together with the admitted facts in the applicant's affidavits justify such an order....
Where it is clear that facts, though not formally admitted, cannot be denied, they must be
regarded as admitted".
This rule has been referred to several times by this Court (see Burnkloof Caterers Ltd v
Horseshoe Caterers Ltd., 1976 (2) SA 930 (A), at p 938 A-B; Tamarillo (Pty) Ltd v B N
Aitken (Pty) Ltd, 1982 (1) SA 398 (A) at pp 430-1; Associated South African Bakeries
(Pty) Ltd v Oryx & Vereinigte Backereien (Pty) Ltd en Andere, 1982 (3) SA 893 (A), at
pp 923 G - 924 D). It seems to me, however, that this formulation of the general rule, and
particularly the second sentence thereof, requires some clarification and, perhaps,
qualification. It is correct that, where in proceedings on notice of motion
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disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or
some other form of relief, may be granted if those facts averred in the applicant's
affidavits which have been admitted by the respondent, together with the facts alleged by
the respondent, justify such an order. The power of the court to give such final relief on
the papers before it is, however, not confined to such a situation. In certain instances the
denial by respondent of a fact alleged by the applicant may not be such as to raise a real,
genuine or bona fide dispute of fact (see in this regard Room Hire Co. (Pty) Ltd v Jeppe
Street Mansions (Pty) Ltd, 1949 (3) SA 1155 (T), at pp 1163-5; Da Mata v Otto, NO,
1972 (3) SA 585 (A), at p 882 D - H).
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If in such a case the respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross-examination under Rule 6(5)(g) of the
Uniform Rules of Court (cf. Petersen v Cuthbert & Co Ltd, 1945 AD 420, at p 428;
Room Hire case, supra, at p 1164) and the court is satisfied as to the inherent credibility
of the applicant's factual averment, it may proceed on the basis of the correctness thereof
and include this fact among those upon which it determines whether the applicant is
entitled to the final relief which he seeks (see eg. Rikhoto v East Rand Administration