- July 27, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The plaintiffs initiated action against the defendants on 6 December 2017. The initial claim details were amended during the proceedings. The second plaintiff (Quantum Investments Number Ten CC) claimed N$751,525 debt from the defendants for delivered building materials per a partly written, partly oral agreement, supported by an invoice dated 1 June 2015. The first plaintiff (Mr. Booysen) amended his claims against the defendants arising from the written agreement of sale.
Defendants, in their plea, rejected any agreement with the second plaintiff and alleged forgery of the relied-upon invoice. They contended the first defendant was dormant during the agreement and denied liability for the second defendant based on membership status.
MILLER AJ:
A pre-trial order from September 30, 2020, directed trial on multiple factual issues including determining the agreement’s existence, terms, representatives, compliance, and authenticity of the invoice. It also addressed membership, contributions, liabilities, and parties to the agreement. Legal issues included locus standi and indebtedness of defendants. The case proceeded to trial, with testimonies from plaintiffs, defendants, and witnesses
The first and third plaintiffs, Mr. and Ms. Booysen, are a married couple. Ms. Booysen is the sole member of the second plaintiff (Quantum Investments Number Ten CC). The second plaintiff engaged in acquiring shutter boards for construction.
An arrangement existed between the Boysen’s where shutter boards were supplied to Mr. Booysen’s construction business informally. He used them on his sites, later partnering with a second defendant. They traded under the second plaintiff’s name, acquiring the first defendant (a dormant corporation) during the process. The container with boards was moved to coastal sites, with 860 new and 80 used boards eventually used by the first defendant.
An invoice dated 1 June 2015, though not created then, became a point of contention. Mr. and Ms. Booysen claimed it was acknowledged by them and the second defendant, with discussions on payment arrangement due to financial constraints. Mr. van Wyk, however, contradicted this, asserting limited presence at the first defendant’s offices and stating Mr. Booysen contributed containers and boards to the first defendant.
Considering the burden of proof, it rests upon the plaintiff, particularly the second plaintiff, who must establish claims on a balance of probabilities. Referring to Burgers Equipment and Spares Chehandje cc v Aloisius Nepela t/a Power Technical Services, the Namibian Supreme Court endorsed a passage from National Employers’ General Insurance Co Ltd v Jagers. The excerpt emphasizes that in a civil case, the plaintiff bears a less weighty burden than in a criminal case.
When faced with conflicting accounts, the plaintiff prevails if the Court is persuaded, with a preponderance of probabilities, that their version is truthful, accurate, and acceptable. This requires the plaintiff’s evidence to align with general probabilities. Credibility assessment intertwines with case probabilities. If the balance tilts in favour of the plaintiff, their version is likely accepted. However, if probabilities remain equal, the plaintiff succeeds only if the Court believes their evidence over the defendant’s.
Thus, the court held that,
a) The burden of proof rests on the plaintiffs and they would only be able to succeed in their claim if the plaintiffs are able to establish the claim on a balance of probabilities.
b) The probabilities in this matter favor the versions of the defendants and the plaintiffs did not discharge the onus resting upon them and dismisses the plaintiffs’ claim with costs.
As a result, the court found that the plaintiffs did not discharge the onus resting upon them and made the following orders. The plaintiffs’ claim was dismissed with costs, which will include the costs of one instructing and one instructed counsel.