CIV/T/196/99

IN
THE HIGH COURT OF LESOTHO

In
the matter between:-

MASIANOKENG
WHOLESALERS (PTY) LTD PLAINTIFF

and

ALLIANCE
INSURANCE CO LTD 1^ST
DEFENDANT

MINET
KINGSWAY INSURANCE BROKERS

LESOTHO
(PTY) LTD 2^ND
DEFENDANT

RULING

Delivered
by the Honourable Madam Justice N. Majara

on
the 26^th
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 1^st
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 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 4^th
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:

1. 
   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.

   
   

2. 
   (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.

   
   

(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.

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 plaintiff’s 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.

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 22^nd
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 plaintiff’s 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 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, plaintiff’s
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.

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:-

1. 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;

   
   

2. However,
   there may be circumstances where, although the plaintiff bears the
   onus of proof, an admission on the pleadings creates
   a prima facie
   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;

   
   

3. 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
plaintiff’s 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.

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 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 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