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)
