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Question 1

Dispute of fact Dispute of fact can be said to take place where the respondent denying all material allegation alleged by the applicant and producing positive evidence to the contrary. Dispute of fact can arise where the respondent admitting applicants evidence stated on the affidavit by alleging other facts which the applicant disputes or where the respondent concedes that he has no knowledge of the main facts stated by the applicant, denies those facts and puts the applicants to proof. The respondent may also state that he can lead no evidence himself, or by others, to dispute the truth of the applicant’s allegations, but puts the applicant to the proof thereof by oral evidence subject to cross examination. All this was stated in Room Hire Case.

Question 2
Option that an applicant have when a dispute of fact arise during application

It is the general rule that in an application proceedings no witnesses appear before the court and evidence is placed before the court in the form of written statement signed and sworn by the witnesses before the hearing. This statement are called affidavit. A material dispute of fact arises when there is conflicting evidence about what happened. If a material dispute of fact is anticipated, an action should be instituted so that the witnesses who placed the evidence in the form of affidavit are compelled to give their evidence by a word of mouth (oral).

Application proceedings are not recommended where a litigant foresees that his opponent will raise material disputes of fact in an answering affidavit in response to his founding affidavit. If a material dispute of fact arises when comparing the founding affidavit and answering affidavits, the judge hearing the application will forced of the uniform rules of the court which must made in a judicious manners. The judge may be forced to take one of the following options:  Dismiss the application if the litigant who initiated the proceedings foresaw or ought reasonably to have foreseen before initiating the proceeding that a dispute of fact will Arise.

 Refers the material dispute of fact to oral testimony if it can be disposed of easily and speedily without affecting any other issues in the case.  Refers the entire matter for trial and orders that the notice of motion stand as a simple summons, that the founding affidavit stand as the plaintiff’s declaration that the answering affidavit stand as the defendant plea, and make any other order relating to the conduct of the proceeding as a trial. However, if there is an agreement as to what the fact of the case are or there is no dispute of fact, application proceeding should be brought because there is no need for the judge to decide between conflicting evidence of what happened. The supreme court of appeal has clarified the courts approach where there is an apparent dispute of fact in application proceedings.

Question 3

It was an ordinary court challenge that dispute of fact arises in application proceedings. These was addressed in the case of Plascon-Evans v Van Riebeeck Paints. This case has also laid down the principle called the Plascon-Evans rule. The Plascon-Evans rule provides that the court may decide the disputed facts on the applicant’s favor without hearing oral evidence. If the court is satisfied as to the inherent credibility of the applicant’s averment.

The rule was formulated in Stellenbosch Farmers Winery Ltd v Stellenvale Winery (pty) Ltd, where there is a dispute as to the facts, a final interdict should be granted in motion proceedings only if the facts as stated by the respondents, together with the admitted facts on the applicant affidavit, justify such an order, or where it is clear that the facts, although not formally admitted, cannot be denied and must be regarded as admitted.

The Plascon-Evans rule was applied in the Swaziland case Dlamini v Teaching Service Commission & two others, In this case the applicant applied to the Swaziland industrial court for an order setting aside the first respondent decision to suspend him without pay for a period of one year on the basis that it was fraught with irregularities, the 1st respondent

denied that there were irregularities and a serious disputes of facts arising from the papers before the court. The Swaziland industrial court held that where disputes of facts arise in motion proceedings, the court may make any competent order it deems fit including an order referring to oral evidence a specific dispute of facts or referring the matter to trial. The court ordered that the matter be referred to trial.

However, there may be exception to this general rule, as where the allegations or denials of the respondent are so far-fetching or clearly untenable that the court is justified in rejecting them merely on the papers.

In the case of Room Hire CO (pty) ltd V Jeppe Street Mansions, whereby Murray AJP highlighted that there is certain types of proceedings e.g. in connection with insolvency in which by statute motion proceedings are specially authorized or directed, and that there are on the other hand certain classes of cases e.g. matrimonial cause in which motion proceedings are not permissible at all. But between these two extremes is an area in which according to recognized practice a choice between motion proceedings and trial action is given according to whether there is or is not an absence of a real dispute between the parties on any material question.

It is a normal cause that dispute of fact may arise in an application, in such instance where dispute of fact arises it is optional to opt to use action proceeding other than continuing using application as this may affect the outcome of the final decision by the court.

Table of contents
1. What do you understand by the concept dispute of fact in an application proceeding?

2. What is it that you have to do if dispute of fact arises during an application?

3. Discuss dispute of fact with reference to the case law ( Plascon-Evans case law)

University of Venda
School of law
Group assignment



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: CIVIL PROCEDURE 4541 : KHOMOLA R : 28-02-2014