THE HIGH COURT OF SWAZILAND
CASE NO. 1419/96
the matter between
CONSULTING ENGINEERING PLAINTIFF
(PTY) LTD DEFENDANT
S.B. MAPHALALA - J
Plaintiff MR. FLYNN (Instructed
Millin & Currie)
Defendant MR. KADES SC
by Bheki G.
matter before me this morning is to determine who has the right to
begin leading evidence in this case. Mr. Flynn is of the view that at
this stage of the trial it is the defendant who bears the onus to
begin. In fortifying the view he took the court through number of
paragraphs in the Pleading, viz, paragraph 3 and 4 of the particulars
of claim at page 3 of the Book of Pleadings. Further that paragraph 5
is deemed to be admitted. The thrust of his arguments is that the
plaintiff is in the dark as to what the defendant's defence is in
this case. The defendant ought to lead evidence as the contract is
not denied and the remuneration has not been denied. The defendant
must set out the content of what that non performance is and lead
evidence. He referred me to the writings of Hoffman and Zeffert "The
South African Law of Evidence (4th ED) at page 582.
the other hand Mr. Kades is of the view that this is not so and that
Mr. Flynn seem to be perveting the law in that authorities are clear
that the onus is on the plaintiff to begin. To buttress his view he
referred me to Precedents of Pleadings at page 190, 191 and 192. In
sum the proposition advanced by Mr. Kades is that the plaintiff is to
begin to lead evidence. As the arguments are still fresh in our minds
I am not going to repeat them for the sake of time.
have looked at the issues before me carefully although I did not get
enough time to read some of the authorities cited. It appears to me
that Mr. Flynn is correct that there are two distinct concepts that
we are dealing with at this stage. The first being the overall onus
which is normally on the plaintiff and the onus to begin where a
litigant has made an averment which is not clear to the other side
the onus is on him to lead evidence.
the case of Pillay vs Krishna and another (reported in the case book
on evidence (University of South Africa) (unfortunately the title of
the book is in Afrikaans and the full citation is not included as
there is a page missing in the book). It was held as follows:
a defendant in his plea sets up a plea of payment of money, the onus
is upon him, and if he fails to satisfy the court that there is a
sufficiently strong balance of probabilities in his favour, judgement
must be given for the plaintiff.
the case in casu the defendant does not set out the content of what
the content of the non performance is. On the basis of the dicta in
Pillay (supra) and the exposition by Hoffman and Zeffert cited by Mr.
Flynn it is my considered view that the defendant is to begin.