The High Court dismissed the application, finding that the case involved material disputes of fact which could not be resolved on the papers. Since these disputes had been reasonably foreseeable, the Court held that the challenge should have been brought by way of summons, which would prompt a trial to resolve the factual disputes, rather than on application, where the disputes would be resolved on the papers.

On appeal, the Constitutional Court in Mamadi and Another v Premier of Limpopo Province and Others [2022] ZACC 26 disagreed. The Court interrogated Rule 53, finding that litigants looking to review a decision may forgo the expediency which an application under Rule 53 confers and instead institute action proceedings. That said, the Court also confirmed that litigants are not obliged to do so when foreseeable factual disputes arise as they may apply for a referral of the matter to oral evidence or to trial, or the disputes of fact may be resolved through an application of the Plascon-Evans rule.

The rule laid down in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A) is a staple reference in application proceedings. It holds that where disputes of fact arise on affidavit, a final order can be granted only if those facts alleged in the applicant’s affidavits which are admitted by the respondent, together with the facts alleged by the respondent, justify such an order. This, at least in theory, means that a party wishing to take an administrative decision on review but who anticipates a factual dispute, is not obliged to go by way of summons which may delay a resolution as the process leads to a trial.

This is an interesting judgment for businesses that occasionally bid for and secure state tenders, as Rule 53 provides the mechanism through which they may challenge the actions of administrative bodies on review. These reviews tend to be two-pronged: first, an interim interdict is brought to halt the commencement of a project pending a court’s decision on the main application, followed by the main application itself. If the interdict is granted, no work can begin until the review proceedings have been concluded and application proceedings in terms of Rule 53 are preferable as they are generally a speedier process. But the Constitutional Court’s ruling does not substantially change the available options in review proceedings where there are pre-existing and material disputes of fact. What the court has done is to clarify that the Plascon-Evans rule can be applied to disputes of fact that have arisen on the papers, even where those disputes were pre-existing and material and that parties are not bound to proceed by way of action.

The “in theory” caveat arises from the risk that an applicant takes when aware of a dispute of fact, that the court will be prepared or even able to decide the matter on an application of the Plascon-Evans rule, bearing in mind that the applicant never knows for certain at the outset of a matter what a respondent will say in its answering affidavit. Also, a respondent in an opposed application proceeding is likely to make the best use of any dispute of fact in order to secure a dismissal of the application. The cautious litigant will be very hesitant to go by way of application in the face of a significant and pre-existing dispute of fact.