It is a well-established principle that a litigious civil matter can be commenced in one of two ways, either by way of legal action or by way of application/motion. The material distinction between these two diverging paths lies in whether the ultimate adjudication of the matter is possible on a consideration of affidavits (written evidence given under oath) alone, or whether oral evidence and witness examination is required.

Application proceedings are mainly utilised in legal disputes which can be expeditiously determined on common cause facts. In other words, there is no material dispute of fact between the counterparties and mainly legal considerations are at issue. However, the dividing line between the two processes is not always well-defined and often applications, properly brought, will unintentionally and inevitably raise disputes of fact.

The Plascon-Evans Rule, developed in the 1984 decision of the Supreme Court of Appeal in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, (“the Rule”) serves as a guide to the courts in determining which party’s version should prevail when disputes of fact are found in motion proceedings. The Rule holds that when factual disputes arise in circumstances where the applicant seeks final relief (i.e. interdicts), the relief should be granted in favour of the applicant only if the facts alleged by the respondent in its answering affidavit, read with the facts it has admitted to, justify the order prayed for. Worded differently, the rule allows the courts, in certain circumstances, to make a determination on disputes of fact in application proceedings without having to hear oral evidence and on the respondent’s written version of events.

A denial by the respondent of a factual allegation in the applicant’s founding affidavit must be real, genuine and bona fide before it can be considered prohibitive to the applicant being granted final relief. This issue was touched upon in the 2011 decision of the Eastern Cape High Court in Islam v Kabir:

“When in application proceedings there is a dispute of fact which has to be resolved on the papers and on the basis of the principle enunciated in the Plascon-Evans Paints matter, the court can only reject the version of the respondent if the absence of bona fides is abundantly clear and manifest and substantially beyond question . [own emphasis added]

Thus, a court must be convinced that the allegations of the respondent are so far-fetched or so clearly untenable that it is justified in rejecting them merely on the papers and without requiring oral evidence to be led.

Where a particular application cannot be decided without the hearing of oral evidence, and where the Plascon-Evans Rule will not resolve the dispute because of the degree of disparity between the parties’ versions of events, the court may order that one of the options set out in Rule 6(5)(g) of the Uniform Rules of Court are followed, which includes the referral of the disputed portion of the matter to oral evidence.

Diverging from Plascon-Evans and the application of a more robust approach:

The Rule is not without its shortcomings and courts have acknowledged the need for a more forceful approach to the determination of disputes of fact in certain circumstances. An example is found in the case of Mahala v Nkombombini where the court was faced with an urgent application involving a dispute over burial rights. The applicant contended that she was the deceased’s common law wife, which was disputed by the mother of the deceased, the respondent in the application. The funeral was to be held in two days, leaving no time for a referral of the factual dispute to oral evidence. The court departed from the Rule in determining the issue and employed a robust approach:

“That approach (Plascon-Evans) is possibly not entirely satisfactory for a matter such as the present.……… a more robust approach is sometimes required and the court should then grant the order if it is satisfied that there is sufficient clarity regarding the issues to be resolved for the court to make the order prayed for.”

It is clear that the robust approach proposed by the court allows presiding officers more discretion in ordering final relief on a consideration of affidavits alone without referring disputes of fact to oral evidence. Not only will a continuation of this trend ensure that applications are argued and decided as expeditiously as possible, but the avoidance of the additional costs associated with preparing for and holding oral evidence hearings will be a relief to litigants.

Whether the courts will continue to develop the common law to allow more incisiveness in the application of the Rule and the swift handling of disputes of fact will be interesting to follow. For now, the Rule remains firmly in place, unless circumstances demand a departure.

Written by Lerato Mlambo and Peter Turner