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Article 47/2025

The ordinary rule in motion proceedings is that an applicant must stand or fall by its notice of motion and the averments made in its founding affidavit (President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC); Betlane v Shelly Corp CC 2011 (1) SA 388 (CC) and Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC)).

Apart from the above restriction in motion proceedings, another restriction is that, generally, such proceedings cannot be used to resolve factual disputes because they are not designed to determine probabilities.

Under what circumstances can a final order be granted in motion proceedings?
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With reference to Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), the supreme court of appeal, in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), held that a final order can only be granted in motion proceedings:

  • if the 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 above is not applicable if the respondent’s version:
    • consists of bald or uncreditworthy denials, or
    • raises fictitious issues of dispute, or
    • is palpably implausible, or
    • is farfetched, or
    • is so clearly untenable that the court is justified in rejecting them merely on the papers

See, further:

  • Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA), para [55]
  • Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC)
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?