Ex parte Minister of Justice: In re Rex v Bolon

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: De Wet CJ, Watermeyer JA, Tindall JA, Centlivres JA and Feetham JA
• Judgment Date: 02 May 1941
• Citation: 1941 AD 345
• Hearing Date: 17 April 1941

Tindall, J.A.:

The questions of law which have been submitted to this Court under sec. 388 of Act 31 of 1917, as amended, arise out of a judgment of the Transvaal Provincial Division upholding an appeal of B. Bolon against a conviction by a magistrate in a prosecution in which the accused was convicted on three counts of contravening sec. 20 (1) of Act 44 of 1937 by failing to comply with the provisions of a certain wage determination made under the said Act and by failing to pay certain employees the minimum amount due under the said determination. The questions submitted arise in connection with the onus of proof. Sec. 33 (8) of the Act enacts that when on such a charge under sec. 20 it is proved that the employee was employed by the accused during any period covered by the charge and that under such a determination the accused was required to pay to that person as minimum rate of remuneration a certain amount in respect of that period, "the accused shall be presumed, until the contrary is proved, not to have paid that amount to that person." For the purpose of explaining the practical application of the questions of law only the first count need be referred to in respect of which

Tindall, J.A.

the Crown proved that during the period alleged the accused employed the two employees mentioned in the charge on work to which the determination applied and that in terms thereof the accused was required to pay them the amounts respectively specified in the charge as a minimum rate of remuneration. In the circumstances the presumption in sub-sec. 33 (8) came into operation. The magistrate, in giving effect to the presumption, relied on the decision in Rex v Jacobson and Levy (1931 AD 466) kind held that sec. 33 (8) placed the onus on the accused to prove beyond a reasonable doubt that he had in fact paid the said employees at the said minimum rate of remuneration. After hearing the evidence (which included that of the two employees and the accused) the magistrate held that the accused had not discharged such onus. On appeal the Provincial Division (GRINDLEY-FERRIS, J.), applying a dictum of SCHREINER, J., in a previous case, Rex v Viviers (1939 TPD 402), held that under sec. 33 (8) of the said Act the accused could discharge the onus by proving by a preponderance of probabilities that he had made the required payments. On an examination of the evidence the Court considered that the probabilities were in favour of the accused f; evidence that he had made the required payments, and that therefore the accused had discharged the onus, and accordingly set aside the conviction.

The questions of law submitted for determination by this Court are stated in the following terms: -

"(1)

Assuming that it was duly proved that the persons referred to in the particular charge were employed by the accused during a period covered thereby, and that under the determination he was required to pay them as a minimum rate of remuneration a certain amount in respect of such period, and assuming further that the evidence in favour of the accused did not establish beyond reasonable doubt that he had in fact paid such amount to those employees, should the conviction on that charge, in view of the provisions of sec. 33 (8) of Act 44 of 1937, not have been confirmed?

"(2)

Assuming that it was duly proved that the persons referred to in that charge were employed by the accused during a period covered thereby and that under the determination he was required to pay them as a minimum rate of remuneration a certain amount in respect of such period, and assuming further

Tindall, J.A.

that the evidence in favour of the accused was either such as to show merely that the probabilities were that he had in fact paid such amounts to those employees or such as to show that the preponderance of probability was that this was so, would the presumption mentioned in sec. 33 (8) of Act 44 of 1937 have been sufficiently rebutted to entitle the accused to acquittal?"

Before attempting to answer those questions it is desirable, firstly, to consider the meaning of the expression "to prove beyond reasonable doubt" and "to prove by a preponderance of probability" and, secondly, to ascertain the true interpretation of the decision in Rex v Jacobson and Levy.

For many years it has been usual, in South African as well as in English and American courts, to say that a criminal charge must be proved beyond reasonable doubt but that in a civil case a preponderance of probability may constitute sufficient ground for a decision in favour of the plaintiff. (See Western Rand Estates Ltd. v New Zealand Insurance Co. Ltd. (1925 AD 245), Per KOTZÉ J.A., at p. 263; Cape Coast Exploration Ltd. v Scholtz (1933 AD 56 at p. 75), Rex v Blom (1939 AD 188, per WATERMEYER, J.A., at p. 205); Gates v Gates (1939 AD 150).) The said expressions are concerned with what Wigmore (Evidence, sec. 2497) calls the "degree of persuasion" which the Court requires to convince it. As the learned author points out, this persuasion or conviction in the mind of the Court may have more than one degree of positiveness in order to justify action in the shape of a verdict for the party on whom the burden rests. But the attempt to define these degrees of positiveness gives rise to great difficulties and many of the efforts of judges to give definitions of "proof beyond reasonable doubt" are (as WATERMEYER, J.A., pointed out in Gates v Gates) apt to lead to confusion. As an instance may be quoted Best's statement (Evidence, 10th ed., sec. 95) that the persuasion of guilt ought to amount to a moral certainty, a definition which, as an American Judge pointed out, adds the equal difficulty of determining what constitutes a "moral certainty".

The difficulty of defining proof beyond a reasonable doubt is illustrated by cases in which this Court is called on to decide whether in a trial on a criminal charge there was evidence on which the trial Court could properly find the charge proved. Judges of this Court have in some cases of this kind (of which

Tindall, J.A.

Rex v Tshabangu, 1934 AD 514, is an illustration) concurred in refusing to disturb a conviction while expressing the view that if they had tried the case they would not on the evidence have been satisfied beyond reasonable doubt. Such cases show that opinions may differ as to whether certain evidence constitutes proof beyond reasonable doubt.

But though the word "reasonable" in the expression "proof beyond reasonable doubt" is somewhat vague, there is force in the remarks of Stephen (History of Criminal Law, vol. 1, p. 436; General View of the Criminal Law, 183) that the rule is not worthless because it is vague and that its practical operation is that it is an emphatic caution against haste in coming to a conclusion against the prisoner. It is, as Best points out (sec. 95), because of the serious consequences of an erroneous condemnation both to the accused and society - the immeasurably greater evils which flow from it than from an erroneous acquittal - that the Court must have a higher degree of assurance to justify a verdict against an accused on a criminal charge than is required in arriving at a finding in a civil case. Considering the difficulty of expressing such a caution in precise language, the usual statement that, to justify a conviction, the evidence must be such as to exclude every reasonable doubt of the guilt of the accused seems to me to...