Pillay v Krishna and Another

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 06 December 1946
• Hearing Date: 08 October 1946
• Court: Appellate Division

Davis, A.J.A:

The plaintiff sued the defendants in the magistrates' court, Durban, for the gum of £180 on a promissory note, the material part of which reads as follows: - "10th August, 1943. On the -- day of On Demand I promise to pay Mr. T. R. Pillay or order at Stall 91-2, Indian Market, Durban, Natal, the

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sum of one hundred and eighty pounds only for value received." The note purported to be signed by the defendants. The summons further set forth that the note had been duly presented for payment and dishonoured. In response to a request for further particulars, the plaintiff stated that the note was given for money lent and advanced. The plea set out that "in or about February, 1943, plaintiff got up what is called a selling lottery, with a syndicate of 24 members, including himself, each member being bound to contribute £10 a month for 24 months First defendant was one of the members." The plea went on to allege that the plaintiff, as promoter, took the first month's contribution of £240, that the subsequent monthly contributions were auctioned and that no member was allowed to buy more than one monthly pool, the price paid for the pool being distributed among the 24 members. "The successful bidder had to sign a promissory note in favour of plaintiff for the remaining monthly contributions as security for the due payment by him thereof and had to obtain another signature as additional security". The first defendant, according to the plea, shared his contribution with three other persons, one of whom was the second defendant, each contributing £2 10s. 0d. a month; on 10th August the first defendant was the successful bidder, and the pool of £240 was knocked down to him for £65. "On the 11th August, 1943, first defendant got the pool of £240, less the £65, that is £175, and signed the promissory note now sued on as security for the due payment by him of the remaining monthly instalments. He obtained as another signature that of the second defendant. Both defendants signed at the Imperial Hotel, Durban. Thereafter the note was handed to plaintiff by first defendant." Thereafter, the plea continued, the first defendant's monthly contributions were duly paid and he received his share of the monthly auction price. Defendants admitted the demand for £180 but said it was unlawful, as the first defendant was up to date with his monthly contributions. The defendants denied that any loan had been made to them. In a subsequent claim in reconvention they paid into court the sum of £10, the last monthly contribution, which, they said, was all that remained unpaid, and claimed the return of the promissory note.

Though reference was heron made to a lottery, and though, at the end of the plea, it was pleaded that this lottery was against public policy and illegal, the evidence showed that what was alleged to have been organised by the plaintiff was a "chit" or "chitoo,"

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which is said to be well known amongst Indians in. Natal, and has, in this form, been held to be legal by two decisions of the Natal Court. The defence of illegality appears to have been abandoned and was not taken before us. The magistrate gave judgment for the plaintiff, holding that the onus was on the defendants and that they had not discharged it. I am by no means certain that the magistrate did not go further and find positively that, apart from the onus, he believed that plaintiff and his witnesses and disbelieved the defendants and their witnesses. But however that may be, an appeal to the Natal Provincial Division was upheld and the magistrate's judgment was altered to one of absolution from the instance, the Court holding that the onus throughout was on the plaintiff. BROOME, J., after giving a resumé of the evidence, said: -

"This welter of contradiction leaves me with the impression that the promissory note may possibly have been given for a loan of money or may possibly have been given in respect of future contributions to a chit, but that both stories are unlikely. There can be no weighing of probabilities because there are none, and an issue of fact cannot be determined by the weighing of improbabilities. I am left with the impression, too, that no witness has spoken the whole truth and that the real transaction was probably something quite different from the version of either party. In these circumstances the case can only be decided in accordance with the incidence of the onus of proof."

I shall assume that this was correct and shall approach the case accordingly.

It consequently becomes necessary at the outset to deal with the basic rules which govern the incidence of the burden of proof the onus probandi - for upon them the decision of this case must ultimately rest. And it should be noted immediately that this is a matter of substantive law and not a question of evidence; Tregea and Another v Godart and Another (1939 AD 16, at p. 32).

The first principle in regard to the burden of proof is thus stated in the Corpus Juris: "Semper necessitas probandi incumbit illi qui agit" (D. 22.3.21). If one person claims something from another in a Court of law, then he has to satisfy the Court that he is entitled to it. But there is a second principle which must always be read with it: "Agere etiam is videtur, qui exceptions utitur: nam reus in exceptione actor est" (D. 44.1.1). (Exceptio does not mean, of course, an exception in the sense in which the

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term is now used in our practice.) Where the person against whom the claim is made is not content with a mere denial of that 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. (I am not here going into questions as to how far either party may be assisted by presumptions: nothing of the kind arises here, so far as I know, and I am only stating the general rules which, as I see them, are applicable to the present case.) I have given one version of each rule from the Corpus Juris; there are a number of others, all to the same effect. Voet (22.3.9, Horwood's translation) sums up the two rules as follows: "First the plaintiff proves his declaration unless it be admitted and then the defendant his plea (exceptio) since he is plaintiff so far as that goes." Again leaving out all questions of presumptions (with which Voet deals later in the Title), this states these two general rules with admirable clarity.

But there is a third rule, which Voet states in the next section 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 a fact that is denied and that the denial is absolute." This rule is likewise to be found in a number of places in the Corpus Juris I again give only one version: "Ei incumbit probatio qui dicit, non qui negat" (D. 22.3.2). The onus is on the person who alleges something and not on his opponent who merely denies it. This rule is stated by Matthaeus, de Prob. (8.1) to be lippis et tonsoribus nota, that is to say, known to everyone, but in fact its application is, as pointed out by Best (10th ed., sec. 270), the subject of much misconception. He particularly remarks that it is not universal, but that "in the ordinary course of things the burden of proof is not cast on the party who merely denies an assertion". (Indeed, its very existence is denied by Goudsmit (Gould's trans., sec. 104, p. 316, n. 2.) Before I leave the subject of the Roman law I should add that the three rules to which I have...