African Eagle Life Assurance Co Ltd v Cainer

• Jurisdiction: South Africa
• Judge: Coetzee J
• Judgment Date: 20 September 1979
• Citation: 1980 (2) SA 234 (W)
• Court: Witwatersrand Local Division

African Eagle Life Assurance Co Ltd v Cainer
1980 (2) SA 234 (W)

1980 (2) SA p234

Citation	1980 (2) SA 234 (W)
Court	Witwatersrand Local Division
Judge	Coetzee J
Heard	September 15, 1979; September 16, 1979; September 17, 1979; September 18, 1979; September 19, 1979
Judgment	September 20, 1979

Flynote : Sleutelwoorde

Practice — Trial — Onus of proof — When discharged — Requirement that G Court has to be satisfied that evidence of party upon whom onus rests is true and the other false — Such approach only applicable in cases where there are no probabilities one way or the other.

Evidence — Onus of proof — When discharged — Requirement that Court has to be satisfied that evidence of party upon whom onus rests is true and H the other false — Such approach only applicable in cases where there are no probabilities one way or the other.

Headnote : Kopnota

The approach laid down in National Employers Mutual General Insurance Association v Gany 1931 AD 187, namely: 'Where there are two stories mutually destructive, before the onus is discharged the Court must be satisfied that the story of the litigant upon whom the onus rests is true and the other false', which was applied in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse Spoorweë en Hawens 1974 (4) SA 420 (W), only applies in cases where there are no probabilities one way or the other. Where there are probabilities, inherent or otherwise, there is no room for this approach.

1980 (2) SA p235

Case Information

Civil trial. Facts not material to this report have been omitted from the reasons for judgment.

G Bizos for the plaintiff.

A B Gordon for the defendant. A

Cur adv vult.

Postea (September 20).

Judgment

Coetzee J:

The plaintiff has sued the defendant for payment of the sum of R6 512,30, an amount which is said to be due and payable as moneys advanced to the defendant as the result of a contract of employment of the defendant by the plaintiff in March 1977.

According to the plaintiff's declaration the parties entered into an oral C agreement in February 1977 on terms fully set out in a standard letter of appointment which is annexed to the pleadings as annexures X1 and X2. The term regarding payment by plaintiff to the defendant is alleged to be that the defendant, who was appointed as one of the plaintiff's district managers, would be remunerated by the payment to him of a commission on D insurance policies produced by those representatives under his control on what is termed an overriding basis, meaning that he would get a certain percentage of the aggregate of commissions earned by the insurance representatives under his control. It is also alleged that it was agreed that advances would be made to him, and that the commissions actually earned by him would eventually, in prescribed fashion, be credited to this E account and so reduce, or extinguish, the liability to the plaintiff for the amounts so advanced. The total sum so advanced to the defendant was R9 963,66 and the defendant actually earned, pursuant to the agreement, commissions aggregating R3 451,36. It is alleged that the contract terminated on 30 September 1977, and that after deduction of the total F amount earned by way of commissions the sum of R6 512,30, being the balance, then remained due and owing by the defendant.

The defendant pleaded a defence which raised a sharp conflict of fact. According to the defendant - and I am quoting from the first paragraph of his plea - he was employed by the plaintiff, who was represented by one Eric Douglas Henry, one of its area managers in Johannesburg, to recruit, G train and motivate...