Weinder Properties (Pty) Ltd v Gutstein

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Steyn J, Ogilvie Thompson J, and Hall J
• Judgment Date: 19 August 1952
• Citation: 1952 (4) SA 265 (C)
• Hearing Date: 01 August 1952

F Steyn J:

The respondent sued the appellant in this Court for provisional sentence on a mortgage bond for £7500 which as alleged in the summons became due by reason of the non-payment of the sum of £1000 on or before the 1st November 1951 as provided for in the bond The matter came before HERBSTEIN J who granted provisional sentence as G prayed and the appellant appealed on a number of grounds

The first ground of appeal is that the learned Judge a quo erred in finding that the appellant had not established on the papers a balance of probabilities in favour of his defence. The defence was that the H respondent had waived his right to foreclose on the bond and reliance was placed on an agreement which the respondent denied but which the appellant alleged had been concluded on the 10th November, 1951 - at which date the £1,000 had not been paid and the right of foreclosure admittedly existed - in a conversation over the telephone between one of the appellant's directors, Isaac Derman, at Cape Town and the respondent who was then at Port Elizabeth.

Steyn J

As the defence is based on waiver, the onus of proof is strictly on the appellant - see remarks of CENTLIVRES, C.J., in Collen v Rietfontein Engineering Works, 1948 (1) SA 413 at p. 436. The discharge of this onus is always difficult - per Innes, C.J., in Laws v Rutherfurd, A 1924 AD 261 at p. 263, and is obviously more difficult if a decision thereon must be arrived at solely on affidavits filed by the interested parties without the benefit of oral examination, as is normally so on an opposed claim for provisional sentence, i.e. unless Rule 13 (7) as read with Rule 6 (1) and (11) of the Rules of Court, which under certain B circumstances sanction the production of oral evidence, is successfully invoked by one or other of the parties concerned.

The learned Judge a quo decided this matter solely on the papers before him without any oral evidence. His refusal to apply the Rules of Court C referred to above will be dealt with later. On the question as to whether or not to grant respondent's prayer for provisional sentence he applied the test formulated by PRICE, J., in Allied Holdings v Myerson, 1948 (2) SA 961 (W). where at p. 966 he said:

'The rule is that provisional sentence will be granted unless the Court is satisfied that the probabilities are that the defendant will D succeed in the principal case. If in the provisional sentence case the Court considers that there is no balance of probabilities in favour of either party in any principal case that may eventuate then the law, as I understand it, requires the Court to grant provisional sentence.'

and as he came to a conclusion that the appellant had not shown that the E probabilities were clearly on his, the appellant's side, he granted provisional sentence as prayed.

Mr. Schock, who appeared for the appellant, did not contest the principle that the onus was one of balance of probabilities; but, relying on Souter v McDuff, 1927 CPD 276, he argued that, where the F probabilities are evenly balanced provisional sentence should be refused or, if not refused, that that afforded good grounds for the hearing of oral evidence under the above-quoted Rule of Court.

In Souter's case, supra, which is a full Bench decision of this Court, GARDINER, J.P., said at p. 276:

G 'I adhere to what I have said in the case of Southern Lands Ltd v Burger, that the defendant, if he wishes to escape provisional sentence, must show that prima facie he has a good defence. It is not merely any defence that will enable him to escape; he must set up a good prima facie defence',

H and the question therefore is whether this principle of good prima facie defence correctly reflects the modern trend of thought of our Courts. It was critically examined by DE BEER, J., in Smith v Snyman, 1940 OPD 113 and at p. 116 of his judgment he summarised his conclusions as follows:

'When therefore GARDINER, J.P., in Souter v MacDuff and Southern Lands Ltd v Burger, states that a defendant will be entitled to escape provisional sentence if he shows that he has 'a prima facie good defence' I can only assume that the learned JUDGE-PRESIDENT by the use of this expression merely intended to convey in different phraseology the general principle

Steyn J

of our law as enunciated above. But if, as is contended by counsel, the burden resting on defendant of satisfying the Court that he would on the balance of probabilities succeed in a trial is lessened by these decisions and that he need only show that he has a prima facie good defence, then I respectfully but emphatically beg to differ . . .'

In Morris & Berman v Cowan (II) 1940 W.L.D. 33, GREENBERG, J.P. (as he A then was) also had occasion to consider the nature of the onus on a defendant opposing a claim for provisional sentence on a liquid document; after review of the authorities he came to the conclusion that the rule in provisional sentence cases is the same as laid down in ordinary civil cases in the Appellate Division cases of West Rand B Estates Ltd v New Zealand Insurance Co., Ltd., 1925 AD 245 at p. 263 and Cape Coast Exploration Ltd v Scholtz and Another, 1933 AD 56 at p. 75, viz. that a preponderance of probability is sufficient basis of decision. At p. 36 of the report the learned Judge (GREENBERG, J.P.) expressed himself as follows:

'There was considerable discussion during the argument as to whether C it is sufficient for the defendant to raise a slight probability of success in the principal case or whether the balance of probabilities must substantially be in his favour. In my opinion the rule in provisiona sentence cases is the same as was laid down with regard to the ordinary civil cases in the Appellate Division cases that I have quoted. The idea of probabilities being evenly balanced or so slightly D different that a small consideration on one side can weigh the balance down on that side is one that is derived from using a figure of speech which imports physical characteristics into a question that is psychological. In weighing concrete objects, provided one's apparatus is sufficiently accurate, minute differences of weight can be measured. But no such delicate mechanism is available, at any rate in the case of the ordinary person, in weighing one set of probabilities against another and in my opinion this circumstance lies E at the root of the rule laid down in the Appellate Division cases. The Court therefore requires a preponderance which is more definite and has accordingly adopted the rule that I have quoted in relation to civil cases and I see no reason for not applying the rule to questions of provisional sentence as well.'

and at p. 37:

F 'I think, therefore, that the law to be applied is that the defendant must raise...