n Annual Survey of South African Law - Civil and constitutional procedure and jurisdiction
|Article Title||Civil and constitutional procedure and jurisdiction|
|© Publisher:||Juta Law Publishing|
|Journal||Annual Survey of South African Law|
|Publication Date||Jan 2006|
|Pages||763 - 777|
The proper approach to disputes of fact in application proceedings is a recurrent theme. The rule in Plascon-Evans Paints Ltd v Van Riebeek Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634H is well-entrenched as the guide to whose version should prevail in such cases. But should it be? In Mahala v Nkombombini 2006 (5) SA 524 (SE) the court was faced with an urgent application involving a dispute over rights to bury a deceased person. The respondent, the mother of the deceased, disputed that the applicant was the deceased's common law wife as claimed. The funeral was two days away, leaving no time for a referral to oral evidence. The court advocated a robust approach. It considered a departure from the rule in Plascon-Evans to be appropriate (para 9).
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