Many years ago the former SCA set out what it regarded as the correct approach to be adopted in resolving factual disputes and to assist practitioners the thrust of that judgment follows.
“ On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual witnesses;
(b) their reliability; and
(c) the probabilities.
As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as
(i) the witness’s candour and demeanour in the witness-box,
(ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his behalf, or with established fact or with his own extracurial statements or actions,
(v) the probability or improbability of particular aspects of his version,
(vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events.
As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on
(i) the opportunities he had to experience or observe the event in question and
(ii) the quality, integrity and independence of his recall thereof.
As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues.
In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.”
For the application of that correct approach see: