CIV/T/196/99
IN THE HIGH COURT OF LESOTHO
In the matter between: -
MASIANOKENG WHOLESALERS (PTY) LTD PLAINTIFF
and
ALLIANCE INSURANCE CO LTD 1st DEFENDANT
MINET KINGSWAY INSURANCE BROKERS
LESOTHO (PTY) LTD 2ND DEFENDANT
RULING
Delivered by the Honourable Madam Justice N. Majara on the 26th November 2007
Plaintiff in this matter moved an application in terms of High Court 41 (12) wherein he is seeking this Court-to rule that 1st defendant bears the evidentiary burden to adduce evidence first. This application is opposed by the defendant.
In motivation thereof, Counsel for plaintiff, Mr. Tuchten contended that the term onus is used in two senses two (2) senses to wit; which party bears the risk of non-persuasion at the end of the matter or the duty to rebut. That, in this rule onus is used in the sense of the duty to lead evidence first. Further, that one of the factors to be used in considering an application under this rule is what the justice of the case requires.
Mr. Tuchten added that in the present case paragraph 10 of the defendant's plea is compartmentalized rubric in that the exceptions
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relied on in the agreement between the parties are couched in general and wide terms and that the plea is cast in broad terms because the defendant is relying on one or a combination of the occurrences.
He submitted that it would be intolerable for plaintiff to lead evidence first even if the onus is on it to discharge it. He added that defendant should place before this court specifically on which occurrence it relies. Mr. Tuchten accordingly prayed that the Court should rule that the onus of adducing evidence fall upon defendant in terms of the rule.
In his response, Mr. Viljoen referred the Court to the work of Hoffman and Zeffert in The South African Law of Evidence 4th Edition 1989 p
502 where the learned authors discuss the evidentiary burden.
He added that in this case, the second factor discussed by the authors therein is not applicable nor do the exceptional circumstances mentioned therein. Mr. Viljoen proceeded to make the following submissions:
That the exact nature of the defences relied upon in paragraph 10 of the defendant's plea could have been established by a request for trial particulars and that failure on the pat of plaintiff to do so cannot lead to the advantage it now seeks.
(a) That evidence by either side will relate particularly to what happened at the site when the destruction occurred because this is an important factor. That the evidence will not be particularized under headings as to what cover is included or excluded by the policy. Whether the events described fall within or outside the policy's cover will be for the Court to decide. That plaintiff has to place facts in this regard first because it is not a question of terminology but of what actually happened at the site.
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(b) What is certain is that the party best able to place facts before the Court in that regard is plaintiff whose staff would have been present on the day(s) of the alleged incident whereas defendant was not.
c) A very real possibility exists that defendant will be able to rely on the facts presented by plaintiff to obtain judgment in its favour without leading any evidence because it has no witnesses from the site.
3. The defence set out in paragraph 10 of the plea is prefaced by the condition that the Court has found that plaintiff suffered the losses claimed. That the ruling of the Court that the questions raised by paragraph 10 should be decided separately cannot, for purposes of deciding which party has the duty to begin leading evidence on them, ignore the premise upon which the defence in paragraph 10 is based, to defendant's detriment.
4. Lastly, not only does plaintiff dispose over the best evidence of what occurred at its premises but the terms of the contract
specifically provide that the onus of disproving the exception to the policy's cover upon which defendant relies rests on plaintiff.That on the basis of all the above submissions the application should be dismissed.
In his reply, Mr. Tuchten made the contention that defendant has not limited his defence which he pleaded in a wide scope in contravention
of High Court Rule 22 (3) and as a result a request for further particulars would not have been useful.
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Further, that defendant knows what he means by his defence so that plaintiff does not know what evidence he must bring. That in addition there is no suggestion in the pleadings that entitles defendant to make the submission in 2 (b) above. That in effect defendant is saying he does not know what his case is until he can cross-examine plaintiffs witnesses which would amount to a fishing expedition not to be countenanced in a trial of this nature.
In considering the above submissions I find it prudent to first refer to the provisions of High Court 41 (12) upon which plaintiff relies in this application. It provides as follows:-
"Either party may apply at the opening of the trial for a ruling by the court upon the onus of adducing evidence or as to the right to begin and the court after hearing argument may give a ruling as to the party on whom the onus lies, provided that such ruling may be altered by the court thereafter if the court deems it necessary to prevent injustice."
In my opinion, the submission that the term onus as it is used in the rule should be understood in the context of which party bears the duty to place evidence to support its case before the other is correct. In other words, in this instance, the term onus is not used in its ordinary meaning to wit, the onus of proof. This is confirmed by the comments in Hoffman and Zeffert (supra) p 502 quoted to this Court where the learned authors categorically state this to be the position in the following words: -
"Does the expression "burden of proof in these rules refer to the onus in its ordinary sense, or to the duty to adduce evidence? It seems that the second meaning is intended."
Having established what the meaning of the term is, the next point for consideration is whether in the present case, it is the plaintiff or the defendant who bears the onus as it is used in this sense.
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A brief overview of the facts that brought about this action might cast some light in this regard. However, before I give a summary of the facts, I find it apposite to unequivocally state that I do take judicial notice of the fact that Lesotho experienced political upheavals in the 1998 general elections which culminated in an intervention by SADC forces on the 22nd September 1998 at the instance of the government. All these resulted in inter alia, the looting and burning of some places of business especially in the capital Maseru and its outskirts as well as in other districts' towns.
Although in his submissions during argument Mr. Tuchten argued that I cannot do so because they do not know what I know privately, I do not accept this contention for the reason that not only is this a notorious fact throughout this country but it is so well beyond Lesotho's borders. I however do not intend to dwell on the considerations of what should or should not be found to be notorious facts in this regard since this is not what we are concerned about in this case.
To that extent, suffice it for me to quote a passage from Hoffman (supra) p 417 wherein in discussing the taking of judicial notice of notorious facts the learned authors propound as follows:-
"These may conveniently be divided into two categories. First, there are matters of general knowledge, and second, there are
specific facts which are notorious within the locality of the court. In both cases it is not sufficient for the judicial officer to be satisfied in his own mind that the fact is correct. It must be so notorious, either generally or within his particular area, as to be incapable of dispute among reasonably informed and educated people."
On the facts in this case, it is plaintiffs claim that on the said date, his premises together with the contents therein were destroyed by fire and that he suffered loss occasioned by the fire, riot and strike as described
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in the summons and declaration. This he based on the terms of an agreement of indemnity which he undisputedly entered into with defendant prior to the incident and in accordance of which he contends defendant is liable because as he alleges, the losses fall within the purview of the agreement.
On the other hand, it is the case of defendant while it does not dispute the agreement, it is not liable to pay the plaintiff in the amounts claimed or any other for the reason that the alleged loss or damage was caused by one or more or all of the occurrences set out in General Exception 1(A) as set out in the agreement etc.
The Onus to Adduce Evidence
The issue of who bears the onus to adduce evidence first has been considered in several cases, especially in South Africa. The one that I found to be most useful in this regard is that of Topaz Kitchens (Pty.) LTD. V. Naboom Spa (EDMS) Bpk 1976 (3) SA 470. This is because as obtains in casu, plaintiffs claim was founded on the terms of a contract between the parties and obviously some of the issues for consideration by the Appellate Division therein are by and large analogous to those in the present case.
Further, in that case, as in the present one, defendant had admitted the terms of the agreement between the parties but had gone on to aver an additional term on which it relied in its defence albeit, the actual facts in each not being exactly similar. The net effect of the plea in the Topaz Kitchens case was that although the plaintiff had to prove the terms of the contract, he also had to prove the negative assertion borne by the additional term relied upon by the defendant.
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At page 474 of his judgment, Muller J.A. had this to say regarding the issue of who bears the onus to adduce evidence first: -
"From the decision in Kriegler v Minister and Another, (supra), it is clear that the burden of proof was on the plaintiff, even though it was defendant who relied on an alleged additional term, which was denied by the plaintiff. The burden of proof therefore
involved proving a negative assertion. There is, in my opinion, no justification for the proposition that in cases such as the present case, where the plaintiff seeks to enforce a contract and the onus is on him to prove the terms thereof, which would involve his proving a negative, that burden is alleviated by a duty imposed on the defendant to begin and to adduce some evidence in support of his averment that the additional term relied on by him was agreed upon."
In Hoffman (supra) at p502 it is stated that the answer to the question of who bears the evidentiary burden to adduce evidence first, is as follows:-
Normally, where the plaintiff bears the onus of proof in the primary sense, on one or more of the issues in the case, the plaintiff will also have the duty to begin and adduce evidence;
However, there may be circumstances where, although the plaintiff bears the onus of proof, an admission on the pleadings creates a prima fade case that places an evidentiary burden on the defendant, in which event, he will have the duty to begin - this would happen where a presumption or inference comes into operation that shifts the evidentiary burden to the defendant;
There are dicta that suggest the possibility that considerations of fairness and convenience may sometimes require the defendant to begin although the plaintiff bears the onus.
In the present case, while as I have shown, defendant does not dispute the contract, it nonetheless avers that it is not liable to indemnify plaintiff on the basis of the exception(s) contained therein. On the other hand, it is not plaintiffs case that the alleged exception does not form part of the terms of the contract, but rather that defendant's plea is too wide in its scope to the extent that plaintiff does not know what evidence to bring.
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While I accept that the defendant's plea might be wide in its scope, I am of the view that it is the inherent nature of the defence that brought this about i.e., the terms of the exception relied upon are themselves couched in wide terms. In other words, I do not accept that his plea does not comply with the provisions of High Court Rule 22 (3) for the reason that he has specified on which sections of the exception he relies. In addition, despite all of this, defendant did not make any admission in the pleadings as envisaged by the second submission from Hoffman as it is quoted above that would persuade me to find that the evidentiary burden is cast on it.
Anyway, both parties do not dispute the agreement but rather rely on its different provisions to support their case, and this in my opinion means that even as it instituted this action, plaintiff was fully aware of all of the terms contained therein hence his decision that the said exception notwithstanding, defendant is liable to indemnify him. In other words, it is my view that since plaintiff is the one that is alleging that what took place at the site falls within the ambit of the agreement, not only does it bear the onus of proving its claim, but it is the one armed with the facts of what happened at the site.
This in turn means that because of this fact, it is possible that on the basis of that evidence, defendant can still argue its case without having to bring any evidence to counter those facts at all. In addition, I cannot conjure up what type of evidence defendant would have to adduce to basically prove the negative because it is not the one that alleges that the events took place at the site.
All that it is saying in its plea, no matter how broad the exception relied upon may be is that, it is not liable to indemnify plaintiff because what
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the latter alleges happened at the site falls within the exception in the agreement. Since it is the Court that has to determine this question, it has to hear the factual evidence facts first and as I have already stated it is the plaintiff who has same.
Put differently, it is not the facts per se that will be the determinant factor of liability but rather whether per the said facts, the Court will find that defendant is liable to indemnify plaintiff for the reasons that they are covered under the contract and do not fall under the exception. This means that before either party can argue that what happened falls within the contract or the exception, evidence has to be placed before the Court on the basis of which it can determine whether the terms of the contract apply or not due the exception. This evidence should come from plaintiff because it is the one making the allegation. Otherwise it would be a rather tall order on defendant to be called upon to adduce evidence first when its case might even be possibly confined to legal submissions based on the facts as adduced by the plaintiff. In my opinion, this would amount to an injustice.
Lastly, it is a term of the undisputed contract that:-
"In any action, suit or other proceeding where the Company alleges that by reason of this condition any loss or damage is not covered by this insurance, the burden of proving that such loss or damage is covered shall be upon the insured."
Surely this is a binding term of the agreement and the Court has no reason to find otherwise. In light of all the above, it is my view that it is the plaintiff herein that bears the onus to adduce evidence first and I
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accordingly dismiss the application and rule that plaintiff should lead its evidence first.
N. MAJARA
JUDGE
For plaintiff : Mr. Tuchten SC
For defendant : Mr. Viljoen SC
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