Nelson v Marich

• Jurisdiction: South Africa

Nelson v Marich
1952 (1) SA 65 (T)

1952 (1) SA p65

Citation	1952 (1) SA 65 (T)
Court	Transvaal Provincial Division
Judge	Blackwell J, and De Wet J
Heard	November 2, 1951
Judgment	November 13, 1951

Flynote : Sleutelwoorde H

Bills of Exchange — Action on — Defence of duress. — Onus on defendant to displace upon balance of probability the presumption in favour of plaintiff.

Headnote : Kopnota

When in an action upon a bill of exchange the defendant pleads that he signed the document under duress the onus rests upon him to displace upon a balance of probability the presumption which arises in favour of the plaintiff.

1952 (1) SA p66

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

E. Sachs, for the appellant: The magistrate clearly relied upon the literal meaning of the view expressed by STRATFORD, C.J., in Estate A Weiner v Weisholtz, 1939 AD 95. It is submitted that this expression of opinion was obiter, see Flower v Ebbw Vale Steel, Iron and Coal Co., Ltd., 1934 (2) K.B. 132 at p. 154; Arter v Burt, 1922 AD 303; Brooks v Lyric Theatre, 1946 T.P.D. 398. The onus is on the defendant, Ismail v Khan, 1946 (2) P.H. A. 92; Adib El Hinnawi v Yacoub Fahmi Abu El B Huda El Faruql, 1936 (1) A.E.R. 638; Pillay's case, 1946 AD 946; Siffman v Kriel, 1909 T.S. 538. It is inconceivable that a defendant could tell a story palpably improbable and compel a court to hold that, because it is mere evidence adverse to the presumption, he could, in the absence of evidence by the plaintiff, be entitled to succeed in the face C of his own incredible evidence. It is to be noted that sec. 28 (2) of the Bills of Exchange Proclamation uses the words 'admitted or proved', not 'admitted or alleged'. Cf. sec. 11 of Act 37 of 1926, which was interpreted in Emdin v Gluckman and Gluckman, 1946 W.L.D. 340. It is submitted that the magistrate's decision was based on the approach that D the word 'proved' meant 'alleged'. If the legislature intended the mere allegation by the defendant to be adequate, it put a signatory of a bill of exchange in a better position than a defendant in any other type of case because in the latter, if the defendant wished to prove that he E signed a document under duress, he would have to prove that on a balance of probabilities. There was no need for the plaintiff to give evidence because in terms of sec. 28 (2) of the Proclamation he need only do so when the defendant had proved the illegality. In any event, defendant does not dispute that plaintiff gave value without any knowledge of the alleged duress.

C. S. Margo, for the respondent: As to the inference to be drawn from the fact that the plaintiff was in court and available as a witness, but was not called, see Galante v Dickinson, 1950 (2) SA 460; Thomson v Thomson, 1949 (1) SA 445. F

Sachs, in reply.

Cur. adv. vult. G

Postea (November 13th).

Judgment

H Blackwell, J.:

This is an appeal from a judgment of the magistrate of Springs. Plaintiff, a dairyman and racehorse owner of Klipriversberg, sued defendant for £200, the amount of a dishonoured cheque dated December 8th, 1950, claiming to be the holder thereof. It was admitted that the plaintiff was the holder and that the defendant had signed the cheque, but defendant pleaded that he did so under duress. There was a further alternative plea that the cheque was in respect of a racing tip, and the

1952 (1) SA p67

Blackwell J

contract, therefore, unenforceable as being against public policy, but this fell away and need not now be considered. The magistrate gave judgment for the defendant with costs, and this Court is under a considerable debt to him for his admirably framed reasons for judgment.

A Defendant's story presents some remarkable features. He is a Jugo-slav whose knowledge of English is imperfect and he carries on a dry-cleaning business in Springs as Tip-Top Dry Cleaners (Pty.) Limited. It appears also that he is interested in horse racing. His story is that between eleven and twelve on the morning of Friday, December 8th, two unknown B Europeans entered his office, locked the door, offered to give him a racing tip for the next day's meeting, took 'batons' out of their pockets, and under threat of violence forced him to sign a cheque for £200. He rushed out after them, and saw their car pulling off along the road. He made no complaint to the police but stopped the cheque with his C bank at 2.15 p.m. that same day. The date on the cheque looks as if it had been altered to read December 9th, and it is impossible to say what the original date was. The alteration was supported by defendant's signature. The cheque was presented next day, December 9th, for payment and dishonoured.

D One of the two intruders apparently was a...