In addition, the onus of proof at the trial is usually borne by the plaintiff, in terms of the rule that " he who makes the averment or asserts the claim must prove it, " whereas during the provisional-sentence procedure the onus is on the defendant to satisfy the court that he will succeed in the principal case.
42.
Where a charge is defective for the want of an averment which is an essential ingredient of the relevant offence, the defect shall, unless brought to the notice of the court before judgment, be cured by evidence at the trial proving the matter which should have been averred . " S v Van Wyk " is relevant here.
43.
This system of pleading was not a bad one if accompanied by the right of either party to demur to his opponent's pleading, i . e . to say, " admitting all your averments of fact to be true, you still have no cause of action ", or " defence " ( as the case may be ).
44.
Relying on " Jaftha v Schoeman ", the court held that, since the mortgaged property was residential, the onus was on the bank to show that execution was permissible in terms of the Constitution : There should have been averments to the effect that the facts disclosed were sufficient to justify execution in terms of the right of access to adequate housing.
45.
If the promise of the annuity was intended as an inducement to the marriage, and the averment that the plaintiff, relying on the promise, married, is an averment that the promise was one inducement to the marriage, this is the consideration averred in the declaration; and it appears to me to be expressed in the letter, construed with the surrounding circumstances.
46.
If the promise of the annuity was intended as an inducement to the marriage, and the averment that the plaintiff, relying on the promise, married, is an averment that the promise was one inducement to the marriage, this is the consideration averred in the declaration; and it appears to me to be expressed in the letter, construed with the surrounding circumstances.
47.
Stripped then of these introductory recitals and alleged injurious consequences, and of the qualifying epithets attached to the facts, the averment is this; that the defendants and others formed themselves into a society, and agreed not to work for any person, who should employ any journeyman or other person, not a member of such society, after notice given him to discharge such workman.
48.
If I may borrow from another context the elegant phrase of Viscount Simon L . C . in " United Australia Ltd v Barclays Bank Ltd ", there has sometimes been, as it seems to me, " a misreading of technical rules, now happily swept away . " The writ of indebitatus assumpsit involved at least two averments, the debt or obligation and the assumpsit.
49.
The result of all this complexity was that to ascertain what was " at issue " in a case, a stranger to the case ( i . e ., such as a newly appointed judge ) would have to sift through a huge pile of pleadings to figure out what had happened to the original averments of the complaint and whether there was anything left to be actually adjudicated by the court.
50.
If, in such a case, the respondent has not availed himself of his right to apply for the deponents concerned to be called for cross-examination under Rule 6 ( 5 ) ( g ) of the Uniform Rules of Court, and the court is satisfied as to the inherent credibility of the applicant's factual averment, it may proceed on the basis of the correctness thereof and include this fact among those upon which it determines whether the applicant is entitled to the final relief which he seeks.
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