If no disputes of fact exist, one party, called the “Applicant” can bring an application “on motion” to a court for relief against the other party, called the “Respondent” usually for some sort of interdictory relief, such as preventing the latter from marketing a soft drink called Koka Kola in unlawful competition with the brand Coca Cola.
This is a quicker and usually cheaper procedure than issuing a summons and going to trial, often years later.
The basic test is whether the matter can be argued on affidavit and where oral evidence of witnesses is not required.
A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed.
In Frank v. Ohlsson’s Cape Breweries Ltd., 1924 A.D. 289 at p. 294, INNES, C.J., said:
“… But where the facts are really not in dispute, where the rights of the parties depend upon a question of law, there can be no objection, but on the contrary a manifest advantage in dealing with the matter by the speedier and less expensive method of motion.”
In order to determine matters on motion a Court must decide whether a real and genuine dispute of facts exists. The question always is whether there is a real issue of fact which cannot be determined without the aid of oral evidence. A safe test is whether the applicant is entitled to relief on the facts stated by the respondents, together with the admitted or undisputed facts stated by the applicant.
Disputes of fact:
A real dispute of fact can arise in one or other of the following ways:
- Where the court is satisfied that the party who purports to raise the dispute has in his or her affidavit seriously and unambiguously addressed the fact said to be disputed.
- The respondent may deny one or more of the material allegations made on the applicant’s behalf and produce evidence to the contrary or apply for the leading of oral evidence of witnesses who are not presently available or who, though averse to making an affidavit, would give evidence if subpoenaed.
- The respondent may admit the applicant’s affidavit evidence but allege other facts, which the applicant disputes.