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Article 62/2022

What is the approach to be adopted to resolve disputes of fact in motion proceedings?

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The test formulated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A), and so applied in Thebe Ya Bophelo Healthcare Administrators v National Bargaining Council for the Road Freight Industry 2009 (3) SA 187 (W) amounts to the following:

  • the facts stated by the respondent, together with the admitted or undisputed facts in the applicant’s affidavit, provide the factual basis for a finding
  • the above position is applicable unless the court is justified in rejecting the respondent’s version on any one or more of the following grounds:
  • the dispute is not real or genuine (on the basis of a bare denial) or
  • the denials in the respondent’s version of bald and uncreditworthy (Wightman t/a JA Construction v Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA)) or
  • the respondent’s version raises obvious fictitious disputes of fact or
  • the respondent’s version is palpably implausible or farfetched or so clearly untenable that the court is justified in rejecting that version

See, further, National Scrap Metal (Cape Town) v Murray & Roberts 2012 (5) SA 300 (SCA)

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?