Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others,

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.

It was held:

“[5] 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:

Conflicting versions: Credibility and balancing probabilities

Summary

Here’s a point-form summary of the guidance set out by Nienaber JA in Stellenbosch Farmers Winery & Others v Martell et Cie & Others:

  1. Technique for resolving factual disputes:
    • Courts make findings based on: a. Credibility of factual witnesses. b. Reliability of those witnesses. c. Probabilities of each version presented.
  2. Credibility (a):
    • Veracity of a witness depends on: i. Candour and demeanour in court. ii. Latent or blatant bias. iii. Internal contradictions in testimony. iv. External contradictions with pleadings, established facts, or prior statements. v. Probability or improbability of aspects of their version. vi. Comparison of their performance with other witnesses.
  3. Reliability (b):
    • Depends on factors including: i. Opportunities the witness had to observe the event. ii. Quality, integrity, and independence of their recall.
  4. Probabilities (c):
    • Courts analyse the probability or improbability of each party’s version.
    • After assessing credibility, reliability, and probabilities, the court determines if the party with the burden of proof has discharged it.
  5. Hard cases:
    • Occur when credibility and probabilities point in different directions.
    • When credibility and probabilities are balanced, probabilities prevail.