"In my opinion, the evident good sense in the proposition that, generally speaking, a trial judge should not take a course which could result in him being obliged to review the evidence twice, once before the defendant has called any evidence and again after further evidence has been called, should lead to recognition of the general rule in the terms in which it has clearly been identified in other jurisdictions.
That is not to say that there is no reason to put counsel to their election if the submission of no case to answer may be advanced in a manner disengaged from any review of the evidence. But that is not the case here.
As to that aspect of the matter it seems to me that there are primarily four situations in which a submissions of no case to answer may be made. They are:
1. Where no reference at all to the evidence is required.
2. Where a reference to the evidence is required only to establish that there is an evidentiary hiatus or failure to adduce any evidence as to an essential element in the cause of action.
3. Where it is argued that on a consideration of the evidence adduced by the plaintiff taken at its highest from the plaintiff's point of view, the evidence could not support the causes of action pleaded.
4. The situation where it is contended that although there is some evidence to support the plaintiff's claim, it is so weak and unreliable that it should be dismissed without calling upon the defendant.
In the criminal jurisdiction, category 4 would be met by following the course referred to in R v Prasad (1979) 23 SASR 161: see in particular per White J at 172.
As to category 1, this should normally be argued on the pleadings, preferably before the trial commences. No question of election arises in that situation. Likewise, consideration of a submission of no case to answer in category 2 should not involve an election.
As to categories 3 and 4, these situations should normally be met by the application of what I have referred to as the general rule that counsel should be called upon to elect.
It has been conceded by all counsel that the case falls into category 3.
Before leaving the question of the situations in which a submission of no case to answer may be made, I should say that it seems to me that some confusion has arisen by the use of the expression 'question of law'. It has sometimes been suggested that no election should be required if the consideration of the submissions is confined to a question of law.
But the adequacy of the evidence to support the plaintiff's case is always a question of law. I think it better to say that if consideration of the submission of no case to answer involves the need to evaluate the evidence, other than simply to identify an hiatus of the kind referred to in example 2 above, the moving party should normally be put to his election."