Quotations from judgment
“Before I consider the issues and arguments raised on appeal, it is necessary that I should recount the salient facts, as they appear from the affidavits. In this connection I should mention two points……
Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a final interdict, together with ancillary relief, on the papers and without resort to oral evidence.
In such a case the general rule was stated by Van Wyk J (with whom De Villiers JP and Rosenow J concurred) in Stellenbosch Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at p 235 E-G, to be:
“. . . . where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justify such an order . . . . Where it is clear that facts, though not formally admitted, cannot be denied, they must be regarded as admitted”.
This rule has been referred to several times by this Court (see:
- Burnkloof Caterers Ltd v Horseshoe Caterers Ltd., 1976 (2) SA 930 (A), at p 938 A-B;
- Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd, 1982 (1) SA 398 (A) at pp 430-1;
- Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere 1982 (3) SA 893 (A), at pp 923 G – 924 D).
It seems to me, however, that this formulation of the general rule, and particularly the second sentence thereof, requires some clarification and, perhaps, qualification. [emphasis added]
It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those 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 instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact (see in this regard
- Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3) SA 1155 (T), at pp 1163-5;
- Da Mata v Otto NO 1972 (3) SA 585 (A), at p 882 D – H).
If in such a case the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6(5)(g) of the Uniform Rules of Court (cf.
- Petersen v Cuthbert & Co Ltd, 1945 AD 420, at p 428;
- Room Hire case, supra, at p 1164)
and the court is satisfied as to the inherent credibility of the applicant’s factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks (see eg Rikhoto v East Rand Administration Board, 1983 (4) SA 278 (W), at p 283E-H).
Moreover, there may be exceptions to this general rule, as, for example, where the allegations or denials of the respondent are so far-fetched or clearly untenable that the Court is justified in rejecting them merely on the papers (see the remarks of Botha AJA in the Associated South African Bakeries case, supra, at p 924A).”
See also National Director of Prosecutions v van Rensburg (7523/19)  ZAWCHC 14 (5 February 2021) at para 11 per Gamble J citing, with approval,