Online Reporter
Trust Maanda
Legal Position
IN court proceedings, there is what is called burden of proof.
It is sometimes known as onus of proof. This refers to who has the responsibility to prove an issue in court.
The person with the burden of proof is the person who has the duty or onus to prove what he or she alleges.
In a criminal case, the burden of proving the elements of the offence is on the prosecution or the State.
In a civil case, the burden of proof usually rests on the person who is suing or who initiated the proceedings.
This burden, however, shifts from one party to another depending on the facts of the case or the issues to be proved.
A person who asserts a fact or alleges a thing has the burden to prove his or her allegations.
This means that he or she must produce evidence that proves their assertion. One has to produce evidence rather than rely on an unsubstantiated and bald assertion.
In Dube v Murehwa, SC 68/21, the Supreme Court aptly remarked as follows on the impact of failure to adduce adequate evidence to one’s claims: “The law is clear that bald and unsubstantiated allegations do not establish a litigant’s purported or announced position. See Akhtar v Minister of Public Commission SC 173/97. …”
He or she who alleges must prove.
In the absence of such evidence, the court as the adjudicating authority cannot make its determination.
In Delta Beverages (Pvt) Ltd v Murandu SC 38/15, it was stated that: “I take the time to point out that parties are expected to argue their cases so as to persuade the court to see the merit, if any, in the arguments advanced for them.
“They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”
Similar remarks were expressed in Astra Industries Ltd v Chamburuka SC 27/12, that: “The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this Court.
In Book v Davidson 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 AD at 711 E-G: “… In other words, he who seeks a remedy must prove the grounds therefore.”
The onus can sometimes shift, depending on the issues to be resolved by the court. This shifting of onus is also then referred to as reverse onus.
For example, if the defence by a defendant is that he or she was not present when a certain thing happened, and says he or she was in another place, that defence is an alibi which he or she needs to prove.
If the defence is that he or she was in South Africa when the alleged thing happened, he or she needs to prove that indeed they were in South Africa.
In Kasukuwere and Mangwana and others, SC78/23, the applicant sought to have Kasukuwere disqualified from standing from the election for the Office of the President because he was absent from his constituency for more than 18 months.
The court said once the assertion was made and admitted, the onus shifted to Kasukuwere to show the reasons of his absence from his constituency
In criminal cases, the State bears the onus to prove the accused guilty by leading evidence to support its allegations against the person accused.
That is why after the State reads out the charge and the facts against the accused, the State has to call its witnesses to prove the accused guilty of what the State alleges.
Evidence may not be led only where the accused has pleaded guilty.
Where the plea is of not guilty, the State has to prove in a trial, by evidence, that the accused is indeed guilty of what is alleged against him or her.
However, the onus may also shift to the accused.
For example, a statute may say where the State proves certain facts, a certain state of affairs is presumed unless the accused proves to the contrary.
The State needs to prove the facts and once it does so, certain things are presumed and the accused assumes the duty to disprove or rebut that presumption.
That duty to rebut the presumption shifts the onus to the accused to explain.
In any proceedings, you must be aware of what issues need to be proved by the other party or by you. The onus may shift and you need to discharge it!
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646
