Law vs Fact

Questions of fact concern the who, what, where, and when of a case – the tangible events or circumstances proven by evidence. These issues are case-specific and unique to each dispute. For example, in a contract claim, whether a party actually signed an agreement or what was said in a meeting are questions of fact. Because facts are specific events, a court’s finding on a factual issue in one case carries no binding effect in future cases. Trial courts (or juries, where applicable) are tasked with resolving factual questions by weighing evidence and assessing credibility.

Questions of law, by contrast, involve determining the meaning and application of legal rules. They include interpreting statutes, common-law principles, or the terms of a contract, and deciding how the law applies to established facts. Legal issues are general in nature – they define rules or standards that apply across many cases. For instance, deciding whether a statute permits a certain claim, or clarifying the legal definition of negligence, are questions of law. A court’s ruling on a legal question (its ratio decidendi) can serve as precedent, binding future courts .

In practice, certain determinations long recognized in South African jurisprudence illustrate the divide. For example, whether a defendant’s conduct was wrongful (breaching a legal duty) in a delict claim is regarded as a legal question to be decided by the court as a matter of law. By contrast, whether the defendant was negligent (i.e. fell short of the reasonable person standard) is typically a factual inquiry – it must be proven by evidence and inference in each case. As one court put it, negligence “must be proved by the party alleging it,” emphasizing that it is a question to be resolved on the facts of the case (Seti v SA Rail Commuter Corp, High Court, 8 Aug 2013, referring to the test in Kruger v Coetzee 1966 (2) SA 428 (A)). Another example is the content of foreign law: although it might seem legal in nature, South African courts treat foreign law as a question of fact to be proved by expert evidence. These examples underscore that the label “fact” or “law” depends on the nature of the issue and South African legal doctrine, not merely on its subject matter.

Mixed questions of fact and law lie in between – they involve applying a legal standard to a particular set of facts. Here, the facts are usually settled, and the issue is whether those facts meet the legal test or definition. South African courts acknowledge that “legal issues and factual issues can never truly be separated” in a judgment, and many disputes require combining both. A classic mixed question in civil matters is whether a set of facts satisfies a statutory concept or common-law standard. For instance, determining whether a person was “carrying on business” or whether income was “derived from farming operations” under a tax statute involves both fact-finding and the interpretation of those terms. Similarly, in a contractual context, deciding if a party’s actions amount to a material breach may require factual findings about the conduct and a legal judgment whether that conduct, as found, counts as a breach under the law.

South African courts have developed guidelines and tests to distinguish questions of fact from questions of law. In general, a question of law exists if the issue can be decided by applying legal principles independently of the particular facts of the case. If resolving the issue would establish a rule for future cases, it is likely a legal question. For example, interpreting the wording of a statute or contract clause is a legal question because it involves ascertaining the meaning of language for all cases, not just the dispute at hand. Another indicator of a legal question is the need to decide whether the correct legal standard was applied – such as whether the court adopted the proper test for negligence or the correct legal criteria for a remedy.

By contrast, a question of fact is identified when the issue revolves around the evidence and circumstances specific to the case, without needing to expound any new legal principle. If the outcome turns on the credibility of witnesses, the weight of particular testimony, or other case-specific details, the question is factual. A useful test is that a question of fact can be answered by proof (yes or no) from the evidence, whereas a pure question of law requires legal reasoning. The Constitutional Court has defined a question of fact as one “capable of proof” by evidence, as opposed to requiring legal interpretation.

For mixed questions, the courts look at what predominates or the nature of the issue being decided. One approach is to break the mixed question into components: first, determine the historical facts, and then ask whether the legal standard was met. Often the application of a legal standard to admitted or proven facts is seen as a question of law (sometimes called an “ultimate issue” of law). As an illustration, in Commissioner, SARS v Stepney Investments (SCA, 2016), the court had to decide if the taxpayer was “carrying on farming operations” for income tax purposes. The factual background was largely undisputed, and the Supreme Court of Appeal held that “once all the facts…have been ascertained, the question whether on those facts there has been a carrying on of farming operations…is a question of law.” Even if that issue were viewed as mixed, the SCA noted, it “is not the sort of matter in regard to which an appellate court would need to display…deference”* to the trial court. In other words, when the issue is essentially about fitting facts into a legal definition, the appellate court treats it akin to a legal question.

On the other hand, if a mixed question is closer to a factual judgment or involves a value judgment by the trial court, the classification may tilt towards fact. For example, in a defamation case, whether a published statement is defamatory can be a mixed question; it involves the content of the words (fact) and the legal standard of how a “reasonable reader” would understand them (law). South African courts sometimes treat this ultimate determination as one of law (since it applies an objective standard), but they remain mindful of the factual context. The key is that factual components (what was said, in what context) must be found first, and only then is the legal characterization made . As one academic source explains, *“the question of fact must first be answered before the court can know which legal question(s) must be dealt with.” Thus, courts distinguish fact from law by analysing the nature of the question and the role of general legal principles versus case-specific evidence in answering it.

The fact-law distinction significantly affects a litigant’s right to appeal and the scope of appellate review in civil matters. In South Africa, appeals from a lower court’s final judgment generally lie on both factual and legal issues, but leave to appeal is required (except in certain automatic appeals). The prospects of obtaining leave and succeeding on appeal often depend on whether the would-be appellant can show a credible complaint on a point of law or a material factual error.