South Africa: The Plascon-Evans Rule: The Simple Truth…

The nucleus of the Plascon-Evans Rule finds its application in Motion Proceedings.

To expand on this, Motion Proceedings are by their nature designed for the resolution of legal disputes which can be disposed of expeditiously on common cause facts. Simply put, without the need for oral evidence. But this is not always possible as perfection is not always the order of the day and no matter how well intended, even a well drafted application could be ‘cursed' by the odd material dispute of fact creeping in. Coupled with the design of Motion Proceedings to dispose of matters expeditiously and on affidavit (and without the need to hear oral evidence), our courts found a solution and developed the Plascon-Evans Rule to deal with the eventuality of material dispute of fact arising in Motion Proceedings .

This rule found its origin and was initially formulated in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd. It was later confirmed, but more importantly, clarified by the Supreme Court of Appeal (the then Appellate Division) in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd. Since then, our courts have followed and applied the Plascon-Evans Rule in all instances where there are material disputes of fact on the papers and where there is no request for the hearing of oral evidence by the parties. The general rule is that final relief may only be granted if those facts as stated by the respondent, together with those facts stated by the applicant that are admitted by the respondent, justify the granting of an order. Simply stated, the court will consider –

• what facts have been alleged by the respondent in its answering affidavit; against
• the facts and/or version of the applicant which have been admitted by the respondent.

On a quick analysis, what this approach effectively does is to establish which facts are common cause between both applicant and respondent; and thereafter consider which facts that are denied by the respondent are, genuine and bona fide, a dispute of fact. In this regard, where there is indeed a real, genuine and bona fide dispute of fact, a respondent may, as it is entitled to do in terms of the Uniform Rules of Court, refer such dispute to the hearing of oral evidence. Plascon-Evan Rule is not rigid in this sense. If however the respondent fails to do so, the respondent's case will stand and fall on the facts averred in its answering affidavit.

In deliberating on the matter a court will consider whether the defence framed by the respondent against the facts alleged by the applicant are indeed truly disputes of fact, or whether the defence is merely a ‘bare denial' of the applicant's material allegations. If indeed the respondent's defence is found to be a mere denial, and the court is of the view that the applicant's factual version is inherently credible, the court may accept the applicant's factual version and proceed on the basis that it is correct for purposes of determining whether the applicant is entitled to the relief sought.

Moreover, if the respondent's version of the facts, is so improbable or unrealistic and consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable a court would be justified in rejecting the respondents version merely on the papers and determining the matter on the applicant's version of facts.

So you may be inclined to ask what does this all come down to. The answer is a simple one: do not take the formulation of the answering affidavits too lightly. Respondents, and in particular, their legal advisers drafting and settling answering affidavits must engage and immerse themselves with the facts which are disputed, and in so doing, ventilate such disputed facts accurately and comprehensively in the answering affidavit when framing an opposition in Motion Proceedings. If this is not done, the respondent may face the might of the Plascon-Evans Rule with a court accepting and disposing of a matter based on the version as alleged by an applicant.

That said, the Plascon-Evans Rule is not without its flaws and as such courts have adopted a more robust approach to extend the application of the rule in the determination of disputes of facts in particular circumstances, which approach appears to be trending. This is what has happened in the matter of Mahala v Nkombombini, an urgent application pertaining to burial rights in a customary union. In short, the applicant requested an order declaring her right to bury the deceased, whom she claimed was her husband under the conditions of a customary union. The mother of the deceased, the first respondent contested the existence of the marriage and sought to enforce her right to bury her son and she had already started making plans for the burial, which would take place the day following the hearing.

On the papers there was a dispute of fact but given the urgency of the matter, there was no time to refer these disputes to oral evidence for resolution. So the court adopted a more forceful approach of the Plascons-Evans Rule in its determination of the dispute of fact. In doing so the court held that the Plascon-Evans approach –

The effect of employing a robust approach does have the benefit of an expeditious disposal of the matter and a costs saving which would have otherwise been attributed to an oral evidence hearing. However, this “benefit” could come at a completely different cost where presiding officers are allowed wider discretion in ordering final relief only with the benefit of affidavits, without referring the matter to oral evidence. A cautionary alarm is signalled. And that is where the Red Flag does go up!

This bulletin was prepared by partner Rakhee Bhoora, senior associate Roy Hsiao and candidate attorney Caleb Mapatha.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.