The
standard of proof in civil proceedings is proof on a balance of
probabilities.
What
this brings to mind is a mental picture of the scales of justice, the
embodiment of the underlying principle that underpins the justice
system. It entails a balancing of the plaintiff's claim against the
defendant's defence. It necessitates a decision of which of their
versions of events is more likely to be true. In other words, which
version is more believable, or most likely to have transpired, than
the other?
It
is my view that the preponderance of probabilities is an exercise
which involves an evaluation and an assessment of the likelihood of
the plaintiff's version being the correct one as opposed to the
defendant's, or vice
versa.
In making this determination, we look at the pleadings, at the
documentary evidence, at what the parties' representatives said and
did when they were in the witness stand, and, finally, at what the
law says in light of the evidence that we will have accepted. Then we
determine what ought to be done in order to do justice between the
parties.
The
plaintiff issued summons against the defendant on 24 March 2014 in
which it claimed payment of USD$48,000= being the replacement value
of soya beans that were lost while in the defendant's custody,
interest at the prescribed rate, and costs of suit.
The
defendant denied entering into any agreement with the plaintiff for
the transportation of soya beans. It admitted that the parties
entered into an agreement for the transportation of seed maize which
agreement was mutually terminated by the parties.
The
matter was referred to trial for the determination of the nature of
the agreement between the parties; whether such agreement was
terminated; whether the defendant gave instructions for the loading
of a truck with soya beans; and, consequently, whether the defendant
is liable for the loss suffered by the plaintiff of thirty tonnes of
soya beans valued at USD48,000=.
It
is common cause that the parties signed a 'Load Confirmation and
Rate Agreement' on the 28th
of November 2011 in terms of which the defendant agreed to bear the
risk for any loss or damage to the goods carried by it and
indemnified the plaintiff against any claims.
The
parties agreed that any changes to the contract would be reduced to
writing and that the defendant could not subcontract without the
express written consent of the plaintiff. It was a term of the
contract that collection of the load was confirmation, by the
defendant, of the terms and conditions of the parties' contract.
It
is common cause that a load of soya beans, as opposed to seed maize,
was loaded onto a thirty tonne truck on behalf of the plaintiff. It
is common cause that the truck which accepted the plaintiff's load
went missing and that the representative of the defendant assisted
the plaintiff's representative to search for the truck.
(i)
Was the agreement between the parties mutually terminated?
(ii)
Was the truck that loaded soya beans a truck which had been
sub-contracted by the defendant with the plaintiffs express consent -
written or otherwise?
(iii)
Did the truck load thirty tonnes of soya beans valued at USD$48,000=,
or less or more, or maize seed instead of soya beans?
(iv)
When the defendant's representative offered to and did assist the
plaintiff's representative to look for the misappropriated truck,
was this an acceptance of liability on the part of the defendant?
The
contemplation of the possible answers to these questions will assist
the court to assess the probabilities in this case and to decide
which of the parties' versions is supported by the preponderance of
probabilities.
In
a civil case, the plaintiff must prove its case on a balance of
probabilities. This has been interpreted to mean that:
“It
must carry a reasonable degree of probability but not so high as
required in a criminal case. If the evidence is such that the
tribunal can say 'we think it more probable than not' the burden
is discharged; but, if the probabilities are equal it is not.”
See
Milner
v Minister of Pensions
1947
2 All ER 372…,
and
Thulisani
Dube Nyamambi v Bongani Ncube
HB82-15.
In
the case of Zimbabwe
Electricity Supply Authority v Dera 1998
(1) ZLR 500 (SC)
the
court said that:
“…,.
In
a civil case, the standard of proof is never anything other than
proof on the balance of probabilities. The reason for the difference
in onus between civil and criminal cases is that in the former the
dispute is between individuals, where both sides are equally
interested parties. The primary concern is to do justice to each
party and the test for that justice is to balance their competing
claims. In a criminal matter, on the other hand, the trial is an
attack by the State, representing society, on the integrity of an
individual. The main concern is to do justice to the accused. If the
prosecution fails, the State does not lose.”
The
learned
authors,
HOFFMAN
& ZEFFERTT,
in
their book, SA
Law of Evidence
4ed…,
state that;
“There
are no exceptions to the rule that all issues in a civil action are
decided upon a preponderance of probabilities.''
In
JOUBERT,
The Law of South Africa,
Vol
9…,
the learned author says that:
“In
civil proceedings, proof is furnished upon a preponderance of
probability and this is the case even when allegations of criminal or
immoral conduct are to be proved.''
Accordingly,
we must balance the plaintiff's claim against the defendant's
defence, and, in so doing, decide which of their versions is more
likely to be true. In other words, which version is more believable
or most likely to have transpired than the other.
The
preponderance of probabilities is an exercise which involves an
evaluation and an assessment of the likelihood of the plaintiff's
version being the correct one as opposed to the defendant's. In
making this decision we look at the pleadings, at the documentary
evidence, and at what the parties' representatives said.
The
evidence shows that the parties willy-nilly and haphazardly changed
the terms of their contract verbally, and not in writing. This makes
it difficult to assess whether the defendant is being candid when it
says that the contract was 'mutually' terminated verbally. It is
equally difficult to assess whether indeed the defendant
sub-contacted to a third company as alleged by the plaintiff because
neither the plaintiff's consent to such a course of action, nor the
alleged sub contract itself, is in writing.
This
case boils down to a question of the plaintiff's word against the
defendant's.
The
probabilities are evenly balanced. Unfortunately, in order for the
plaintiff to win its case, the preponderance of probabilities must be
tilted in its favor.
In
this case they are not.
The
evidence does not show that the defendant had a hand in giving
loading instructions to Seed Co. The evidence shows that it was the
plaintiff which faxed loading instructions to Seed Co. A copy of this
fax would have assisted the court to determine who gave the
instruction, which company was authorised to load, the registration
number of the truck, the name of its driver and his identity number.
The
plaintiff said that this information was supplied to it by the
defendant. It may very well have been. There is insufficient evidence
that the defendant supplied this information to the plaintiff
pursuant to a subcontract. The terms of the sub-contract were not
made clear to the court. There is insufficient evidence, in the
absence of the loading instructions, as to the nature of the goods
which were loaded onto the truck in question.
Was
it soya beans or maize seed? Was it thirty tonnes or less, or more?
It
is anybody's guess because there was no evidence placed before the
court on which it can base any findings in answer to those questions.
It is highly probable that the defendant's version is correct,
that, as a player in the transport industry, the defendant referred
the plaintiff to another transporter when it was unable to load the
plaintiff's goods. If the defendant was unable to load the
plaintiff's goods, then, in terms of the plaintiff's own
contract, the defendant was not bound by the terms of the contract
and not liable to indemnify the plaintiff against loss or damage.
There
is no evidence that, even if it were found that the defendant was
authorized, verbally, by the plaintiff to sub contract, the terms of
the plaintiff and the defendant's initial contract would also be
binding on the defendant as a subcontractor. No contract between the
defendant and the third party was alluded to, produced, or had its
terms, if they were verbal, placed before us.
We
come to the inescapable conclusion that the plaintiff did not manage
to discharge the onus on it to prove its case on a preponderance of
probabilities.
It
is more probable that the plaintiff was the victim of fraud, and
that, because the alleged fraudsters were referred to it by the
defendant's representatives, the plaintiff wishes to hold the
defendant to account. The plaintiff cannot do so on the basis of the
evidence which it placed before the court. The cause of action is not
founded. The evidence before the court is inadequate, and
insufficient, to tilt the probabilities in the plaintiff's favor.
For
these reasons, the plaintiff's claim is dismissed with costs.
