opportunity (at a not particularly attractive fixed rate) rather than a loan to be paid to the Claimant at a low interest rate of 4%. Following a Part 18 request, on the 7 th September 2006 the First Defendant accepted that this was incorrectly pleaded and that was meant was “an agreement between the Fist Defendant and the Claimant for the arrangement of a loan for or on behalf of the Claimant to be arranged personally by the First Defendant for the Claimant if and when requested by the Claimant to do so”. At the outset of the case, without objection, the First Defendant’s defence was amended to read that this agreement was reached at the same time as the Claimant agreed to make the donations and the agreement was “the First Defendant agreed to assist in arranging or obtaining a loan for the Claimant if an when requested to do so”. Applicable legal principles 69. As noted above the Claimant accepted at the outset of this trial that the burden of proof lay on him to establish his entitlement to the money transmitted. In response to questions from the court Mr. Crystal accepted that the burden was to show that the money sent to Trust was a loan and not a gift. The case was said not to rely on any presumptions that the law may or may not make as to whether a sum of money transmitted is to be treated as a gift. However, in his closing submissions, Mr. Crystal did draw the court’s attention to some authorities in other jurisdictions to the effect that there was indeed a common law presumption against a gift. Since Mr. Hornett had already completed his submissions in response to the opening he was entitled to address these new authorities, and submitted in writing that it was too late for the Claimant to change his case to one of resulting trust where un-pleaded equitable defences might arise or seek to reverse the burden of proof. I agree with those observations, but the law relating to gifts seems to me to be of relevance in how the Claimant discharges the burden on him. If he can show that the payments were not gifts, it makes it substantially more probable that they were loans. 70. In that context Mr. Crystal drew to my attention, the conclusion of Marais JA in the case of Welch v Commissioner for the South African Revenue Service Case 23/2003 delivered in the Supreme Court of South Africa on the 11 th March 2004. where he said at [30]- [31]: “in my opinion [the South African ] legislature has not eliminated from the statutory definition the element which the common law regards as essential to a donation, namely that the disposition be motivated by pure liberality or disinterested benevolence and not by self interest or the expectation of a quid pro quo or some kind from whatever source it may come. If one were to…..find a single word apt to convey that the disposition should be motivated by pure liberality and in expectation of any quid pro quo of whatever kind, one would not find a better word than gratuitous. The shorter OED gives the following meaning to the word: ‘1. Freely bestowed or obtained, granted without claim or merit; costing nothing top the recipient; free’”. 71. Clearly people frequently make gifts to charities and the Defendants can point out that very large sums by way of gift have been made to this charity. However, charitable gifts are not usually made as part of an agreement with mutual obligations, and where someone donates to charity there is not usually a dispute as to what the donor’s intentions were. Where there is a dispute it seems to me that it is the intentions of the