Once it's decided that the legal route should be taken to enforce a civil claim, the next step is to decide in which forum to bring it. Civil litigation is instituted in one of two ways: either by trial action or motion proceedings. Both proceedings take place in court where the presiding officer decides the matter on a balance of probability. Both procedures may also be resolved out of court, if agreed between the parties, by way of alternative dispute resolution such as arbitration or mediation.
An action proceeding is instituted by issuing a summons. In the case of a relatively straightforward claim, a simple summons will be issued, but where the particulars are more complicated a combined summons is best suited. All action proceedings are resolved at trial by evidence that is led before the court, if not settled between the parties beforehand or dismissed due to a technicality.
Motion proceedings on the other hand are brought by way of notice. They differ in that no oral evidence is led in court. The parties exchange affidavits setting out the facts of their respective cases supported by sufficient documentary proof. This is why it is said that motion proceedings are decided on the papers put before the court.
If the facts are disputed between the parties, the case must not be brought on motion proceedings because an applicant instituting motion proceedings in these circumstances runs the risk of its application being dismissed with costs. The court may, in exceptional circumstances, order that oral evidence is led to qualify a fact inadequately supported by documentary proof or in dispute.
What is important to note in motion proceedings is which party bears the risk of their case being dismissed in favour of the other party when a dispute of fact arises.
Up until the recent decision in Buffalo Freight Systems v Crestleigh Trading (311/09)  ZASCA 66 (24 May 2010), where facts were in dispute, the applicant always ran the risk that the court would, in the event of a dispute of fact, accept the facts as set out in the respondent's affidavit and dismiss the application. This principle was established by the Supreme Court in the Plascon-Evans Paint case and meant that the applicant's evidence would automatically have been dismissed and the respondent's evidence relied on when the two differed in their content.
However, since the Buffalo Freight case, where facts are in dispute between the parties to motion proceedings, the risk has now been equalised. In this case the court further investigated the respondent's affidavits and evidence and found that the respondent's version of the facts was so farfetched and indefensible that it couldn't be relied on to decide the case. The court then favoured the applicant's more probable account of the facts and dismissed the respondent's fanciful and untenable explanation of what had taken place.
There is a moral to the story. During motion proceedings, to avoid affidavits and evidence of disputed facts being dismissed, the applicant and the respondent should support their claims with substantial and independent documentary evidence. By doing so, they will increase their probability of success. The court can be left with only one conclusion: based on these facts, the more probable of the two versions should be accepted.
Sam Oosthuizen and Karen Heath