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[2024] ZALMPPHC 52
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Kenosima Trading & Projects (Pty) Ltd and Another v Baswara Trading (HCA41/2023) [2024] ZALMPPHC 52 (20 May 2024)
REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION
,
POLOKWANE
CASE
NO: HCA41/2023
REPORTABLE:
YES/NO
OF
INTEREST TO THE JUDGES:YES/NO
REVISED
DATE:
20 May 2024
I
n
t
h
e
m
att
e
r
betw
ee
n
:
KENOSIMA
TRADING & PROJECTS (Pty) Ltd
: FIRST APPELLANT
SIMANE
EPHRAIM KENOSHI
: SECOND APPELLANT
A
n
d
BASWARA
TRAD
I
NG
: RESPONDENT
JUDGMENT
Heard
on
08 MARCH
2024
.
The date
and
time
for
hand-down
is
deemed
to
be
on the
20 MAY 2024 at
10:00.
This
judgment handed down electronically
by circulation to the
parties' representatives by email and publication and release
to
SAFLII.
DEANE
AJ:
Introduction
[1]
This is an appeal
against the whole judgment
and
order of the magistrate made on 26 June 2023. The written
judgment
was made
available to the
parties on or about 10 July 2023, wherein the magistrate found in
favour of the Respondent
(Plaintiff in the
court
a
quo)
in
terms of a breach of a verbal agreement,
wherein it
was ordered as
follows:
(1)
The 1
ST
and
2
ND
defendants
are ordered to pay an amount of R119 606, 00 jointly and severally,
the one paying the other to be absolved.
(2)
Interest on the
capital amount at the rate of 10,25% per annum calculated from 2nd
August 2018 to date of final payment.
(3)
Costs of suit.
[2]
The grounds of appeal
succinctly
stated
are that the magistrate erred in the following respects:
(1)
The granting of a
judgment against both Appellants jointly and severally.
(2)
Finding that the
Respondent had proved, without the necessary information/evidence,
that the services were rendered by the Respondent
and ordering the
Appellants to pay for the rendering of services without proof
thereof.
(3)
Ordering
the
Appellants
to pay
an
amount
of
R119 606.00
which
amount
is inclusive of VAT,
without any evidence before the court that the Respondent was
entitled to claim VAT.
(4)
That the Respondent
had discharged its burden of proving
that
services were
rendered
.
[3]
The
First
and Second Appellants
(Appellants)
seek an order
that the appeal be upheld with
costs
and that the
order by the court a
quo
be set
aside and
that
they be
granted absolution from the instance.
Background
[4]
On
or about 30
th
May
2017 a verbal agreement
was
entered into by the First Appellant and the Respondent,
[1]
both
legal personas
.
The
Plaintiff was represented by one Maboko Shilajoe (Shilajoe), the sole
Director of the Respondent and the First Appellant was
represented by
the Second Appellant as its manager.
[2]
[5]
The First Appellant
was contracted by the Modimolle-Mookgophong Municipality
(the
Municipality)
to supply the Modimolle community with water. Since the Respondent
did not have enough tankers,
the
agreement was
that:
(a)
The First Appellant
will hire a ten thousand litre (10 000L) water tanker (the
tanker) to enable
the
First
Appellant
to carry
out
its
contract
between it
and
the Municipality;
(b)
The First
Appellant
is
to
pay
one
thousand
eight
hundred
rands
(R1800.00)
per
day for same
.
If the tanker
was not used, it was not to be paid;
(c)
The Respondent
was
to
invoice the
First Appellant
;
(
d)
The Respondent
provided the water
tanker
;
(e)
The Respondent
rendered
invoices as agreed
and the First Appellant
made
some payments
;
(f)
One such payment
was
done on or about
2
ND
July
2018
wherein
payment
in
terms
of
an
invoice
rendered
by the Plaintiff
to the
amount
of R119 606 was duly
paid.
The
Evidence
[6]
The Respondent called
one witness, Shilajoe, who testified that:
(i)
He
represented the Respondent
as
its sole director, whilst the First Appellant was represented by the
Second Appellant as its manager
.
[3]
(ii)
According
to the agreement,
and his understanding
thereof,
he was to invoice the
First Appellant, as the parties to the agreement were legal personas.
(iii)
He
had on previous
occasions
invoiced
the First
Appellant
for other
services and they
were paid.
(iv)
The Respondent
provided the water
tank truck and rendered
invoices
which were paid by
the
First
Appellant.
(v)
However,
the
invoice
dated
2
July
2018
for
R119 606.00
to
be
paid
on
2 August 2018 was
never paid.
(vi)
Around
July 2018,
and on behalf
of the Respondent,
he sent
invoices to the
Second Appellant, who was representing the First Appellant
(vii)
Despite
demanding
on
numerous
occasions,
through
verbal
demands
and through
emails
and
WhatsApp
messages
to
the
Appellants
requesting
that the amount
claimed be paid, it was not paid.
(viii)
He continued
reminding
the Second Appellant
of the amount
outstanding
on
behalf
of
the
First
Appellant
but
was
told
by
the
Second
Appellant
that
the Municipality had
not yet paid the First Appellant.
(ix)
He
was
in
constant
contact
with
the
Second
Appellant
and
at
all times
the Second Appellant
did not dispute the amount due tb the Respondent.
(x)
He constantly
reminded
the Second Appellant
about payment until
the Second Respondent told him that he will not pay because he was
being pestered and nagged.
(xi)
After
realising
that
the
Second
Appellant
had
no
intention
of
settling
the invoice,
he
gave
his
attorney
all
WhatsApp
and
email
communications
between
himself
and
the
Appellants
,
the
municipality
records
proving
the services and to
prove the amount owed.
[7]
During
cross examination, the Appellants representative did not dispute the
amount owed
,
but
disputed that the agreement was between the Respondent and the First
Appellant.
[4]
[8]
The WhatsApp
communications and emails were not disputed
,
however there
was a demand made that it should have been annexed to the Summons.
[9]
The witness was
willing to submit any document deemed necessary.
[10]
When the witness was
further questioned
on
whether the Second Appellant
had
asked him to invoice the First Appellant because the Second Appellant
was not registered, this was refuted by Shilajoe
,
the witness
.
[11]
Upon further cross-examination Shilajoe refuted the allegations that
the agreement was between him as the director of the Respondent
and
the Second Appellant because the party that had a contract with the
municipality was the First Appellant.
[12]
Furthermore
,
Shilajoe
testified
that he understood
that the Respondent
would be paid from
the proceeds of the tender granted to the First Appellant.
[13]
Shilajoe further
stated
that
when he had
invoiced
the
First Appellant on the first paid invoices the Second Appellant
did not object to the
invoices
.
[14]
Shilajoe reiterated
that the services were rendered
,
that the
records
from
the Municipality serves as proof thereof and that the Municipality
officials were also monitoring the services
rendered
through the
tanker
.
[15]
He
testified further that the Second Appellant, until the day that he
was giving his evidence, on 24 March 2023,
[5]
never previously queried that the service was not rendered. Shilajoe
went on to state that the only reason payment was not made
on behalf
of
the First Appellant, by the Second
Appellant,
was
because Shilajoe became a nuisance and was pestering or annoying the
Second Appellant by making follow up requests for payment.
[6]
[16]
The Respondent after
calling their one witness closed their case.
[17]
The Applicants
thereafter
applied
for absolution from the instance and such a
request was dismissed
by the magistrate. The magistrate indicated in his judgment that
reasons for the dismissal thereof was given
to all parties.
[18]
Thereafter, both the
First and Second Appellants did not testify or call witnesses and
closed their case without leading evidence
The
Law
Regarding
absolution from the instance
[19]
As indicated above,
the
relief
in
prayer 1 of the notice of motion is sought in terms of Rule 39(6) of
the Rules which reads as follows:
"At
the
close of the case for the plaintiff, the defendant
may apply for
absolution from the instance,
in which case the
defendant
or
one advocate on his behalf
may address the
court and the plaintiff or one advocate on his behalf may reply. The
defendant or his advocate may thereupon reply
on any matter arising
out of the address of the plaintiff or his advocate."
[20]
The test to apply in
considering an application for absolution is not that the evidence
led by the plaintiff established a case
that would be sustained if
the case was to proceed to its final conclusion. The essential
inquiry in determining whether to grant
absolution from the instance
is whether there is evidence upon which a court, when applying its
mind reasonably
,
could or might
find for the plaintiff. In other words, a court would not grant
absolution from the instance
in
a case where the plaintiff
has,
at the end of his or her case, presented an answerable case or
prima
facie
case.
[21]
Furthermore, the
test
,
as
stated in Supreme
Service
Station (1969) (Pvt) Ltd v Fox and Goodridge
(Pvt) Ltd,
is
not
"what
ought a
reasonable
court to do" at
the close of the defendant's case. Thus, the threshold required by
the law, which the plaintiff has to satisfy
in opposing an
application
for
absolution from the instance at the close of his or her case, is very
low.
[22]
In
Claude
Neon Lights (SA) Ltd v Daniel
,
the
test for absolution was further articulated as follows:
"
(W)hen
absolution
from the instance
is sought
at
the close
of plaintiff's
case,
the test to be
applied is not whether the evidence led by plaintiff establishes what
would finally be required to be established,
but whether there is
evidence upon which
a
Court,
applying its mind reasonably to such evidence
,
could
or might
(not
should,
nor ought
to)
find
for
the plaintiff.
(Gascoyne
v Paul and
Hunter
1917 T.P.D
170
at 173;
Ruto Flour Mills (Pty) Ltd v Adelson
(2)
1958 (4) SA
307
(T)).,,
Regarding
the onus of proof
[23]
The
standard of proof in a civil case is the well-known preponderance
(balance) of probabilities. This requires of the party on
whom the
onus lies,
in
order
to be successful, to satisfy the court that he is entitled to succeed
on his claim or defence
,
as
the case may be.
[7]
The onus of
establishing a case
in
accordance
with this standard is on the party who makes the assertion since if a
person claims something
from
another in a court of law, he has to satisfy the court that he is
entitled to it.
[8]
In
Pillay
v Krishna and Another
it
was described as follows:
[9]
"
The
only correct use of the word 'onus' is that which I believe to be its
true and original sense (cf D 31
.
22)
,
namely
,
the
duty which is cast on the particular litigant
,
in
order to be successful
,
of
finally satisfying the court that he is entitled to succeed on his
claim, or defence
,
as the
case may be
"
[24]
In
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
[10]
Corbett
JA (as he then was) explained the distinction between the burden of
proof properly so called and the evidential burden as
follows
:
"As
was pointed out by
Davis
AJA in
Pi/lay
v
Krishna
and
Another
1946
AD
at
952
-
3,
the word onus has often been used to denote, inter alia two distinct
concepts:
(i)
the duty which is cast on the particular litigant
,
in
order to be successful
,
of
finally satisfying
court
that he is entitled
to
succeed
on
his claim or defence,
as
the case may be
;
and
(ii) the duty cast upon
a
litigant to
adduce evidence in order to combat
a
prima facie
case made by his opponent. Only the first of these concepts
represents the onus in its true and original sense
.
In
Brand v
Minister
of Justice and Another
1959 (4) SA 712
(A) at 715 Ogilvie-Thompson JA
called it
'
the
overall onus
'
.
In this sense the onus can never shift from the party upon whom it
originally rested
.
The
second concept may be termed
,
in
order to avoid confusion, the burden of adducing evidence in rebuttal
('weerleggingslas’)
.
This
may shift
,
or be
transferred
in
the course of the case
,
depending
upon the measure of proof furnished
by the one party
or the other.
"
[25]
If
the party on whom the onus lies is the plaintiff
,
as
is often the case
,
this
onus is discharged by leading evidence since if no evidence is led at
all, the plaintiff must fail because he would not have
proved the
cause of action
.
Similarly,
if
evidence
is led but the court cannot decide whether the cause of action has
been established
or
not
,
the
plaintiff again must fail because one of the facts essential to the
cause of action would remain unproved
.
[11]
The
question is whether at the close of the plaintiff's case there is
sufficient evidence in support of the claim
,
by
which is meant no more than that on the whole the evidence tends to
show a greater probability that the facts as alleged
by
the plaintiff
are
correct,
than
the
contrary.
[12]
If
at
the conclusion
of
the case the evidence is evenly balanced
,
the
plaintiff cannot succeed in his claim as he would not have discharged
the onus resting upon him.
[13]
Analysis
[26]
The
Appellants case is that the oral agreement was entered into by and
between the Respondent
and
the Second Appellant
in
his personal capac
i
ty
,
[14]
and
that
"
despite
no evidence that an agreement was entered into between the Respondent
and both Appellants, and that the Respondent stated
the agreement was
with the First Appellant
,
the
court proceeded to grant judgment against both the First and Second
Appellants
,
jointly
and severally".
[15]
[27]
The
Appellants
further
argued that the court
a
quo
misdirected
itself
when it found that the
"
Respondent
proved
,
on
a balance of probabilities
,
that
"
services
"
were
rendered to the Respondent, which the Appellants must pay
"
[16]
and
that
"the
undisputed evidence is that no invoice was ever sent to either the
first or second appellant" and that they do not
know how the
amount of R1
1
9
606
.
00
was calculated
.
[17]
Furthermore
that there was no evidence that the Respondent was entitled to
claim
VAT on the said amount and that Respondent failed to discharge its
burden of proving that services were rendered
.
[18]
[28]
Having
regards to the
dicta
that
the burden of proof in an action will not necessarily fall on the one
party alone
,
but
each of the parties may bear a burden of proof
i
n
relation to different issues, in
Pillay
v Krishna
the
general approach was explained as follows
:
[19]
"
If
one person claims
something
from another
in
a
Court of Jaw
,
then he
has to satisfy the Court that he is entitled to it. But there is
a
second
principle wh
i
ch
must always be read with it: Where the pe
r
son
against whom the claim is made is not content with
a
mere denial
of the claim
,
but
sets up
a
special
defence
,
then he
is regarded quoad that defence
,
as
being the claimant: for his defence to be upheld he must satisfy the
Court that he is entitled to succeed on it
..
.
But there
is
a
third
rule
,
which
Voet
states
...
as follows
:
'
He who
asserts
,
proves and not he
who denies
,
since
a
denial of
a
fact cannot
naturally be
proved provided that it is fact that is denied and that the denial is
absolute
'.
The
onus is on the person who alleges something and not on his opponent
who merely denies it
."
[29]
The
court
in
Pillay
v
Krishna
went
on
to
state
that:
1.
The resolution of a
c
i
vil
d
i
spute
such as the present one turns on the probabilities of the competing
versions
,
coupled with
the ev
i
dence
presented befo
r
e
t
his
Court by both parties.
2.
The
Plaintiff was a single witness regarding the events that occurred on
the day in question
.
However
,
t
his
does not necessarily
entai
l
that
the Plaintiff
i
s
automatically in a disadvantaged posit
i
on
.
His
evidence still needs to be considered holistically to arrive at an
objective
conclusion
.
The
Court
,
in
in
S
v
Saulus
and
Others
,
[20]
correctly
found
that:
"
[t}here
is
no
rule
of
thumb
test
or
formular
to
apply
when
it
comes
to
a
consideration
of the credibility
of the single
witness
.
The
trial judge will
w
eigh
his
evidence, will consider its merits and demerits and
,
having
done so
,
will
decide whether it is trustworthy and whether, despite the fact that
there are shortcomings or defects or contradictions in
the testimony
,
he is
satisfied that the truth has been told
.
. ."
[30]
It is clear that where there is evidence presented by one party that
calls for an answer, and the other party chooses not to
lead
evidence, in the face of such evidence, a court may well be entitled
to conclude that the evidence is sufficient in the absence
of an
explanation to prove otherwise. Whether such a conclusion is
justified will depend on the weight of the evidence presented.
[31]
In
casu,
the
magistrate was faced with the following uncontested evidence. It was
testified to by Shilajoe, on behalf of the Respondent that
the Second
Appellant represented the First Appellant when entering into an oral
agreement with the Respondent.
[21]
In
this respect
,
the
magistrate found that the Appellants did not have any problems to
plead to the Respondent's
summons
.
[22]
Annexure
A,
[23]
which
was
the only document annexed to the summons, is the invoice statement
comprising of two invoices amounting to R761 36
.
00
and R 434 70
.
00
respectively and which amounts to R119 606.00.
[24]
[32]
The magistrate found the evidence of Shilajoe to be very clear and
not contradictory. Looking at the record
,
his evidence
withstood cross-examination and the magistrate correctly concluded
that the Second Appellant at all times represented
the First
Appellant.
[33]
Shilajoe further gave
viva
voce
evidence
in respect of the oral agreement, the terms thereof and what had
transpired between the parties.
[25]
[34]
In support thereof he provided evidence of WhatsApp communications
that were exchanged
between
the parties, invoices
that
were e-mailed
to
both Appellants
,
[26]
and
he testified to telephonic communications about the amounts owed and
claimed
.
[27]
[35]
Additionally
,
evidence was
given by Shilajoe that there were records, the ledger was obtained
,
and those
documents
were
given to the attorneys to show how many times the tanker was used and
how much money was to be paid
.
[36]
Furthermore,
the
use of the tanker
was
monitored
by
the Municipality
officials
.
Dur
i
ng
the te
l
ephone
conversations
,
especially
those demandi
n
g
payment the services were not denied or ever disputed.
[37]
It
was further testified to that the invoices were not, not paid because
the services were not rendered bu
t
it
was not paid due to the witness
,
Shilajoe
,
becoming
an annoyance to the Second Appellant.
[28]
[38]
Following
this evidence on
behalf of the Respondent
,
there was
nothing preventing the Appellants from dispelling or leading evidence
to the contrary at the hearing before the magistrate
.
They
,
however,
chose not to do so
.
[39]
On
the papers before me
,
the
Appellants
argue
that regarding
the
i
nvo
i
ces
,
emails
with invoices sent to the Appellants
,
the
documents
at
the Municipality and WhatsApp messages
,
[29]
"
the
fact that the Defendants didn't deny the existence of these documents
does not mean or prove their existence" and that
"
to
be regarded and
considered
by
Court
,
t
hese
evidence
should
have
been produced
in
court. There is no onus on the defendants"
.
[30]
[40]
I
now
turn to whether
the
Respondent,
Plaintiff
in
the court
a
quo
,
had
on a balance of probabilities discharged the onus of proof that rests
with them
.
The
question of whether
the
onus
has
been
discharged
was
dealt
in
Selamolele
v
Makhado
[31]
,
where
the court confirmed what the approach to follow is
:
"Ultimately
the question
is whether the
onus on the party
,
who
asserts
a
state of facts,
has been discharged on
a
balance of
probabilities and this depends not on
a
mechanical
quantitative balancing out of the pans of the scale of probabilities
but
,
firstly
,
on
a
qualitative
assessment of the truth and/or inherent probabilities of the evidence
of the witnesses
and
,
secondly
,
an
ascertainment
of
which of two versions is the more probable
."
[41]
Further
,
in
Maitland
and
Kensington
Bus
Co (Pty) Ltd v Jenningswhere
[32]
Davis
J
said:
"
For
judgement to be given for the plaintiff the Court must be satisfied
that sufficient reliance can be placed on his story for
there to
exist a strong probability that his version is the true one
.”
[33]
[42]
It
is clear from the
legal principles stated above that when a party adduces evidence in
support
of
their case
,
that
a mere denial of the
evidence
is
not sufficient to disprove the evidence of a
prima
facie
case.
[43]
The evidence
led shows
that the
Second Appellant
at all times
acted within his
scope of employment
and
created the impression
that
he has the necessary autho
r
ity
to act on behalf of the First Appellant.
[44]
This is because it is
clear that the Second Appellant was actively involved from the very
beginning of the agreement
when
he represented the First Appellant during the oral agreement with the
Respondent and in taking the decision not to pay the
Respondent.
[45]
When the Respondent
sent the invoices,
they were sent to the Second Appellant
,
and it was the
Second Appellant that informed Shilajoe that he is not going to pay
the Respondent because Shilajoe was pestering
him
.
[46]
The Second Appellant
took decisions for the First Appellant and the Respondent was
therefore indeed correct in citing both Appellants
.
[47]
Based on the evidence
before him
,
the magistrate
was faced with one tested version which in his considered reasoning
withstood cross-examination
.
Having regard
to the record, I am in agreement.
[48]
Consequently
,
faced with
this
,
on
a balance of probabilities the court a
quo
was also
correct in finding that the Appellants should be held jointly and
severally liable.
[49]
On a balance of
probabilities, the court a
quo
was also
correct in finding that the Respondent rendered services and that the
Respondent was therefore entitled to be paid
.
[50]
Looking at the
evidence before the court a
quo,
it was not
in dispute that the First Appellant was awarded a tender by the
Municipality
.
It is further
not disputed that the First Appellant needed water tankers for it to
be able to deliver water or that the Respondent
provided
a water tanker to the
First Appellant and that the First Appellant did indeed pay some
invoices, but not all
.
[51]
The Appellants are
however disputing the two invoices
.
[52]
The evidence of
Shilajoe is that a document which is attached to the Respondent's
Particulars of Claim and marked as Annexure A
was sent to the First
Appellant.
[53]
Evidence
was also further
led by Shilajoe to
the effect that after the document was sent to the First Appellant
both the Appellants never disputed it, the
amount or that the
services were rendered.
[54]
The
Annexure
A
of the Particulars
of
Claim was sent to the Appellants
like
the previous invoices and that were paid
.
[34]
[55]
The said document is
under the letterhead of the Respondent,
it is directed to the
First Appellant, and it indicated what services were rendered
.
[56]
I was directed by the
Respondent to the definition of an invoice in ter
m
s
of the Oxford Dictionary and by Longman Dictionary of Contemporary
Engl
i
sh
wh
i
ch
defines
"
invoice
"
as a list if
goods that have been sold
,
work has been
done
,
showing
what must be paid. Indeed, the Annexure A includes these
,
and
I
t
can be seen as a request for payment which inc
l
udes
payment details so that the Appellants can pay the Respondent.
[57]
After
r
eceiving
this the Appellants undertook to settle the amoun
t.
The delay in
payment thereof was only occasioned because the First Appellant had
not yet been paid by the Modomolle Mun
i
cipality
.
[58]
Accordingly
,
the court a
quo
was
correct in finding that the Respondent
had proved on a
balance of probabilit
i
es
that services were rendered
.
[59]
The Appellants
furthe
r
allege
that the court a
quo
misd
ir
ected
itself in ordering the Appellants to pay an amount of R119 606
.
00
which amount is inc
l
usive
of value
added tax (VAT).
[60]
It is not disputed that VAT can only be charged by a person who is
VAT registered.
[61]
The
evidence
was
that
the
Respondent
is
VAT reg
i
stered
and further
that
a person
who
is not registered cannot charge VAT.
[35]
[62]
In casu
and
based on the evidence that is before the court, the court a
quo
was
correct in ordering that the Appellants pay an amount of R119 606.00
which in VAT inclusive.
[63]
Furthermore, after
the Respondent closed its case the Appellants applied for absolution
from the instance, but such application
was dismissed by the court a
quo.
[64]
Looking at the
authorities
cited
above regarding absolution
from
the instance,
there
is evidence upon which a
Court,
applying its mind reasonably
to
such evidence, could
or
might
(not
should,
nor
ought
to) find for the
plaintiff
.
Absolution
was correctly not
granted in these circumstances.
[65]
Accordingly, when the
Appellants then chose not to place specific facts before the court,
they ran the risk of their opponent's
version being found to be more
probable.
[66]
In casu,
it
is
common
cause that the First Appellant was awarded a
tender
to provide
water to the Municipality,
and
that the Respondent
did
provide the First Appellant with a water tanker and were previously
paid for
its
services.
[67]
The Respondent's
witness testified that services were rendered, that invoices were
sent to the First Appellant and that the Second
Appellant on numerous
occasions promised
that
payment
will
be made as soon as
the
First
Appellant
received
payment from the Municipality.
[68]
This evidence was not
rebutted and it is clear that a
prima
facie
case
was made out by the Respondent. The evidence adduced before the court
a
quo
was
therefore correctly found to be favouring the Respondent.
[69]
In all of the above, I find
that the court a
quo,
correctly
found in favour of the Respondent.
[70]
There
is
no
basis on which
to
find
that
the costs
of
the appeal
should
not
follow
the
results
.
[36]
ORDER
(a)
The appeal is
dismissed with costs
T. DEANE
ACTING JUDGE OF THE
HIGH
COURT
POLOKWANE; LIMPOPO DIVISION
I
agree, and it
is
so ordered
.
M. NAUDE-ODENDAAL
JUDGE OF THE HIGH
COURT
POLOKWANE; LIMPOPO
DIVISION
APPEARANCES
For
the appellants
:
Adv
.
C
.
Marais
Instructed
by
:
Jaco de
Villiers Attorneys
For
the respondant: Mr N.C Malumbete
Instructed
by
:
Malumbete &
Makhubele Attorneys Inc.
[1]
Record
of Proceedings p 20, 1
st
and
2
nd
Defendant's
Plea, p 19.
[2]
Record
of Proceedings, p 22.
[3]
Record
of the Proceedings, p 21, 23.
[4]
Index:
Volume 2/2 Court a quo bundle, pp 43 – 44.
[5]
Index:
Volume ½ Appeal Bundle, p 46.
[6]
Index:
Volume ½ Appeal Bundle, p 38.
[7]
Pillay
v Krishna
1946
AD 946
at 952-953.
[8]
Pillay
v Krishna
at
951; and
Van
Wyk v Lewis
1924
AD 438 444.
[9]
Pillay
v Krishna
at
952-3.
[10]
1977
(3) SA 534
(A) at 548.
[11]
Pillay
v Krishna
at
955.
[12]
Naude
NO v Transvaal Boot and Shoe Manufacturing Co
1938
AD 379 397.
[13]
Van
Wyk v Lewis
at
444.
[14]
Appellants
Heads of Arguments: In re: Appeal p. 6.
[15]
Appellants
Heads of Arguments: In re: Appeals p. 6.
[16]
Appellants
Heads of Arguments: In re Appeals p. 8.
[17]
Appellants
Heads of Arguments: In re Appeals p. 7.
[18]
Appellants
Heads of Arguments: In re Appeals p. 8.
[19]
Pillay
v Krishna
at
946; 951 – 3.
[20]
1981
(3) SA 172
(A) at l80E-G.
[21]
Index:
Volume ½ Appeal Bundle, pp 25; 32
[22]
Index:
Volume ½ Appeal Bundle, p13.
[23]
Index:
Volume 2/2 Court
a
quo
bundle,
p 110.
[24]
Index:
Volume 2/2 Court
a
quo
bundle,
p39.
[25]
Index:
Volume 1/2 Appeal Bundle, pp 23-25.
[26]
Index:
Volume l/2 Appeal Bundle, pp 37-41.
[27]
Index:
Volume 1/2 Appeal Bundle, pp 37-41.
[28]
Index:
Volume 1/2 Appeal Bundle, p 38.
[29]
Index:
Volume 2/2 Court
a
quo
bundle,
p 131.
[30]
Index:
Volume 2/2 Court
a
quo
bundle,
p 131.
[31]
1988
(2) SA 372
(V) at 374J-375B.
[32]
1940
CPD 489
at 492.
[33]
It
was further stated in
Ocean
Accident and Guarantee Corporation Ltd J v Koch
1963
(4) SA 147
(A), at 157D that the evidence present by the burdened
party must be such that the court can say that
"{w]e
think it is more probable than not"
for
the burden to be discharged. However, if the probabilities [in
relation to the evidence of all the parties] are equal, then
the
burden has not been discharged by the burdened party.
[34]
Index
Vol 2/2 p 110.
[35]
Index
Vol ½ p 70.
[36]
Neuhoff
v YorK Timbers Ltd
1981
(1) SA 666(T).