In practice, confirmatory affidavits (which support the founding affidavit) are required in respect of evidence that is within the personal knowledge or experience of the witness providing the confirmatory affidavit. The purpose of these confirmatory affidavits, while narrow, is critical – that purpose being to verify the accuracy of facts attributed to them without necessarily providing independent argument or additional evidence. Without confirmatory affidavits, statements attributed to a witness (other than the deponent to the founding affidavit) risk being qualified as hearsay (and hearsay evidence cannot be relied upon).

The common trend in recent practice is that confirmatory affidavits are drafted by means of a prepopulated template, which offers no factual substance or averments for the court to consider (and potentially rely on) save for the standard phrasing of “I confirm the contents of the affidavit of Mr John Doe insofar as it relates to me.”

The contents of confirmatory affidavits came before the court in the matter of Blue Crane Route Municipality v Storm and Others (1582/2023) [2023] ZAECMKHC 119. In that matter, the court dismissed the applicant’s reliance on confirmatory affidavits because the deponents to those confirmatory affidavits merely stated that they “confirmed the replying affidavit insofar as it pertain[ed]” to them, without identifying or describing the specific conduct that pertained to them. This left the affidavits devoid (in the court’s view) of evidentiary value and weight.

The court held that confirmatory affidavits, if they are to carry weight, must provide personal observations or factual detail and cannot simply rubber-stamp what is said in another affidavit. The practice of using template confirmatory affidavits was described by the court as “a slothful means of placing evidence before a court”. This echoed the Supreme Court of Appeal’s rebuke in Kalil N.O. and Others v Mangaung Metropolitan Municipality and Others (210/2014) [2014] ZASCA 90, which similarly criticised the casual deployment of confirmatory affidavits in motion proceedings, emphasising that actual witnesses should depose to the facts, with particulars, especially where multiple people allegedly witnessed the conduct.

This case is a cautionary tale: confirmatory affidavits are not a procedural box-tick. They must contain substance, or they risk being disregarded entirely. Confirmatory affidavits are essential supporting tools in motion proceedings, but they carry weight only if they provide substantive, first-hand evidence.