Approaching apparent disputes of fact
9 January 2012

A court has confirmed that where parties to litigation put up differing versions, this does not necessarily mean that there is a genuine dispute of fact. Where one party’s version is fanciful and untenable, such evidence goes for nothing whilst the evidence of a single witness as to an undiscredited fact should not be disregarded.

The Supreme Court of Appeal has clarified the court’s approach where there is an apparent dispute of facts in application proceedings, and where the version put up by a party is fanciful and untenable the court may disregard that evidence whilst the evidence of a single witness to an undiscredited fact should not be disregarded.

In Buffalo Freight Systems (Pty) Ltd v Crestleigh Trading (Pty) Ltd and another 2011 (1) SA 8 (SCA), Buffalo Freight Systems was a clearing and forwarding agent which had rendered services to Crestleigh Trading, a furniture importer and retailer. In 2008, Crestleigh Trading experienced financial difficulties and failed to make payment to Buffalo Trading in terms of the credit facility that was in place. Crestleigh Trading then made payment by way of a cheque that was subsequently dishonoured.

Buffalo Freight Systems claimed for confirmation of the lien it had exercised over three of Crestleigh Trading’s containers, payment of R 543 469.54 plus interest and an order authorising Buffalo Freight Systems to sell the containers that it was holding subject to the lien. Crestleigh Trading counter-claimed for the return of the containers.

An apparent dispute of fact arose as to what the parties had agreed on at a meeting on 5 May 2008 regarding payment of the outstanding debt. Buffalo Freight claimed that the Crestleigh Trading had undertaken to pay the outstanding debt in full on a weekly basis, commencing the week after 5 May 2008. Crestleigh Trading alleged that the outstanding debt was to be paid off as and when Crestleigh Trading had the money to make such payments. Accordingly, there was a dispute between the parties as to how and when the debt was to be paid.

In support of its claim, Crestleigh Trading put up affidavits from three witnesses (its manager, a director and an employee) who had been present at the meeting of 5 May 2008. Buffalo Freight Systems put up a single affidavit to support their version of the agreement.

The Supreme Court of Appeal considered the apparent dispute of fact and the evidence put up by both of the parties. The court found that it was “inherently improbable to a high degree” that Buffalo Freight Systems would have agreed to the terms of payment alleged by Crestleigh Trading. The court also took into account that the versions put up in the three affidavits filed on behalf of Crestleigh Trading contradicted each other.

The court confirmed the “robust common-sense approach” to the resolution of disputed facts adopted in Truth Verification Testing Centre CC v PSE Truth Detection CC and Soffiantini v Mould where a respondent either responds with bald and hollow denials of factual matters confronting the parties or even where the respondent provides “a detailed version which is wholly fanciful and untenable”. The courts should be prepared to take an objective analysis of such disputes when they are required to do so.

Courts must be cautious about deciding probabilities in the face of conflicts of fact in affidavits. Affidavits are settled by legal advisors with varying degrees of experience, skill and diligence and a litigant should not pay the price for an adviser’s shortcomings.

The court warned that, in the absence of direct and obvious contradictions, the courts should refrain from judging the credibility of a deponent. However, in certain circumstances, a court may need to adopt a stronger approach to avoid causing injustice to one of the parties. If a party puts up evidence in an affidavit and the facts contained in that affidavit are not contradicted, this does not necessarily establish those facts, even where the other party does not deny them. Where the evidence put up by one party is contrary to all reasonable probabilities or conceded facts, then the court may disregard that party’s version and may accept the version of a single witness whose evidence has not been discredited.

The Supreme Court of Appeal found that Crestleigh Trading’s version as to what was agreed regarding payment of its outstanding debt was fanciful and untenable. Accordingly, the court found that no genuine dispute of fact actually existed between the parties.

The court upheld the appeal and granted the order sought by Buffalo Freight System.