IN WHAT may prove to be a first in our legal history, the Constitutional Court on 12 July 2021 heard an application for the rescission of an earlier judgment delivered on 29 June 2021. In that judgment, the court found Mr. Jacob Zuma, former President of this most Republic, guilty of contempt of court for his refusal to comply with an
This is an interesting piece. But I am afraid that you are guilty of as much confusion as you accuse the minority judges in the Constitutional Court.
In particular ,it seems that you do not understand the difference between trial and motion proceedings. Trials are intended to resolve disputes of fact. Motions er intended to reach legal resolution where either there are no disputes of fact or where the disputes, such as they are are irrelevant and can be put aside.
The rule in Plascon Evans is not, as you incorrectly suggest such that where a respondent files an affidavit revealing disputes with the founding affidavit of the applicant, the court iis bound to accept the veracity of respondents affidavit. The rule simply stipulates that the court may in certain circumstances make an order against the respondent even accepting the truth of his or her allegations. Where material disputes remain which have to be resolved for a decision the court will either refer it for evidentiary hearing ( in limited disputes ) or full-blown trial where the disputes are wide-ranging. Where the court is of the view that the applicant adopted the wrong procedure i. e motion proceedings where ot knew ther would be disputes of fact it will simply dismiss the application
Having re-read my characterisation of Plascon-Evans, I agree with you that I should not have said the court is bound to accept the veracity of the respondent's affidavit. Mea culpa. All that I wanted to say is that a court would decide the matter on the basis of the respondent's version of the facts; not that it would decide the matter in favour of the respondent. That is what I read S v Zuma to say at para 8: "factual disagreements in motion proceedings are to be dealt with in accordance with the rule in Plascon-Evans, which stipulates that, subject to certain exceptions, a court should rely only on evidence given by the deponents for the respondents."
Thank you for a most gracious reply. Your article does raise a number of important points and makes some incisive comments on the judgments in the Constitutional Court. I look forward to see how the Court resolves some of the issues in dealing with the rescission application
Dear Mr Mafora
This is an interesting piece. But I am afraid that you are guilty of as much confusion as you accuse the minority judges in the Constitutional Court.
In particular ,it seems that you do not understand the difference between trial and motion proceedings. Trials are intended to resolve disputes of fact. Motions er intended to reach legal resolution where either there are no disputes of fact or where the disputes, such as they are are irrelevant and can be put aside.
The rule in Plascon Evans is not, as you incorrectly suggest such that where a respondent files an affidavit revealing disputes with the founding affidavit of the applicant, the court iis bound to accept the veracity of respondents affidavit. The rule simply stipulates that the court may in certain circumstances make an order against the respondent even accepting the truth of his or her allegations. Where material disputes remain which have to be resolved for a decision the court will either refer it for evidentiary hearing ( in limited disputes ) or full-blown trial where the disputes are wide-ranging. Where the court is of the view that the applicant adopted the wrong procedure i. e motion proceedings where ot knew ther would be disputes of fact it will simply dismiss the application
Dear Errol,
Thank you for your comment.
Having re-read my characterisation of Plascon-Evans, I agree with you that I should not have said the court is bound to accept the veracity of the respondent's affidavit. Mea culpa. All that I wanted to say is that a court would decide the matter on the basis of the respondent's version of the facts; not that it would decide the matter in favour of the respondent. That is what I read S v Zuma to say at para 8: "factual disagreements in motion proceedings are to be dealt with in accordance with the rule in Plascon-Evans, which stipulates that, subject to certain exceptions, a court should rely only on evidence given by the deponents for the respondents."
Dear Dan
Thank you for a most gracious reply. Your article does raise a number of important points and makes some incisive comments on the judgments in the Constitutional Court. I look forward to see how the Court resolves some of the issues in dealing with the rescission application