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)

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.