Motion proceedings

Litigious civil matters can be instituted in one of two ways: either by way of an action or by way of an application. The decision relating to the correct procedure will depend on whether the adjudication of the matter is possible solely considering the written evidence given under oath (affidavits) or whether oral evidence and witness examination should be led.

Application proceedings, unless concerned with interim relief, are all about legal issues based on common cause facts. Unless special circumstances exist, they cannot be used to resolve factual issues because they are not designed to determine probabilities without oral evidence. That said, our courts have developed a principle, known as the Plascon-Evans rule, which allows courts in certain circumstances to make a determination on disputes of fact in application proceedings without having to hear oral evidence.

The general rule was initially formulated in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd [1957] (4) SA 234 (C) where the court held that:

“where there is a dispute as to the facts, a final interdict should be granted in motion proceedings only if the facts as stated by the respondents, together with the admitted facts in the applicant’s affidavit, justify such an order, or where it is clear that the facts, although not formally admitted, cannot be denied and must be regarded as admitted.”

In Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A), the Appellate Division (now known as the Supreme Court of Appeal) found that the rule formulated in Stellenbosch Farmers’ Winery required clarification and qualification where final relief was sought in motion proceedings.

• The general rule is still that in proceedings where disputes of fact have arisen on affidavits, a final order, whether an interdict or some other form of relief, may be granted if the facts averred in the applicant’s affidavits, which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.
• The power of the court to give such final relief on the papers before it is, however, not confined to such a situation.
• In certain cases denial by a respondent of a fact alleged by an applicant may not raise a real, genuine or bona fide dispute of fact. If the respondent in such a case has failed to apply for the deponent(s) concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court, and if the court is satisfied as to the inherent credibility of the applicant’s averments, the court may decide the disputed fact in the applicant’s favour, without hearing oral evidence.

Therefore, when factual disputes arise in motion proceedings, relief should be granted only if the facts stated by the respondent, together with the admitted facts in the applicant’s affidavits, justify the order.

Exceptions to the rule

The court noted there may be exceptions to this general rule, such as where the allegations or denials are so far-fetched, or clearly untenable that the court is justified in rejecting them on the papers.

More recently, in Wightman t/a JW construction v Headfour (Pty) Ltd and Another [2008] (3) SA 371, Heher JA held that:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely withing the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognise or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents inadequate as they may be and will only in exceptional circumstances be permitted to disavow them. There is this a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes dully and accurately in the answering affidavit. If that does not happen it should come as no surprise that the court takes a robust view of the matter.“

The legal practitioner acting on behalf of a respondent therefore has to ensure that the content of an answering affidavit is clear, concise, factually correct and duly contradicts the averments made by the applicant, where the respondent is able to do so.

It should be noted that the Plascon-Evans rule is not applicable to interlocutory matters and only to final relief.

As is clear from the above, courts take a robust view in respect of the Plascon-Evans rule. Presiding officers have started calling for a more forceful approach to the determination of disputes of fact in certain circumstances. However, one has to be cautious before adopting a more robust approach at first sight, as this will enable presiding officers to have more discretion in ordering final relief on written evidence (affidavits) without resorting to oral evidence. 

A more robust approach stands to be tested and until a new rule or approach has been identified and endorsed by our courts, the Plascon-Evan rule prevails.