Replying affidavits: A tool for rebuttal, not reinvention

Replying affidavits are typically used in motion proceedings where the court’s (or tribunal’s) decision is based on sworn written evidence (affidavits) rather than oral testimony.

The purpose of replying affidavits

In ordinary motion court proceedings, the primary purpose of a replying affidavit is to put up facts that refute the respondents’ case.

Why it matters

Courts rely on affidavits as sworn evidence. Misusing replying affidavits can lead to serious procedural consequences, including having parts struck out or even cost orders against the applicant.

What the courts say

In Swissborough Diamond Mines v Government of the RSA, the Court held that applicants must stand or fall by their founding affidavit.

In Bowman N.O. v De Souza Raldao, the Court warned against presenting a “skeleton” case in the founding papers and trying to “flesh it out” later in the replying affidavit.

In Minister of Environmental Affairs & Tourism v Bato Star Fishing (Pty) Ltd, the Court criticised the common practice of submitting overly lengthy and repetitive replying affidavits, stating that they should be brief and focused. Instead of aiding the court, such affidavits often cause frustration and add little value. The court called for stricter control over unnecessarily verbose submissions.

In Forgeweld Engineering (Pty) Ltd v Cronje, the Court outright rejected a replying affidavit for merely amplifying the founding affidavit and failing to address the core issue. The Court stressed that a replying affidavit should not convolute and inflate the issues before the court.

Legal implications

The legal implications of improperly drafted replying affidavits are significant. Courts may strike out or disregard portions of a replying affidavit that go beyond rebuttal and attempt to introduce new evidence or arguments. A replying affidavit that fails to address the core issues may be deemed irrelevant and inadmissible. The affidavit must be concise, relevant, and responsive— not a platform for re-arguing the case.

Practical implications

For replying affidavits:

• keep it concise;
• focus on rebuttal, not reinvention;
• avoid introducing new arguments; and
• respect procedural rules.

A well-drafted replying affidavit can strengthen your case. A poorly drafted one can sink it.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.