with their customers. It is also claimed that the banks have acted contrary to the Constitution in the sale of some of the properties during the sale of execution processes.

This recent interlocutory application did not delve into the merits of the issues but simply dealt with procedural aspects. The banks, however, earlier made it clear that they will oppose the class action proceedings. They denied any unscrupulous conduct and highlighted that they always have the best interests of their clients at heart.

Judge Leonie Windell, who heard the interlocutory application, noted that the applicants continued for years to file dozens of additional affidavits, despite repeated objections and two judicial directives requiring procedural compliance.

Further affidavits were filed up to last year, including expert opinions.

Lawyer Douglas J Shaw, who represents the applicants, however, asked the court to allow the filing of these affidavits. The banks opposed the request to file more affidavits.

“The certification application has now been pending for more than five years. The effect of the delay on the administration of justice and on other litigants is significant,” Judge Windell said in refusing the application.

Shaw, meanwhile, gave the assurance that he is ready and prepared to take on the banks in court on February 24.

zelda.venter@inl.co.za

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