Factual disputes

Resolving factual disputes in necessary in almost all legal proceedings but different approaches are adopted depending on the nature of the proceedings and whether actual evidence is adduced or whether the court is faced with allegations in affidavits.  So in motion proceedings only the affidavits are before the court and not witnesses, whereas in trial proceedings there will evidence in person and there should be cross-examination.

There are important authoritative judgments dealing with both those situations.

Motion proceedings

Plascon-Evans rule: Factual disputes in motion proceedings

“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 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 Horseshoe Caterers Ltd., 1976 (2) SA 930 (A), at p 938 A-B;
  • Tamarillo (PtyLtd B N Aitken (PtyLtd, 1982 (1) SA 398 (A) at pp 430-1;
  • Associated South African Bakeries (PtyLtd Oryx & Vereinigte Bäckereien (PtyLtd 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 (PtyLtd Jeppe Street Mansions  (Pty)  Ltd, 1949 (3) SA 1155 (T), at pp 1163-5;
  • Da Mata 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 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 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).”

Trial proceedings

Stellenbosch Farmers’ Winery Group Ltd v Martell & Cie SA (427/01) [2002] ZASCA 98 (6 September 2002)

“[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.”

See also:

Conflicting versions: Credibility and balancing probabilities