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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)
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?