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INDEX OF LITIGANTS.
B. Page
Bhebheza Fuleni vs 101
Bubi and Ano. vs. Mahlokomane 99
Butelezi vj. Mtetwa 22
C.
Cele Putini and Ano. vj 31
D.
Dejasmarch Ntlako vi 103
Dhlalisa V5. Mdhlalose 24
Dhlamini vj. Mahlaba 6
Dhlamini vj. Mate 60
Dikoma vj. Kolwani 56
F.
Fuleni vj. Bhebheza 101
G.
Gasa Nxumalo vj 30
Gaulakaya v^. Tonyela 94
H.
Hlatuka Landingwe vj 90
J.
Jiyane Rubushe vj 69
K.
Kambula Nampetshwa vj 43
Khabane vj. Khabane 25
Koloti V5. Somyo 116
Kolwani Dikoma vj 56
Kwinana and Ano. vj. Lengesi and Ors 118
L.
Landingwe vj. Hlatuka 90
Langa Makoba vj 76
Lebogo vj. Malapo and Ano Ill
Lengesi and Ors. Kwinana and Ano vj 118
Luvuno Mahlobo vj. 45
M.
Mabele vj. Pungula and Ors 48
Macasa Mnyataza vj 28
Magwaza vj. Ntombela 15
Mahlaba Dhlamini vj 6
Mahlobo vj. Luvuno 45
Mahlokomane Bubi and Ano. vj 99
Makhoro vj. Matebese 64
Makoba vj. Langa 76
Malapo and Ano. Lebogo vj Ill
Malunga Rabotata vs. 96
Mano Ngwekulu vj 3
Manzini Ngwenya vj 108
Mate Dhlamini vj 60
Matebese Makhoro vj 64
Mbata vj. Mdhlalose 18
Mbata Ndhlovu vj 13
Mbuyazi vj. Mthethwa 54
Mdhlalose Dhlalisa vj 24
Mdhlalose Mbata vj 18
Mnyataza vj. Macasa 28
Mosehla vj. Mosehla 105
Mpantsha vj. Ngolonkulu and Ano 40
Mpayi Zondela vj 92
Mtetwa Butelezi vj 22
Mthethwa Mbuyazi vj 54
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N. Page
Nampetshwa vj. Kambula 43
Ndhlovu Mbata 13
Nene and Ano. Tsautsi vs 73
Nene Nzuza vj 51
Ngolonkulu and Ano. Mpantsha vj 40
Ngwekulu V5. Mano 3
Ngwenya vj. Manzini 108
Njombani vj. Tshali 62
Nkosi vj. Zwane 110
Ntlako vj. Dejasmarch 103
Ntombela Magwaza vs 15
Ntumbu Sineke vj 67
Nxumalo V5. Gasa 30
Nxumalo vj. Nxumalo 20
Nzuza vs. Nene 51
P.
Pungula and Ors. Mabele vj 48
Putini and Ano. vs. Cele 31
R.
Rabotata vj. Malunga 96
Rubushe vj. Jiyane 69
S.
Sineke vs. Ntumbu 67
Sishuba vs. Sishuba 114
Somyo Koloti vs 116
T.
Thambe and Ors. Twesha vj 86
Tonyela Gaulakaya vj 94
Tsautsi vj. Nene and Ano 73
Tshali Njombani vj 62
Twesha vs. Thambe and Ors 86
U.
Umvovo vj. Umvovo 80
Z.
Zondela vj. Mpayi 92
Zwane Nkosi vj 110
SUBJECT INDEX.
A.
Abyssinian — Page
Aboriginal race or tribe of Africa 103
Administration Act, Native (No. 38 of 1927). —
Section 10 Ill
11(1) 80
15 54, 111
„ 18 6, 86
22 (6) 105
„ 22 (7) 25
., 35 62. 103
Adultery —
Catch 28
Ceremony for child 99
No action where customary union dissolved 62
Proof of 99
Specific acts must be proved 28
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A.
Animals— Page
Damage by 76
Negligence of owner 76
Appeals to Appellate Division —
No important question of law 86
No reasonable prospect of success 6
Appeals to Native Appeal Court —
Condonation of late noting 86, 103
Security: giving of 103, 108
Assault —
Assessment of damages 15
Damages: Liability of guardian 15
B.
Bavenda Custom —
Refund of Lobolo : widow past child bearing age returning to her people 3
Bechuana Custom —
Kraalhead liability 56
C.
Children —
Custody: Marriage by Civil rites 105
Maintenance: Illegitimate child: Liabilty of natural
father in Natal 45
Parternity: Evidence of mother of child essential 24
Code—
See “ Natal Code of Native Law
Condonation of late Noting of Appeals —
See “ Practice and Procedure — Appeals ” and “ Appeals Contracts —
Interpretation under Native Custom 80
Costs in Native Appeal Court —
Absolution jugdment substituted on appeal 90
Courts: Native Appeal Court (see also “ Rules ”).
Attorney not specifically instructed to appeal 94
Security 103, 108
Courts: Native Chiefs’ Courts (See also “Rules”).
Appeal: Application for extension of time 18
Particulars required to be lodged by Chief not furnished. . 18
Where no jurisdiction conferred on Chief 110
Courts : Native Commissioners’ Courts (See also “ Rules ”) —
Witness: Calling of by Court 30
Curator ad Litem —
Only to be appointed of Court considers it necessary 20
Customary Union (See also “ Lobolo ”) —
Actions in connection with to be brought against guardian 40
Desertion by wife 92
Dissolved by subsequent civil marriage 62
Divorce at instance of wife 54
Misconduct by engaged girl 43
Mother acting for guardian 40
Northern Districts of Natal: Official witness 13
Order for return of lobolo 54
Putuma: husband must, before suing 92
Widow, past child bearing age 3
Customs : See “ Native Customs
IV
D-
Damages — Page
Animals: Damage caused by 76
Assault 15
Defamation 67, 118
Mitigation of damages 101
Trespass 51
Defamation —
Defence of fair comment 117
Quantum of damages 68
Words defamatory per se 118
Words in Xoza connotation being defamatory 6/,
Default Judgment: See “Judgment” and “Rescission of
Judgments
Delicts: see under various headings.
Divorce : see “ Husband and Wife ”,
Dowry : see “ Lobolo ”,
E.
Eiectment —
Based on dominium 48
Writ for ejectment supended: failure of conditions of
suspension • 96
Estates —
Civil marriage: Community excluded 105
Civil marriage in community of property 114
Devolving under Roman-Dutch law: Enquiries 116
Enquiries 25, 116
Prescription 116
Evidence —
F/ve voce evidence: contradictory affidavits Ill
Exceptions —
Not taken in Court below 67
Execution —
Warrant for ejectment: suspension of 96
F.
Fraud —
Judgment obtained by: rescission Ill
Girls — G.
Allotments of : see “ Native Customs ”,
H.
Heir —
Liability under contracts by deceased 80
Surviving widow 25
Hlagwini Custom —
Father liable for dowry of son’s first wife 69
Husband and Wife —
Adultery: specific acts to be proved 28
Custody of children on divorce 105
Divorce at instance of wife 54
Order for refund of lobolo on divorce 54
I.
Immovable Property —
Ejectment from 48
Purchase of, in Natal Law 12/1884 (Natal) 48
Interpleader —
Ownership: passing of 64
V
I.
Interpretations — Page
Aboriginal race or tribe of Africa 103
I N PARI DELICTO Rule—
Application of 6
IsoNDHLO — See “ Maintenance
J.
Judgments: Native Appeal Court: —
Absolution judgment substituted on appeal 90
Judgments: Native Chiefs’ Courts —
Void where no jurisdiction conferred on Chief 110
Judgments: Native Commissioners’ Courts —
Absolution judgment not competent where onus on defen- dant 60
For defendant: where competent 90
Rescission of, where obtained by fraud Ill
Rescission of where void ab origine 54
Jurisdiction : Native Chiefs’ Courts —
Where concurrent with Native Commissioners’ Courts. ... 73
Jurisdiction: Native Commissioners’ Courts —
Where concurrent with Chiefs’ Courts 73
K.
Kraalhead —
Liability for damages for assault 15
Liability in Bechuanaland 56
L.
Land —
Purchase of in Natal: Law 12/1884 (Natal) 48
Late Noting of Appeal—
From Chiefs’ Courts 18
From Native Commissioners’ Courts 86, 103
Lobolo —
Father’s liability to provide : Hlangwini custom 69
Fines merge in 40
Man cannot hold two dowries in respect of same woman 43
Misconduct of engaged girl 43
Order for refund on divorce 54
Putuma where wife deserts 92
Refund of engagement cattle 43
Refund of : widow past child bearing age 3
Teleka 92
M.
Maintenance —
Illegitimate child: Liability of natural father in Natal 45
Marriage by Christian Rites —
Community excluded : estate 105
Custody of children on divorce 105
Dissolves customary union 62
In community of property : estate 114
Marriage by Native Custom —
See “ CusTOMERY Union ” and “ Husband and Wife Mbeko Beast —
Is a gift 22
Minors —
Action on behalf of, against guardian 20
VI
N. Page Natal Code of Native Law (Proclamation No. 168 of 1952) —
Section 50 (2) 20
Section 141 15
Natal Code of Native Law (Natal Law No. 19 of 1891) —
Section 148 13
Section 151 13
Native Appeal Courts: See “Courts: Native Appeal”.
Native Chiefs’ Courts: See “Courts: Native Chiefs’”.
Native Commissioners’ Courts: See “ Courts: Native Commis- sioners ”.
Native Customary Union —
See “ Customary Union ” and “ Husband and Wife Native Customs —
Mbeko beast 22
See “ Lobolo ” and “ Customary Union ”.
Natives’ (Urban Areas) Act No. 25 of 1945.
Section 1 6
Section 9 (5) 6
Section 46 (2) 6
Notice of Appeal: See “Appeals” referring to various Courts.
O.
Official Witness —
In Northern Districts of Natal after 1903. . 13
Onus —
Where on defendant, absolution judgment not competent. 60
Ownership —
Passing of. 64
P.
Party —
Citing of parties 15
Order for refund of lobolo in action for divorce where father not party 54
Paternity : see “ Children ”.
Pleas —
Res Judicate: raised by Court mero mo/w 73
Practice and Procedure —
Action on behalf of minor against guardian 20
Admissibility of pleadings in other cases 69
Appeals:
To Appellate Division :
No important question of law 86
No reasonable prospect of success 6
To Native Appeal Court:
Attorney not specifically instructed to note and prose- cute appeal 94
Condonation of late noting of appeal 86, 103
From Chiefs’ Courts :
Application for extension of time in which to note ap- peal 18
Jud^ent void if no jurisdiction conferred on Chief 110 Particulars required to be lodged by Chief not furnished 18
Application for rescission: Affidavits contradictory Ill
Attachment by Messenger of the Court 31
Available witness not called by party 22
Vll
Case of one party to be closed before other party gives
evidence 30
Citing of parties 15
Finality in litigation 22
Judgment for defendant: when competent 90
Onus on defendant : Absolution judgment not competent 60
Rescission of judgment which was obtained by fraud Ill
Rescission of judgment which was void ab origine 54
System of law to be applied 80
Witness: available witness not called 22
Witness: calling of by Court 30
Prescription —
In Native estates devolving according to Native custom. . 116
Purchase and Sale —
Immovable property (in Natal) 48
Purchaser’s right to obtain transfer 31
PUTUMA —
Essential where wife deserts 92
letter of demand not sufficient 92
R.
Reasons for Judgment —
See “ Appeals ” and “ Judgments ” under various Courts. Rescission of Judgments —
Judgment void ab origine 54
Judgment obtained by fraud Ill
Vive voce evidence necessary where affidavits contradictory 111 Res Judicata —
Plea of, raised mero motu by Court 73
Rules: Magistrates’ Courts —
Rule 39 (2) 31
Rules: Native Appeal Courts —
Old Rule 6 86
Old rule 8 (3) 103
Rules: Native Chiefs’ Courts —
Rule 14 18
Old Rule 7 18
Rules: Native Commissioners’ Courts —
Rule 10 31
Rule 35 31
Rule 53 (7) (8) (9) and (13) 30
Old rule 30 54, 111
S.
Sale — see “ Purchase and Sale ”.
Seduction —
Admission by man of intercourse 45
Kraalhead liability in Bechuanaland 56
Paternity: Evidence of seduced woman essential 24
Person entitled to seduced girl’s lobolo must sue 24
Statutes, Etc. —
See “ Administration Act, Natives ”.
See “ Natal Code of Native Law ”.
See “ Natives’ (Urban Area.s) Act ”.
Act No. 5 of 1910 Section 13 (1) 31
Act No. 32 of 1917 Section 57 31
Act No. 32 of 1944 Sections 67 and 68 31
Act No. 43 of 1950 Section 23 96
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S. Page
Natal Law No. 12/1884 Sections 1 and 2 48
Natal Law No. 46 1887 Section 11 105
Proclamation No. 29 of 1937 6
Government Notice No. 1664/29 25, 105, 116
Succession —
Where marriage by civil rites: community excluded 105
Where marriage by civil rites: in community 114
System of Law to be AppuEr) —
Native Commissioner's discretion 80
T.
Teleka —
Defence of 92
Trespass —
Pecuniary loss 51
Vindication of right 51
V.
Venda Custom —
Widow past child bearing age returning to her people 3
W.
WtDOWS —
Past childbearing age returning to her people: refund of
lobolo 3
Wife —
Customary union: property acquired by wife 40
Witnesses —
Available witness not called 22
Calling of, by Court 30
Words and Phrases: Interpretation of —
Aboriginal race or tribe of Africa 103
Writs —
For ejectment: suspension: failure of conditions of suspen- sion 96
VERSLAE
VAN DIE
NATURELLE-
APPELHOWE
1952 (2)
REPORTS
OF THE
NATIVE APPEAL COURTS
DIE STAATSDRUKKER ♦ PRETORIA ♦ THE GOVERNMENT PRINTER
Page 127 to follow on page 123 as numbers 124, 125 and 126 not allocated.
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NORTH EASTERN NATIVE APPEAL COURT.
N.A.C. CASE No. 4/52.
MAJOZI V. MAJOZI.
Pietermaritzburg: 15th April, 1952. Before J. H. Steenkamp, Esq., President, and Messrs. Balk and Oftebro, Members of the Court.
COMMON LAW.
Judgment debt — Tender to pay into Court after judgment — Tender not communicated to judgment creditor— ^hief pre- siding over Court functus officio once judgment given — Judg- ment debtor’s duty as regards liquidation of judgment debt — Court officials not agents of either party.
Summary: After a Chief had given judgment, the judgment debtor tendered to that Chief an amount in settlement of the judgment debt; this tender was not communicated to the judgment creditor, who subsequently caused the Chief’s Messengers to attach cattle of the judgment debtor.
Held: That as the Chief became functus officio once he had pronounced judgment, and as he was not authorised by the judgment creditor to accept any tender made on his behalf, a tender made to such Chief would not liquidate the judgment debt where it was neither communicated to nor accepted by the judgment creditor.
Held further: That it is the duty of the judgment debtor to seek out the judgment creditor and liquidate the judgment debt. Held further: That the presiding Chief acted in a judicial capacity when he gave judgment and is not thereafter the agent of either judgment creditor or judgment debtor.
Appeal from the Court of the Native Commissioner, Msinga.
Steenkamp (President) : —
From the record it appears that the present plaintiff (herein- after referred to as the “judgment debtor”) had, in a previous case, been sued by his father, who is now defendant (hereinafter referred to as the “judgment creditor”), and who had obtained a judgment in the Chiefs Court against the judgment debtor for two head of cattle.
After the judgment the judgment debtor took an ox and £3 to the Chief in settlement of the judgment debt. That ox and the £3 were never paid over to the judgment creditor who thereafter approached the Chief to send a messenger to attach the judgment debtor’s property in settlement of the judgment debt. This was done about eighteen months prior to the issue of the present summons. The Chief’s messenger attached two head of cattle and handed them over to the judgment creditor. The judgment debtor then sued the judgment creditor for the return of the two head of cattle which he alleges should never have been attached, seeing that he had tendered an ox and £3 in settlement of the judgment debt in the previous case.
The Assistant Native Commissioner gave judgment in favour of the present plaintiff (judgment debtor), and against that judg- ment an appeal has been noted to this Court on the following grounds: —
“1. On the evidence as a whole the Assistant Native Commis- sioner should have found that the cattle in dispute were not spoliated from plaintiff by defendant but were law- fully attached by the Tribal Messenger in pursuance of the judgment pronounced by Chief Mqati Majozi in the Native Chiefs Court, Case No. 151/1949.
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2. The Native Commissioner erred in holding that the present
plaintiff had settled the judgment in the aforesaid Case No. 151/1949, and should have held that any offer of settlement that was made by the present plaintiff (defen- dant in Case No. 151/1949) was neither communicated to, nor accepted by, the present defendant (plaintiff in Case No. 151/1949).
3. The Assistant Native Commissioner should have held that
Chief Mqati Majozi became functus officio once he had pronounced judgment in Case No. 151/1949, and that he had no power thereafter to compel the present defendant (plaintiff in that case) to accept a beast and £3 in settlement of a judgment for two beasts, and the Assis- tant Native Commissioner should further have held that Chief Mqati Majozi was not authorised by plaintiff to accept a tender of one beast and £3 on his behalf.”
These grounds, in my opinion, are well taken, and the Assist- ant Native Commissioner in his reasons for judgment admits that in his verbal judgment he erred in stating that the judgment debt was extinguished by the offer of settlement made by the judgment debtor. He further states that at that time it seemed to him inequitable and not in accordance with natural justice that an attachment should have been permitted by the Chief while knowing that the judgment debtor had made a tender and that such tender had not been communicated to the judgment creditor. He goes on and states that notwithstanding this mistake on his part, he is of opinion that he gave the correct judgment because — firstly, the tender still stood at the time of attachment and still stands to-day and the Chief could not have authorised the attachment before communicating the offer to the judgment creditor, and only if the offer had been rejected then, and then only, could he have authorised the attachment; secondly that the Chief was not functus officio in so far as the consequences of his judgment, viz., communicating the offer of the judgment creditor, and if rejected, authorising the attachment, were con- cerned; thirdly, since the attachment was wrongful, the judgment debtor had the right to follow up his cattle. It is also stated by the Assistant Native Commissioner that these three reasons of his are in accordance with natural justice. He also seems to be under the impression that a most undesirable state of affairs would arise should an unscrupulous Chief be permitted to mis- appropriate cattle and moneys paid into Court as tenders and thereafter authorise attachments in respect of the same judgment debts without revealing the tenders to the judgment creditor.
1 am afraid that this reasoning of the Assistant Native Com- missioner cannot be regarded as sound, as it follows that if a person feels that the Chief’s actions were such that he has suffered damage, he has the Common Law remedy to sue for any damages he might have suffered. 1 fail to see how the judgment creditor should be depireved of his remedy to cause an attachment to be made in respect of a competent judgment in his favour when the debt has not been paid to him personally. A judgment creditor is not concerned with what might have happened between the judgment debtor and the Court officials. After all, when a person has a judgment in his favour, he is entitled to be paid and it is the judgment debtor’s duty to seek out the judgment creditor and liquidate the judgment debt. He cannot shield behind the fact that he paid the money into Court without any notification being made fo the creditor. It should be emphasized that the Chief acted in a judicial capacity when he gave the judgment and is not thereafter the agent of either the judgment creditor or the judgment debtor.
As is manifest from the evidence, the tender by the judgment debtor, which was not in conformity with the Chief’s judgment, was neither communicated to nor accepted by the judgment creditor; and, as is equally clear therefrom, the judgment had not been satisfied when execution was levied, and the attachment in question was a valid one.
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In my opinion it follows that the appeal must succeed and that the Assistant Native Commissioner’s judgment should be altered to read; —
“ For defendant with costs.”
Balk (Permanent Member): I concur.
Oftebro (Member): I concur.
For Appellant: Adv. W. G. M. Seymour, instructed by Messrs. Nel & Stevens.
For Respondent: Adv. J. H. Niehaus, instructed by E. Gordon, Esq.
NORTH EASTERN NATIVE APPEAL COURT.
N.A.C. CASE No. 10/52.
MNTAKA V. NGCEMU.
Pietermaritzburg: 16th April, 1952. Before Steenkamp,
Esq., President, and Messrs. Balk and Oftebro, Members of the Court.
COMMON LAW.
Jurisdiction of Native Commissioner's Court — Section ten (1) (a). Act No. 38 of 1927 — “Matters in which the status of a person in respect of mental capacity is sought to be affected ” — Plea to the effect that at time contract was entered into, one party to the contract was not in possession of his mental faculties. Practice and Procedure: Onus of proof on Defendant.
Summary: Plaintiff sued Defendant nomine officio for transfer of land to which Defendant, although not admitting the alleged sale, pleaded that if the contract was entered into as alleged, the seller, who is now deceased, was at that time not in possession of his mental faculties and being non compos mentis, he was incapable in law of entering into such contract.
The question of jurisdiction was raised by the Court a quo and by the Native Apeal Court.
Held: That the Native Commissioner’s Court had jurisdiction to hear the case.
Held further: That the onus to prove that the deceased’s
mental capacity was impaired to such an extent that the Deed of Sale is not valid was on the Defendant and that as he had failed to discharge such onus. Plaintiff was entitled to succeed.
Cases referred to:
Madhludi v. Rex, 26 (1905), N.L.R., 298.
Robinson v. Rolfes, Nebel & Co., 1903, T.S. 543.
Bertram v. Wood, 10, S.C. 177.
Champion v. Meyers, 29, N.L.R., 382.
Spence v. Harris, 36, N.L.R., 538.
Jackson «&, Co. v. Eggeling, 1913, T.P.D., 403.
Maduray v. Simpson, 1932, N.P.D., 521.
Fortes v. City, 1935, C.P.D., 195.
Van Zyl v. De Beer, 1940, O.P.D., 145.
De Villiers & Anr. v. De Villiers, 1949 (2) S.A., 173 (C.P.D.). Commissioner for Inland Revenue v. Paarl Wine & Brandy Co., Ltd., 1946, A.D., 643.
Murison v. Murison (otherwise Smith), 44, N.L.R., 5. Father v. Rex, 45, N.L.R., 280.
Statutes referred to:
Section ten (1) (n). Act No. 38 of 1927.
Sections thirty-seven (2) and forty-four of Act No. 31 of 1917.
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Appeal from the Court of the Native Commissioner, Ixopo.
Steenkamp (President); —
In the Native Commissioner’s Court the plaintiff sued the defendant in his capacity as executor in the estate of the late J. J. Mntaka for a declaration that plaintiff is entitled to receive transfer of Sub. 1 of the Farm B of B.N. No. 7976, situate in the county of Pietermaritzburg, Province of Natal, in extent 99 ■ 9993 acres. Secondly that defendant (or any successor in office) in his capacity as the executor of the estate of the late J. J. Mntaka be and he is ordered to hand over the title deeds of the property farm B of B.N. No. 7976 to the plaintiff or his nominee and to sign alt the necessary documents when tendered for signature, in order to give effect to such transfer.
Defendant’s plea, although not admitting that the plaintiff had purchased the property in question from the late J. J. Mntaka, avers that if the contract was entered into and alleged in the summons, such contract is invalid by reason of the mental incapacity of the late J. J. Mntaka to enter into such contract, the said Mntaka not being at the time alleged, in possession of his mental faculties and being non compos mentis and incapable in law of entering into such contract.
On the day the case was set down for hearing, the Court a quo raised the question of jurisdiction in view of the provisions of section ten (1) (a) of the Native Administration Act. This section reads: —
“ Provided a Native Commissioner’s Court shall have no jurisdiction in matters in which the status of a person in respect of mental capacity is sought to be affected.”
Attorney for defendant and the attorney for plaintiff were called upon to argue on the question of jurisdiction. After argument the Assistant Native Commissioner ruled that the Native Commissioner’s Court has jurisdiction to try the issue.
The A'sistant Native Commissioner gave judgment in favour of plaintiff, and an appeal has now been noted by the defendant to this Court, the Assistant Native Commissioner’s judgment being to the effect that the defendant has not proved that the late J. J. Mntaka, a the time he entered into the contract, was incapable of understanding and appreciating the contract into which he purported to have entered. This Court being doubtful as to whether a Native Commissioner’s Court had jurisdiction to decide whether the status of the late J. J. Mntako was that of a person in possession of all his faculties, called upon Counsel for both parties to argue this aspect.
To enable this Court to decide whether section ten (1) (a) of the Native Administration Act is applicable to a case of this nature, it is necessary to give an interpretation to the meaning of this particular provision in the Act. First of all we have to decide what is meant by the word “ status ”.
From the various authorities and decided cases quoted by my brother Balk in a dissenting judgment, it would seem that to define the word “ status ” is no easy matter. Every person from the moment he is born has a status, either one acquired by force of law, which I will call an ipso jure status, or one acquired by an order of Court. Primarily the status of a human being is that which he acquires by force of law during the various stages of his or her life. Let me, for example, mention that from the date a person is bom to the date he reaches 21 years of age, he is, in the eyes of the law, a minor, i.e. his status is that of a minor with resultant contractual disabilities. That status may, by order of Court, be altered at any time during minority and he or she may be assigned the status of a major, which gives him or her certain rights not previously possessed. After reaching majority, the new status so obtained may again ipso jure be curtailed, for example, in the case of a female oi marriage.
It seems clear to me when we deal with the status acquirea by force of law that status continues, and only force of law
131
can alter it or the Supreme Court of the country has the right at any time, for good cause shown, to alter that status. If a person becomes incapable of managing his affairs, the Court may declare that his mental capacity is affected, and he then receives a status other than that which he enjoyed immediately prior to the order of Court.
If during the time a person enjoys full status (i.e. the status he acquired by force of law on reaching the age of majority which gives him full contractual capacity), he becomes dis- abled, either by drunkeness or mental abberation, then it cannot be accepted that his status has automatically gone through a process of alteration. Only a Court of Law with jurisdiction to deal with status, may declare a change of status. All I am prepared to say is that the person is suffering from a disability which may only be of a very temporary nature or may be the commencement of a state which will eventually lead to a change of status which only a competent Court of Law may bring about, and until that is done, an Inferior Court may not go further than declare that at the time the contract was entered into the party did not fully realise the purport of the agreement owing to his state of mind. For the same reason an Inferior Court may adjudicate on the question whether an illiterate person understood the document he was signing. It may also decide the question whether intoxication at the time was such that the person did not understand the document. These two examples go to illustrate that incapacity does not necessarily mean an alteration of a person’s status and why should mental abberation automatically have such an effect. I cannot see this, and hold the view that only an order of Court with jurisdiction, can alter a person’s status. To suffer from certain disabilities, either physical or mental, does not alter status unless so declared by a Court of Law.
In the present case all the plea amounts to is that at the time the contract was entered into, the deceased suffered from a disability recognised by a Court of Law as being sufficient for the impeachment of the contract. It does not suggest, because that disability existed, an automatic change of status took place.
The sub-section of Act No. 38 of 1927, already referred to, in my opinion, seeks to prevent the Native Commissioner’s Court from hearing a case in which application is made for the altera- tion of a person’s normal status to that of a person of unsound mind.
I therefore hold that the Native Commissioner’s Court had jurisdiction to hear the case. My brother Balk, however, does not agree that the Native Commissioner’s Court had jurisdiction.
Oftebro (Member): —
I agree that the Native Commissioner’s Court had jurisdiction. My view is that the legislature, whilst conferring very wide jurisdiction upon Native Commissioner’s Courts in all civil causes and matters between Native and Native, nevertheless, in view of the provisions of the Mental Disorders Act, and the jurisdiction of the Supreme Court thereunder, had to restrict the Native Commissioner’s Courts from deciding on the status of a person in regard to mental capacity. In my opinion the object of the proviso [section ten (1) (a) of Act No. 38 of 1927], is merely to prohibit a Native Commissioner’s Court from declaring that a Native is, or is not, mentally disordered or defective. I do not think that it was intended to apply to isolated instances of mental capacity where a contract, as in this instance, is con- cerned.
Steenkamp (President): Continues on the merits of the case: —
After evidence had been led, the Additional Native Com- missioner gave judgment for plaintiff as prayed, with costs, and against this judgment an appeal has been noted to this Court on the following grounds: —
“1. The learned Additional Native Commissioner erred in rejecting the evidence led by defendant as to the mental capacity of the late Jeremiah Mntaka and such rejection was not justifiable in law.
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2. That insufficient weight was attached to the medical evidence for the defendant.
3. That there was sufficient evidence to prove that the late Jeremiah Mntaka suffered from mental incapacity in March, 1947, and at his death in 1949 and the learned Additional Native Commissioner erred in not holding that the onus shifted to respondent (plaintiff in the Native Com- missioner’s Court) to prove a lucid interval at the time of signature of the agreement.
4. The learned Additional Native Commissioner erred in rejecting the evidence of many of appellant’s witnesses on the grounds that they were laymen and in basing his decision on the evidence of respondent’s witnesses who were all laymen.
5. That the learned Additional Native Commissioner erred in his refusal to consider the circumstances of the Will in the case and his decision thereon was bad in law.”
The facts of the case are that on the 7th May, 1948, a Deed of Sale, drawn up by Mr. Attorney Bulcock, was signed in his presence by the late J. J. Mntaka, whereby he sold to the plain- tiff certain portion of a farm already referred to. In this Court, Counsel for defendant (now appellant) confined his argument to the question as to whether the deceased was mentally capable of entering into such an agreement. There is no other dispute, and if this Court finds that the deceased knew what he was doing at the time he signed the document, then the plaintiff (now respondent) must succeed in his claim.
The onus was on appellant to prove that the deceased’s mental capacity was impaired to such an extent that the Deed of Sale is not valid.
In support of his allegation the appellant called a medical practitioner by the name of Dr. Hugh Smeath-Thomas, who was a houseman at the King Edward Hospital during the period the deceased was a patient at the Hospital and where he was being treated from the 18th February, 1947, to the 2nd March.
1947, for an illness diagnosed as senile mental changes from which he still suffered on discharge. The deceased was again admitted to the same Hospital in May, 1949, but the medical practitioner who attended him then was not called as a witness.
Here it should be mentioned that deceased died during June. 1949. after a spell in hospital, according to the evidence of appellant. The Deed of Sale was entered into on the 7th May,
1948, i.e. about a year prior to the second time deceased was admitted to hospital and approximately a year and two months after he was first admitted to that institution.
In considering the evidence of Dr. Smeath-Thomas, it must primarily be pointed out that he is not an alienist or psychiatrist, and therefore his evidence is not to be relied upon to the same extent as that of a more experienced medical practitioner. There is, however, one piece of evidence standing out and that is when he states that in his opinion cases of the nature of Jeremiah Mntaka (deceased) may permit of lucid intervals, but on the other hand, a patient may have no lucid intervals at all. He goes on in his evidence and states “ a person suffering from senile dementia is still capable of lucid intervals.” The doctor then gives his opinion that even during lucid intervals he doubts if a person suffering from senile mental changes would be capable of transacting business ■'O as to appreciate all the aspects involved and the sequelae of such business.
This is a very doubtful expression, especially as the doctor also states that he is unable to say to what extent the deceased’s business acumen was affected by the condition “ senile mental changes ” as observed by him.
Sight must not be lost of the fact that the doctor only had the deceased under observation for a period of about fourteen days and there is no medical evidence to indicate whether deceased’s condition deteriorated or improved and what his mental state was at the time the contract was signed.
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Even if we accept the evidence of the various witnesses who are able to testify as to the deceased’s mental behaviour from the time he was discharged from the hospital the first time, we must be satisfied that when he appeared before Mr. Attorney Bulcock, his mind was such that he suffered from a legal dis- ability to enter into contract.
It must be remenbered that deceased owed the Land Bank. K.nifc money and he instructed Mr. Bulcock to remit £400, being the sale price of the land, to that Bank. Now, for deceased to remember his indebtedness to the Land Bank, he could not have been in such a mental state that he was unable to transact business. Mr. Bulcock had known deceased and his wife, who accompanied him, for many years, and to him deceased appeared to be perfectly normal. Mr. Bulcock is certain that deceased understood what he was doing and even mentioned that the reason for the sale was to discharge the major portion of the bond held by the Land Bank on the property. This evidence of Mr. Bulcock of what deceased said to him confirms that deceased knew what he was doing.
Reference has been made to a will signed by deceased on the 4th March, 1947, a photographic copy of which is attached to the record as Exhibit J.2. I do not think much importance can be attached to the will which ex facie would appear to be of no consequence seeing that we are dealing with an event which occured more than a year later. The handwriting in the Will is that of deceased and if anything, it strengthens the assumption that even after discharge from hospital the first time, the deceased was still able personally to write out such an important document as a will, notwithstanding the doctor’s evidence that his mind was not sound.
There is one significant factor in the case on which no argument was offered by either Counsel. I refer to the cor- respondence that took place between Mr. Bulcock, Attorney for respondent, and Mr. Arenstein, Attorney for appellant, at the time the administration of the estate was being attended to. On the 30th November, 1949, Mr. Arenstein requested Mr. Bulcock to forward to him the diagram of the property in question. This was done by Mr. Bulcock, who, at the same time, advised Mr. Arenstein that a client of his had purchased 100 acres of the property and that he required the Deed of Grant and Title to enable him to pass transfer. This letter was acknowledged by Mr. Arenstein with a promise to communicate with Mr. Bulcock again. A reminder was sent on the 12th January, 1950, to which a reply was received to the effect that appellant was not in possession of the immediate Title and that he was still awaiting further instructions from the Master of the Supreme Court before he decided to make application to certify the copy of the missing transfer.
Now, if appellant had any misgivings about the sale of the property, he would, through his Attorney, have challenged the sale by his father, but he did not do so and must, at the time, have been satisfied that a valid sale had taken place.
In my opinion the appeal should be dismissed with costs. The fees under items 4 and 5 of the Tariff are increased to £4. 4s. respectively.
Oftebro (Member): I concur.
Balk (Permanent Member): Dissentiente : —
This is an appeal against the whole of the judgment of the Court of Native Commissioner at Ixopo, given in favour of the plaintiff (present respondent) in an action in which his claim against the defendant (present appellant) who was sued in his capacity as executor of the estate of the late J. J. Mntaka (hereinafter referred to as “ the deceased ”), was firstly for a declaration that he (plaintiff) was entitled to receive transfer of certain land which he had purchased from the deceased, and secondly for an order that the defendant take the necessary steps to effect that transfer.
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The defendant, without admitting the alleged contract of sale, pleaded inter alia that if in fact it had been entered into, it was invalid by reason of the mental incapacity of the deceased at the time he did so.
The grounds of appeal are confined to the merits of the case.
Before proceeding with the hearing of this action on its merits, the presiding Additional Native Commissioner in the Court a quo raised the question of his jurisdiction proprio motu, to determine whether or not it was ousted by the proviso to sub-section (1) of section ten of the Native Administration Act, 1927, in view of the defendant’s plea that the alleged contract of sale was invalid by reason of the mental incapacity of the deceased at the time at which he had entered into it.
After hearing argument by the Attorneys for the parties on that point, the judicial officer concerned found that he had jurisdiction and tried the case to its conclusion.
Although the Additional Native Commissioner’s finding that he had jurisdiction is not one of the issues raised in the relative notice of appeal. Counsel for the parties were called upon, aher due notice, to argue that matter before this Court as its determination is fundamental to the proceedings in the Court below, since the parties cannot confer on that Court a jurisdiction expressly excluded by Statute if in fact it is so excluded.
Except for the limitations imposed by the proviso to sub-section (1) of section ten of the Native Administration Act, 1927, a Court of Native Commissioner has, in terms of that sub-section, an unfettered jurisdiction in respect of civil causes between Native litigants.
The only of those limitations with which we are concerned in the instant case, reads as follows: —
“ Provided that a Native Commissioner’s Court shall have no jurisdiction in matters in which —
(a) the status of a person in respect of mental capacity is sought to be affected; ”
This leads to a twofold enquiry, viz., the meaning of the proviso concerned and its effect on the otherwise unfettered jurisdiction of the Court a quo in the present action.
Counsel for appellant contended that that Court had jurisdic- tion, in that the word “ status ” implied something with a degree of permanence, so that the limitation concerned applied only when the matter in issue was the declaration of a person as a mentally disordered or defective person and not when it con- cerned his mental capacity to enter into an isolated transaction.
Counsel for respondent also contended that the Court below had jurisdiction. He sought to distinguish between mental capacity and mental ability, but these terms appear to be synonomous, vide Mahludi v. Rex, 26 (1905). N.L.R., 298, at page 303. He further submitted that the criterion was the declaration of a person as mentally disordered or defective and not his mental ability in an isolated transaction. But to my mind that submission is untenable in that a person who has been declared to be mentally defective can subsequently, during a lucid interval, enter into a valid contract, see Wille’s “ Principles of South African Law” (Third Edition) at page 140 and the authorities quoted in note 37 at the foot of that page.
The word “ status ” is not defined in the Native Administration Act, 1927, nor in the Interpretation Act, 1910. It therefore seems to me that the expression “ status of a person ” should be given that shade of its accepted meaning as is dictated by its present context and construed as — “ the position whieh a persona occupies in the eye of the law ”, vide Bell’s South African Legal Dictionary (Third Edition), and Madhludi v. Rex 26 (1905), N.L.R., 298 at pages 303 to 305, and 310. Apart from its relation to the status of a person, the expression “ mental capacity ” is in no way restricted in its application by its present context, so that ” mental capacity to enter into a contract ” appears to fall within he ambit of the proviso in question. This view gains support from the following passage in Lee’s ” Introduc- tion to Roman Dutch Law” (Third Edition) at page 118; —
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“ It is tempting to speak of unsoundness of mind as con- stituting a status, but it would not be correct to do so for mental unsoundness is not necessarily permanent or con- stant and a question which must be answered is not — ‘has the man been declared mad? but ‘ was he in fact incapable of understanding the particular transaction which is brought in issue ’? ”
In other words, it is mental capacity to enter into a transaction that constitutes a status.
In my opinion it follows that once the mental incapacity of a person to have entered into a contract forms the basis of any claim or counterclaim in a civil action between Native litigants, it constitutes a matter affecting such person’s status within the meaning of the said proviso and ousts the jurisdiction of a Native Commissioner’s Court in such an action; and the fact that the person whose mental capacity is in question, is dead at the time of the action, does not appear to affect the position that the jurisdiction is ousted since the criterion is not litis contestatio but the time at which such person entered into the contract, see the above-quoted excerpt from Lee’s publication.
But can it be said that these principles ought to be applied in a case as the present, wherein the mental incapacity of a person to have entered into a contract does not form the basis of a claim or counterclaim, but is in issue solely as a defence?
The correct common law view in cases in which it is necessary for the Court to give a finding upon a matter beyond its jurisdiction in order to decide a claim within its jurisdicton appears to be that set out in the following passage of the judgment in Robinson v. Rolfes, Nebel & Co., 1903, T.S. 543, at pages 549 and 550: —
‘‘ But where the only issue before the Magistrate is the claim, and that is upon the face of it within his jurisdiction, surely his duty is to decide it. The fact that a defence is raised which goes to the merits of the claim, and involves the consideration of a matter in itself outside his jurisdiction is to my mind no sufficient reason why the Magistrate should not come to a conclusion upon the claim.”
It is true that a contrary view was expressed in Bertram v. Wood, 10, S.C. 177, but the weight of subsequent decisions indicates that Robinson’s case (supra) was correctly decided, see Champion v. Meyers, 29 N.L.R. 382, Spence v. Harris, 36 N.L.R. 538, Jackson & Co. v. Eggeling, 1913 T.P.D. 403, Madurav v. Simpson, 1932 N.P.D. 521, Fortes v. City 1935 C.P.D., 195, Van Zyl V. De Beer, 1940, O.P.D. 145, and De Villiers & Another v. De Villiers, 1949 (2), S.A. 173 (C.P.D.).
The Appellate Division decision in Commissioner for Inland Revenue v. Paarl Wine & Brandy Co., Ltd., 1946, A.D. 643 does not appear to be in point as it seems to be based entirely on the provisions of sub-section (2) of section thirty-seven of the Magistrates’ Courts Act, 1917, and there are no corresponding provisions in the Native Administration Act, 1927.
It is of interest that in the Fortes and Van Zyl cases (supra) the view was expressed that sub-section (2) of section thirty-seven probably owed its introduction in the Magistrates’ Courts Act, 1917, to the decision in Robinson’s case (supra). It is also of interest that that sub-section, which is appended, has been re- enacted in identical terms in the present Magistrates’ Courts Act (No. 32 of 1944); —
“ 37. (2) Where the amount claimed or other relief sought is within the jurisdiction, such jurisdiction shall not be ousted merely because it is necessary for the Court, in order to arrive at a decision, to give a finding upon a matter beyond the jurisdiction.”
But if I understand the judgments in Robinson’s and the sub- sequent cases (supra) correctly, the decisions therein are based upon the fact that the relevant Magistrates’ Courts enactments imposed no other restrictions upon the Magistrate’s jurisdiction
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than a limitation based upon the sum or value of the right or matter claimed; or where such enactments contained other limitations upon the jurisdiction, those limitations had no application, see the report of Robinson’s case at pages 545, 547, 548, 551 and 552 and the reports of the other cases referred to above.
I have also referred to Murison v. Murison (otherwise Smith), 44, N.L.R., 5, and Father v. Rex, 45, N.L.R., 280. In Murison’s case, which was an application for a maintenance order, it was held that where the defence was that the applicant was not the respondent’s wife, the Magistrate had jurisdiction to decide upon the validity of the marriage, regard being had to section thirty- seven read with section forty-four of the Magistrates’ Courts Act, 1917. In the other case it was laid down that the Magistrate had jurisdiction to decide the paternity of an illegitimate child in adjudicating upon a charge of contravening section three of the Childrens’ Protection Act, 1913. But here too, neither of the incidental matters, i.e. the validity of the marriage and the paternity of the child, were expressly excluded from a Magistrate’s jurisdiction by the Magistrates’ Court Act then in force (No. 32 of 1917) vide section forty-four of that Act.
The position appears to be entirely different in the instant action. Here the jurisdiction of a Native Commissioner’s Court is expressly excluded as it seems clear in the light of what has been said above, that the proviso to sub-section (1) of section ten of the Native Administration Act, 1927, in so far as it relates to any matter in which the status of a person in respect of mental capacity is sought to be affected, applies, and as, to my mind, the language of that portion of the proviso is so wide that it necessarily postulates an intention by the legislature to include within its ambit all cases in which such status is brought in issue irrespective of whether by way of defence or otherwise. It must be added that where that issue is raised as a defence, this must be done, not with the intention merely to oust the jurisdiction, but bona fide as, from the evidence, appears to be the case in the present action; see the cases quoted in the last paragraph on page 85 and the first paragraph on page 86 of Jones and Buckle’s “Civil Practice of Magistrates’ Courts in South Africa” (Fifth Edition).
I therefore come to the conclusion that the jurisdiction of the Native Commissioner’s Court was ousted in the instant action by the said proviso.
In the result 1 am of opinion that the appeal should be allowed, that the finding of the 29th June, 1951, by the Court a quo that it had jurisdiction to try this case, and its ultimate judgment of the 21st January. 1952, on the merits, should be set aside and that in lieu thereof an entry be made on the record that the Court a quo had no jurisdiction in this action.
I do not think the evidence recorded by the Court below should be set aside as it, or at least some of it, was necessary to prove that the defence was raised bona fide and not merely to oust the jurisdiction of that Court.
In my view there should be no order as to costs both in this Court and in the Court below, as the parties did not, in either of these Courts, take the point on which the appeal has succeeded.
The majority of this Court having held that the Court a quo had jurisdiction, I agree that the appeal on the merits must fail.
For Appellant: Mr. G. W. Clulow of Ixopo.
For Respondent: Adv. J. H. Niehaus, instructed by Mr. G. H. Bulcock of Ixopo.
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NORTH EASTERN NATIVE APPEAL COURT.
N.A.C. CASE No. 25/52.
MTIYANE V. MNCWANGO.
Mtubatuba: 22nd April, 1952. Before Steenkamp, President, Balk and Fenwick, Members of the Court.
COMMON LAW.
Law of Contract — Application of doctrine of undue enrichment — witnessing of agreements between Nadves.
Summary: Plaintiff claimed £5 for services rendered by him to defendant. A Chief’s Court having given judgment for £2 in plaintiff’s favour, defendant successfully appealed to the Native Commissioner’s Court on the grounds that the services were rendered in return for shelter which defendant had given to plaintiff for a period of 12 months. Plaintiff thereupon appealed to the Native Appeal Court.
Held: That the services were rendered as a quid pro quo for shelter which plaintiff had received from defendant and con- sequently the doctrine of undue enrichment cannot be advanced in this case.
Held further: That it is usual for agreements between Natives to be made in front of witnesses.
Appeal from the Court of the Native Commissioner, Nkandhla.
Steenkamp (President): — •
In the Chief’s Court the plaintiff (present appellant) obtained judgment for £2 and costs on the claim of £5 which he alleged the defendant owed him for certain services rendered at the kraal of defendant while plaintiff was residing there. The defendant was not satisfied with the judgment and he appealed to the Additional Native Commissioner who upheld the appeal, and entered judgment for defendant with costs. Against that judgment an appeal has been noted on the following grounds: —
“ 1. That such judgment is against the evidence and the weight of evidence.
2. That the learned Native Commissioner erred in holding that on the evidence adduced, the plaintiff had failed to prove that he was entitled to remuneration as alleged either on contract or on the doctrine of unjust enrich- ment or on any other grounds.”
It is common cause that the plaintiff was living at the kraal of a man by the name of Majozi. He had a quarrel with Majozi and then, with the permission of the defendant, lived at the latter’s kraal. He apparently went there to stay only for a few days until he could make other arrangements, but this visit of his extended to twelve months, and during the time he stayed there he performed certain services, i.e. he built or repaired a cattle kraal, a mealie-stalk shelter and stable.
The Additional Native Commissioner in well prepared reasons found the following facts proved: —
“ 1. Plaintiff went to defendant’s kraal after having left that of Majozi as the result of a quarrel.
2. Plaintiff resided at defendant’s kraal for approximately
twelve months.
3. Whilst at defendant’s kraal plaintiff repaired a stable and
a kraal and erected a mealie-stalk shelter there.
4. Defendant told plaintiff to leave his kraal as he had been
there long enough.
5. When told to leave the kraal plaintiff did not raise any
Question of money owing to him, or of a quarrel.”
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These facts are supported by the evidence. The Additional Native Commissioner has considered all the aspects of the evidence adduced before him and it is abundantly clear that plaintiff is only claiming the amount of £S because defendant, after plaintiff had received shelter for twelve months, informed him it was now time to leave.
As pointed out by the Additional Native Commissioner in so far as the question of unjust enrichment is concerned, it is customary between Natives to render each other assistance in regard to building operations at their kraals without there being any question of payment therefor in cash. I also agree that this is especially the case where persons are residing, either tempo- rarily or permanently, at the kraal of another person.
If there had been an agreement between the plaintiff and the defendant that the defendant would pay for his services, the agreement would have been made in front of witnesses, which, in this case, was not done. I fail to see how the doctrine of undue enrichment can be advanced in the present case. It is a question of a quid pro quo for shelter which plaintiff had received from the defendant.
In my opinion the appeal should be dismissed with costs.
Balk (Permanent Member): I concur.
Fenwick (Member): I concur.
For Appellant: Mr. W. E. White of Eshowe.
Respondent in default.
NORTH EASTERN NATIVE APPEAL COURT.
N.A.C. CASE No. 6/52.
SITOLE V. SITOLE,
Durban: 28th April, 1952. Before Steenkamp, President, and Messrs. Balk and de Vries, Members of the Court.
PROCEDURE.
Practice and procedure — Forwarding of records of cases in which appeals have been noted — Noting of appeal — Unstamped notice of appeal delivered prior to coming into force of new rules — Document stamped after such rules came into force — Security given on the 9th January, 1952, for £5.
Summaty: The original and copies of the record of proceedings therein, which is a short one, were received by the Registrar four months after the relative notice of appeal had been delivered to the Clerk of the Court, and only a few days before the date fixed for the hearing of the appeal. A similar position exists in another case from the same centre. The notice of appeal, unstamped, was delivered to the Clerk of the Court on the 24th December, 1951. The stamps were sent to and affixed by the Clerk of the Court after the 1st January, 1952. Security in the amount of £5 only was given on the 9th January, 1952.
Held: That as the prolonged delay in forwarding the records to the Registrar seriously impeded the necessary preparatory work by members of this Court in the two cases from this centre, these lapses could not be allowed to pass, and the Registrar was directed to transmit a copy of these comments to the Secretary for Native Affairs.
Held further: That as the appeal was not properly noted until aher the 1st January, 1952, the new rules published under Government Notice No. 2887 of 1951, apply, and that security in the amount of £7. 10s. should be deposited.
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Statutes referred to:
Rules 6 and 8 of Government Notice No. 2254 of 1928. Rules 5 (3) and 32 (2) of Government Notice No. 2887 of 1951.
Appeal from the Court of the Native Commissioner, Durban.
Balk (Permanent Member) : —
Judgment in this case in the Court a quo was entered on the 4th December, 1951, and the relative notice of appeal was delivered to the Clerk of that Court timeously, but it is doubtful whether it was stamped within the prescribed period of twenty one days, since Counsel for appellant intimated to this Court that the stamps in question had been forwarded with other matter, which reached the said Clerk of the Court on the 9th January, 1952; moreover the security for respondent’s costs of appeal in the form accepted by the said Clerk of the Court was lodged after the expiry of the said prescribed period.
Whilst the wording of the relevant Rules of this Court (Nos. 6 and 8, published under Government Notice No. 2254 of 1928) and that of the corresponding Magistrates’ Courts Rule (No. 47) is admittedly not identical, the intention underlying them is, to my mind, substantially the same, viz., that the giving of security for the respondent’s costs of appeal forms part and parcel of the act of noting of the appeal, i.e. the noting of the appeal is not complete without the giving of such security, since to hold otherwise postulates the respondent’s being obliged to take steps to meet the appeal without security for his costs and so involves him in potential loss which could hardly have been contemplated by the legislature.
In the case of appeals from judgments of Magistrates’ Courts, it has been held that security for the respondent’s costs of appeal must be given within the prescribed period of twenty-one days and that such security must be for the full amount. [See the authorities cited on page 406 of Jones & Buckle’s “ Civil Practice of the Magistrates’ Courts ” (Fifth Edition).] In my view that position also obtains as regards appeals to this Court since, as pointed out above, the object of the relevant Rules in both Courts is substantially the same.
The security in question in the instant case, in the form accepted by the Clerk of the Court a quo, was not lodged until the 9th January, 1952, and then only in the sum of £5. It follows that in terms of sub-rule 32 (2) of the new Rules of this Court published under Government Notice No. 2887 of 1951, those Rules apply in the present case, and that security should have been given in the sum of £7. 10s. as required by sub-rule 5 (3) of those Rules.
On the application of Counsel for appellant, this matter was adjourned until the next session of this Court at this centre to enable him in the interim to take the necessary remedial steps in the light of the foregoing comments.
Another matter in connection with the present case calls for comment. The original and the copies of the record of proceed- ings therein which is a short one, were received by this Court four months after the relative notice of appeal had been delivered to the Clerk of the Court a quo, and only a few days before the date fixed for the hearing of this appeal. This prolonged delay seriously impeded the necessary preparatory work by the members of this Court in this case. An equally lengthy delay occurred in the transmission of the record in an appeal from the judgment of the same Court in another case which had also been set down for hearing during this session at this centre. Obviously these lapses could not be allowed to pass, and the Registrar has been directed to transmit to the Secretary for Native Affairs a copy of these comments.
Steenkamp (President): I concur.
De Vries (Member): I concur.
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Robb'„s'''i§S'rt“: »' Clark *
For Re^ondent: Mr. L. H. Catterall of Messrs. Robinson & Catterall, Durban.
NORTH EASTERN NATIVE DIVORCE COURT.
N.D.C. CASE No. 446/51.
NDIMANDE v. NDIMANDE.
Durban: 7th May, 1952. Before J. H. Steenkamp, Esq., President.
COMMON LAW.
Husband and wife — Divorce on ground of adui'ery — Allegation
that husband sterile when his wife conceived, not proved.
Summary: Plaintiff, the husband, sued his wife for divorce on the grounds of adultery, alleging that he was sterile, beinv a crypsorchid, and that although he had carnal intercourse his wife at the time she conceived, he could not be the father of the child born to her because of such alleged sterilit’’
Held: That as one case where spermatozoa was found in the fluid emitted by a crypsorchid is known, such one affirmative- instance is sufficient for all purposes of the law to overthrow ninety-nine negative instances.
Held: Further that as a physiological fact, it is obvious that the organs which have not descended are not always defective in structure or function.
Held further: That as intercourse between husband and wife at alt material times is admitted, and as there is no evidence that plaintiff was sterile when his wife conceived, no adultery has been proved, especially in view of defendant’s denial on oath that she ever, during the subsistence of the marriage, had intercourse with any other man.
Steenkamp (President): —
The plaintiff (husband) sues his wife (defendant) for divorce on the grounds of adultery with some unknown person.
The defendant gave birth to a child on the 21st March, 1951, of which plaintiff alleges he is not the father.
Intercourse at all appropriate times is admitted by plaintiff, but he bases his action on the submission that he was sterile and could not be the father of the child his wife bore.
He is supported by Dr. Samuel McMahon, an Urologist of Durban.
Before dealing with the medical evidence it is necessary to give a resume of plaintiff’s evidence, which is to the effect that the defendant is his second wife — having married her on the 29th June. 1937. He divorced his first wife on the grounds of adultery, but during the subsistence of that marriage she bore him three children — the third being the adulterine child, which gave rise to the divorce. He states that he accepted the position that he was the father of the first two children, but he now has his doubts in view of what the Doctor has told him. Plaintiff also admits that during 1950, i.e. during the subsistence of the present marriage, he paid £30 damages to the parents of a girl he was accused of having rendered pregnant.
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The medical evidence is to the effect that plaintiff first con- sulted Dr. McMahon on the 3rd May, 1948, because he suffered from undescended testicles on both sides (i.e. plaintiff was a crypsorchid. After treatment, plaintiff was operated on to bring the right testicle down to the scrotum. The operation was partially successful. Later on, towards the end of the same year, an operation was performed to deal with the left testicle. Plaintiff was discharged from hospital about the end of January, 1949. It is to be noted that prior to these operations, or even for a reasonable period thereafter, no examination of the sperma- tic fluid was carried out.
Plaintiff consulted Dr. McMahon again on the 5th March, 1951, for the purpose of having his spermatozoa tested. It was then found that he was sterile. It is on this evidence that plaintiff relies that he could not have been the father of the child born on the 21st March, 1951. He called a witness by the name of Octavia Ndimande, who states that she saw defendant in the company of a man by the name of James Ngcobo, but her evidence is such that no reliance can be placed thereon.
It is true the Doctor’s evidence is that he is even prepared to say that it was impossible for plaintiff to be the father of the child. Later on he states : “ I think we can assume that he (plaintiff) has always been sterile.” He also states : “ If a specimen had been examined at the time he (plaintiff) was operated on, then I think he would have been found to have no sperm.” Again the Doctor states: “I could not answer the question that when I brought the testicles down that plaintiff would immediately become fertile, without the actual examination of the fluid at any time.”
Reading into the evidence of the Doctor, I come to the con- clusion that although, in his opinion, it was unlikely that plaintiff had ever been fertile, it is not impossible.
I come to this conclusion not without authority, as according to Taylor’s “ Principles and Practice of Medical Jurisprudence ” Vol. II on page 287 et seq, in one case Casper found sperma- tozoa in the fluid emitted by a crypsorchid. The authors further state that one affirmative instance is sufficient for all the purposes of the law to overthrow ninety-nine negative instances; and, as a physiological fact, it is obvious that the organs which have not descended are not always defective in structure or function.
There is no evidence that the operation performed on this crypsorchid in any way brought about any sterility. There might have been other causes of which there is no evidence that brought about the sterility as found by the Doctor on the 5th March, 1951. This does not follow that plaintiff was sterile at the time his wife, the defendant, conceived. Intercourse is admitted at all material times.
I therefore conclude in holding that no adultery has been proved, especially in view of defendant’s denial on oath that she ever, during the subsistence of the marriage, had intercourse with any other man.
Judgment is entered for defendant with costs.
For Plaintiff: Mr. Clark of Messrs. Clark & Robins, Durban.
For Defendant: Adv. R. W. Cowley, instructed by Messrs. Cowley & Cowley, Durban.
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SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 19/52.
NOMPENXELA v. MANQOMNTU.
Port St. Johns: 26th May, 1952. Before Sleigh, President, Wilbraham and Thorpe, Members of the Court.
NATIVE LAW AND CUSTOM.
Native Appeal Case — Native Custom — Nqoma cattle and increase being claimed by heir — Heir — Liable for debts and obligations of his father — Heir would be liable for shop debts if the proprietor was a Native — Heir would be liable even if he inherited nothing — Cattle — Value of not challenged.
Summary: Respondent is the son and heir of the late M and appellant is heir of the late Mgqobozi. Many years ago M Nqomaed two heifers to Mgqobozi. These increased and It is common cause that when M died there were five in Mgqobozi’s possession. After hearing evidence the Native Commissioner gave judgment for respondent for delivery of four cattle or payment of their value £10 each. Appellant has appealed.
Held:
(1) That the Native Commissioner was correct in accepting
the evidence for respondent.
(2) That in Native Law a contractual obligation incurred
must be discharged if not by the debtor, then by his heir, even if the heir derived no benefit from the estate.
(3) If contract was according to Common Law the heir
would be liable only to extent to which he has benefited by the estate.
Cases referred to:
Ngqandulwana v. Gomba, 4, N.A.C. 132.
Letlotla V. Bolofo, 1947, N.A.C. (C. & O.), 16.
Umvovo V. Umvovo, heard at Kokstad on 11,2,52. Magidela v. Siwintshi, 1943, N.A.C. (C. & O.), 52.
Appeal from the Court of Native Commissioner, Tabankulu.
Sleigh (President), delivering the judgment of the Court: —
This is an appeal against a judgment for plaintiff (now respon- dent) for delivery of four cattle or payment of their value at £10 each.
Respondent is the son and heir of the late Manqomntu and appellant is the heir of the late Mgqobozi. Many years ago Manqomntu nqomaed two heifers to Mgqobozi. These increased and it is common cause that when Manqomntu died there were five in Mgqobozi’s possession.
Respondent’s mother states that after her husband’s death (respondent then being a minor) she went with Mandimandeni to see Mgqobozi who told them in the presence of appellant that the cattle had increased to seven, but that one had been attached and another had been paid as dowry for appellant’s wife. He promised to replace these two cattle out of the dowry of his daughter. Mandimandeni confirms this evidence. Appellant denies all knowledge of this statement by Mgqobozi. He states that the Nqoma cattle had increased to eight when Manqomntu awarded Mgqobozi a red cow, and about three years later awarded him a white cow. Thereafter one of the original cattle died and its death was reported to Manqomntu, leaving five cattle which came into his (appellant’s) possession after the death of Mgqobozi.
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Respondent states that after the death of Mgqobozi he went to see appellant who told him that he had received five cattle from Mgqobozi and that two had died in the latter’s possession. In this Court it is contended that Mgqobozi could not have made to the two women the report they mention because respondent would have known of it and consequently challenged appellant’s statement that the cattle had died and, as he did not challenge it, the women’s evidence is false and should be rejected. The evidence is, however, also capable of the inference that respondent did know that appellant’s statement was false and did not challenge it because, since Mgqobozi had promised to replace the two cattle from his daughter’s dowry, it made no difference whether the cattle had died or been disposed of. In our opinion, the Assistant Native Commissioner has rightly accepted the evidence of the two women in preference to that of appellant, because the latter’s statement, to the effect that there was no increase after the first award was made, is so improbable that it must be false.
It is further contended that appellant would be liable as heir for the debts of Mgqobozi only to the extent to which he has benefited by the estate. If this contention is correct then the judgment in respect of these two cattle should have been one of absolution from the instance, since there is no evidence that appellant inherited anything. The contention is, however, entirely in conflict with the previous decisions of this Court. (See Ngqandulwana v. Gomba, 4, N.A.C., 132; Letlotla v. Bolofo, 1947, N.A.C. (C. & O.), 16; and Umvovo v. Umvovo, heard at Kokstad on 11th February, 1952, and not yet reported.] Counsel for appellant, however, contends that the law among the Pondos is different. At his request the question was referred to the native assessors whose opinion is annexed. It will be seen that the custom among the Pondos is the same as among the other tribes. The assessors go so far as to say that the heir would also be liable for shop debts if the proprietor was a native. That undoubtedly is strict Native Law; when a contractual obligation has been incurred it must be discharged, if not by the debtor himself, then by his heirs, and thus even if the heir derived no benefit out of his estate. But Native Law in this respect has been modified by statute. If one of the litigants is a non-native, the action is triable by the Magistrate’s Court which is precluded from applying Native Law. If both parties are natives and they contracted according to Common Law, and one of them became liable under the contract, e.g. for payment of a debt due on a promissory note or for goods supplied by a general dealer, then the action must, in terms of section eleven (1) of Act No. 38 of 1927, be determined according to Roman-Dutch Law [see Magi- dela V. Sawintshi, 1943, N.A.C. (C. & O.), 52], and in that case the heir would be liable only to the extent to which he has benefited by the estate. Where, however, the deceased had incurred a contractual obligation under Native Law, as in the present case, the heir would be liable even if he inherited nothing. The contention advanced by counsel for appellant consequently fails.
We now turn to the question of the remaining two cattle. When Mgqobozi died respondent was a young man but not yet married. He states that after Mgqobozi’s death he went with a man, who has since died, to see appellant about the cattle, and that the latter told him that there had been two increase but that two of the cattle had died. On being questioned appellant could not explain why he had not reported these deaths. Respon- dent goes on to say that he then demanded that appellant replace the cattle alleged to have died, and that the latter promised to do so. Thereafter on his mother’s instructions he removed the five cattle and on this occasion as well as on two subsequent occasions he demanded these as well as the other two cattle, but was put off on the pretext that a permit could not be obtained for the removal of the cattle from the kraal where they were. On one of these occasions respondent was accompanied by Nonqandana
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who supports his evidence. Appellant denies that he informed respondent that there had been two increase and two deaths. He also denies that respondent demanded four cattle from him although he admits that respondent complained to the headman. He maintains that there were no increase or deaths and that he accounted for all the cattle which came into his possession.
Unfortunately the record is silent as to the ages of the five cattle which were removed. Respondent knew that there were five cattle when his father died. If these were the cattle he received from appellant they must have been old and respondent would naturally have wanted to know where the increase were. (There were three female cattle among the five.) On the other hand if some of the cattle, judging from their apparent ages, were born after Manqomntu’s death, respondent would require appel- lant to account for the missing cattle. In either case respondent would not have been satisfied that the five cattle produced were all that he was entitled to. The Native Commissioner was there- fore correct in accepting the evidence that appellant did sav that there had been two increase and two deaths, and since the deaths were not reported appellant is liable, in Native Law, to replace them, as well as the two cattle used by Mgqobozi whose daughter has since married.
One of the grounds of appeal is that there is insufficient proof that the value of the four undescribed and unknown cattle is £10 each. The only evidence on this point is respondent’s statement that he values the cattle at £10 each. This valuation was not challenged either in the plea or during the hearing and, in any case, since the judgment is in the alternative it is open to appellant to pay cattle if he considers that the value is too high.
The appeal is dismissed with costs.
OPINION OF NATIVE ASSESSORS.
Names of Assessors: Mdabuka Mqikela (Lusikisiki), Nobulongwe
Masipula (Flagstaff), Lanyanzima Mvinjelwa (Port St. Johns),
Tolikana Mangala (Libode), Nombekile Libode (Ngqeleni).
Question: A man lends another cattle under Nqoma custom. When he goes to inspect them he finds that two are missing and is told that one was attached by the Messenger of the Court and the other impounded for dowry by his daughter-in-law’s people where it had been sent to be trained. He is promised by the borrower that he will replace these cattle from the dowry of his daughter but he dies before his daughter is married. Is his heir liable to replace these two cattle?
Answer (per Tolikana): He is liable to replace those cattle. Even if his father had not promised to replace them he must still meet his father’s obligations.
(Per Mdakana): 1 support. The heir is liable to pay all his father’s debts. Others agree.
Question: Assuming that a beast, lent to make up a span of oxen, died and the borrower failed to report its death, must the heir of the borrower replace it?
Answer (per Nombekile Libode): The heir must replace because that is his father’s debt, especially as the death was not reported.
Others agree.
Question: If a native buys some sugar and a suit of clothes from a native trader, pays for the sugar, but is still owing the money for the clothes when he dies, is his heir liable for this debt?
Answer (per Lanyanzima): Yes.
Question: Even if the heir inherited nothing?
Answer (per Lanyanzima): He must pay.
(Per Nobulongwe): 1 agree. It is right that he must pay the native trader.
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Others agree.
Question: In the circumstances of the first question, if both the missing cattle had died and the heir had inherited nothing?
Answer (per Tolikana): The heir is obliged to pay because he is bound by his father’s obligations even if he inherited nothing. Others agree.
For Appellant: Mr. Birkett, Port St. Johns.
Respondent: In default.
SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 20/52.
NONGQUNGQU v. MTUTI.
Port St. Johns: 26th May, 1952. Before Sleigh, President, Wilbraham and Thorpe, Members of the Court.
NATIVE LAW AND CUSTOM.
J^ative Appeal Case — Dowry — Claimed by heir — Praa'ice and Procedure — Court not prepared to take point mero moto. Summary: It is common cause that the late N was related by her father to M, the father of plaintiff; that N had a number of children including a girl G; that G had a number of children; that some of her girls have been given in marriage and what remains of their dowries is in the possession of G. It is alleged that neither N nor G ever married and that plaintiff, as heir of M is entitled to the dowries of G’s daughters. The defence is that N married Mabulula and G married L, according to Native Custom and consequently plaintiff had no right to the dowries of the girls; that both Mabulula and L are dead and their heirs are Mbana and Mpandla respectively. The Native Commissioner entered judgment for plaintiff and appellant has appealed.
Held:
(1) That the Native Commissioner’s finding was correct.
(2) That neither N nor G ever married.
(3) That respondent is entitled to the dowry of G’s daughters.
(4) That both heirs were present at the trial and gave evidence
for G and could have intervened had they so desired.
Appeal from the Court of Native Commissioner, Ngqeleni.
Sleigh (President), delivering the judgment of the Court: —
It is common cause that the late Nozinjeyi was allotted by her father to Mtuti, the father of plaintiff (now respondent); that Nozinjeyi had a number of children including a girl, Gcude (now appellant); that Gcude also had a number of children including the girls Nontwanazana, Nomakenqe, Nondobayina, Nomadanga- tya and Sigunza; and that some of the girls have been given in marriage and what remains of their dowries is in the possession of appellant.
It is alleged in the particulars of claim that neither Nozinjeyi nor appellant ever married and that respondent, as the heir of Mtuti, is therefore entitled to the dowries of appellant’s daughters. He claims a declarafio.". of rights in respect of these daughters and delivery of the dowry cattle in appellant’s possession or pay- ment of their value.
The defence briefly is that Nozinjeyi married Mabulula, and ^appellant married Luwaka Kupiso, according to Native Custom,
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and consequently respondent has no right to the dowries of the girls, that both Mabulula and Luwaka are dead and their heirs are Mbana and Mpandle Ngonjana respectively.
The Assistant Native Commissioner entered judgment for plaintiff (respondent) and appellant has appealed on the ground that the judgment is against the weight of evidence and the probabilities..
At the hearing of the appeal Mr. Birkett, who appeared for appellant, stated that he was unable to attack the judgment on its merits. We agree that the evidence supports the Native Com- missioner’s finding that neither Nozinjeyi nor Gcude ever married and consequently respondent is entitled to the dowry of Gcude’s daughters.
Mr. Birkett, however, raised the point that Gcude was in the eyes of the law a minor and could not be sued unassisted especially by her guardian. This point was not canvassed in the Court below. It is a legal objection which should have been taken in the Court below within the time prescribed by Rule 1 (1) of Order Xll of Proclamation No. 145 of 1923 and as the objection was not so taken it could not thereafter be raised without leave of the Court [see Rule 1 (2)]. Mr. Birkett, however, asked the Court to take this point mero moto.
Native Appeal Court Rule 22 provides that the appellant shall be limited to the grounds stated in his notice of appeal. There may be cases in which this Court, which is virtually the highest Court open to native litigants, may, in order to avoid an injustice, take of its own motion a point not raised in the notice of appeal but this is not such a case.
It is alleged in the particulars of claim that appellant was denying respondent’s legal rights to the dowries of the girls and he had to sue her in order to obtain redress. He would have been well advised as a preliminary step to apply to the Court for the appointment of a curator ad li;em but no injustice has resulted from his failure to do so as both the heirs (according to her version), were present at the hearing of the case and gave evidence for her and could have intervened had they so desired.
Mr. Crowther for respondent applied for the increase of the fee for conducting the appeal on the ground that he was involved in considerable work in preparing notes to meet the appellant’s arguments on the merits of the case. The record is not unduly long and no difficult legal issues are involved; moreover Mr. Crowther was the attorney of record and should therefore be familiar with all the facts of the case. The application is therefore refused.
The appeal is dismissed with costs.
For Appellant; Mr. Birkett, Port St. Johns.
For Respondent: Mr. Crowther, Ngqeleni.
NORTH EASTERN NATIVE APPEAL COURT.
N.A.C. CASE No. 34/52.
DUBE V. DUBE.
Pretoria: 9th June, 1952. Before Steenkamp, President; Balk and Smithers, Members of the Court.
COMMON LAW.
Practice and Procedure — A pplication for " Mandament van Spolie " — Disposing of issue of fact on affidavits.
Summary: Plaintiff claimed to have been unlawfully and forcibly ejected from premises by defendant, and defendant filed affidavits alleging that plaintiff had in fact consented to leave, whereupon the Court a quo disposed of the matter on the affidavits, dismissing the application.
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Held: That in a case of this nature the Court must examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be satisfactorily determined without the aid of oral evidence.
Held further: That as the weight of evidence on the dispute of fact in this case is in favour of the respondent, the Native Commissioner was correct in disposing of the matter as he did.
Cases referred to:
Peterson v. Cuthbert & Co., Ltd., 1945, A.D., 219.
Hilleke v. Levy, 1946, A.D., 214.
Nienaber v. Stuckey, 1946, A.D., 1049.
Appeal from the Court of the Native Commissioner, Volksrust.
Balk (Permanent Member): Dissentiente ; —
Just cause having been shown, the late noting of the appeal is condoned.
Application was made in the Court of the Native Commissioner at Volksrust for a “ mandament van spolie ” in respect of certain property situate in the Volksrust Municipal Location (hereinafter referred to as “ the property ”), the applicant (present appellant) averring in his supporting affidavit that he had been in peaceful and undisturbed possession of the property on the 5th February, 1952, when the respondent had wrongfully, unlawfully and forcibly ejected him therefrom.
An interim order for the restoration of possession of the property to the applicant and a rule nisi calling upon the respondent to show cause on the 28th March, 1952, why that order should not be made final were granted by that Court on the 13th idem.
The respondent filed a replying affidavit in which he denied that the applicant had been in peaceful and undisturbed possession of the property. He also denied therein that he had wrongfully, unlawfuly or forcibly ejected the applicant from the property and averred that the applicant had consented to vacate it. The respondent filed other affidavits in support of his contention.
On the return day which was anticipated by the respondent after due notice, the matter came before the Court a quo on the affidavits and that Court, after hearing argument by the respondent’s attorney and the applicant’s reply to its enquiry whether he wished to address it, discharged the interim order on the 24th March, 1952.
It seems to me on examination of the alleged dispute of fact in this case that there is in truth a real issue of fact which cannot be satisfactorily determined without the aid of oral evi- dence, viz., the issue whether or not the applicant finally con- sented to vacate the property; that being so, the Court a quo should have intimated that it could not reach a decision on the affidavits and that evidence was to be led for the proper determination of the matter, see Hilleke v. Levy, 1946, A.D., 214.
I am therefore of opinion that the appeal should succeed and regret that I am unable to concur in the learned President’s judgment.
Steenkamp (President): —
I have read my brother Balk’s judgment and agree that the late noting of the appeal should be condoned. There are two aspects of the case which militate against the appellant, viz., firstly the fact that applicant (now appellant) has waited about five weeks after the alleged eviction before applying for a “ mandament of spolie ” and secondly that applicant has not filed any replying affidavits.
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On the first question I have consulted the case of Nienaber v. Stuckey, 1946, A.D., 1049, in which the question of delay in applying for relief was discussed. In that case the applicant did not act promptly. There was a delay from the 17th September to the 11th January, i.e., nearly tour months. The learned Judge of Appeal remarked as follows; —
“ But whatever the cause of the delay, there is no warrant for holding that the appellant (applicant) thereby lost his remedy. On the contrary, the last passage cited from Wasse- naer (Ch. 13, Art. 1) makes the remedy available for a year [see also Voet (43.16.6 and 7)]. It is true that Savigny on “ Possession ” (pp. 406 et seq.) describes this remedy as possessoriuni siimmariissimum, but I think the adjectival qualification refers not to the period within which the remedy must be claimed, but to the procedure of the Court in deal- ing with the application. 1 express no opinion on the question whether the Court has a discretion to refuse an application where, on account of the delay in bringing it, no relief of any value can be granted.”
This passage, quoted from the judgment of Greenberg (J.A.), does not peremptorily lay down that delay does not prejudice applicant’s application for a spoliatory order, and 1 think the surrounding circumstances of the matter must be considered in the light of any apparent probability that the applicant might have acquiesced in the action taken by respondent, and 1 think this is where the time factor plays a prominent part. One would expect a person who has been evicted from a house to take imme- diate steps to have himself re-instated and not to wait from the 5th February, 1952, to the 13th March, 1952. His failure to take immediate steps in such an important matter certainly prejudices his claim in a spoliatory application. By this 1 do not mean that an action must be instituted immediately and as stated by the Native Commissioner in his reasons for judgment when he discharged the interim order, applicant is not without the remedy of an action.
It is observed that certain allegations are made in the affidavit by respondent and in the affidavits made on his behalf by other persons, and if the contents of these affidavits are the truth, then the applicant cannot succeed in his application. He has not denied these allegations. There is only one affidavit by the applicant and that is the one in support of his application for an interim order. That affidavit is in general terms. The affida- vits made on behalf of respondent give specific details and one would expect applicant to deny these categorically.
The applicant was not represented, however, and I realise that the failure to file a replying affidavit should not be held to be fatal to his case. As already stated, there is evidence that he recognised by implication the right of the respondent to the premises, and in these circumstances it is only necessary to decide if the issue could be decided without viva voce evidence. It is clear from the judgment in the case of Hilleke v. Levy, 1946, A.D., at page 219, quoting Peterson v. Cuthbert & Company, Limited (1945, A.D., 420), that “in every case the Court must examine the alleged dispute of fact and see whether in truth there is a real issue of fact which cannot be satisfactorily deter- mined without the aid of oral evidence I am satisfied that the weight of evidence on the dispute of fact in this case is in favour of the respondent, and the Native Commissioner was correct in disposing of the matter as he did.
The appeal is therefore dismissed with costs.
Smithers (Member): I concur in the judgment of the learned President.
For Appellant; Mr. Michel of Messrs. Helman & Michel, Johannesburg.
For Respondent : Adv. C. J. Mouton, instructed by Messrs. Kuit & Mortimer, Volksrust.
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SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE. No. 21/52.
NYANDA V. KOHLISO.
Kokstad: 9th June, 1952. Before Sleigh, President, Wilkins and van Aswegen, Members of the Court.
NATIVE LAW AND CUSTOM.
Native Appeal Case — Heir — Presumptive heir according to Native Custom — Native Custom — “Custodian" or “keeper” has no authority to sue on behalf or in name of absconding owner of kraal — Presumptive heir’s duty to take action for preser- vation of absconder’s property.
Summary: V, the alleged brother and heir of plaintiff sued defen- dant for delivery of 6 cattle or their value £60 being the value of 6 cattle sold by defendant. It is clear the plaintiff is an absconder and that V is his presumptive heir according to Native Custom; that when plaintiff left for Johannesburg 19 years ago he left 11 cattle with one Mkwayi for safe keeping. Shortly thereafter, defendant falsely represented to Mkwayi that he received a letter from plaintiff instructing him to obtain possession of the cattle. The cattle were handed over and the defendant has since sold 6 and has appropriated the proceeds for his own use.
Held:
(1) That a “custodian” or “keeper” has no authority to
sue on behalf or in the name of an absconding owner of a kraal.
(2) That the presumptive heir’s duty is to take action for the
preservation of absconder’s property.
(3) That if the owner is an absconder his heir has a right
in Native law to represent him in any dispute con- cerning property.
(4) That judgment of absolution cannot be granted at this
stage.
Cases referred to:
Mdontsa v. Fumbalele, 1946, N.A.C. (C. & O.), 68.
Ketabahle v. Mpamba, 1937, N.A.C. (C. & O.), 193.
Qolo V. Ntshini, 1 N.A.C. (S), 234.
Bower v. Divisional Council of Albany, 7 E.D.C. 211. Geldenhuys v. Keller, 1912, C.P.D., 623.
Appeal from the Court of Native Commissioner, Maclear. Sleigh (President) delivering the judgment of the Court; — Valiko Nyanda, the alleged brother and heir of the plaintiff, sued defendant for delivery of 6 cattle or payment of the sum of £60 being the value of 6 cattle sold by defendant. In the particulars of claim it is alleged that the plaintiff left for work on the mines in Johannesburg about 19 years ago and has not been heard of since; that when he departed for Johannesburg he left certain cattle, his property, with one Mkwayi, to look after for him; that shortly thereafter defendant falsely repre- sented to Mkwayi that he had received a letter from the plaintiff instructing him to obtain possession of the cattle from Mkwayi and thus induced the latter to hand over to him 1 1 head of mixed cattle: that defendant has since sold 6 of the cattle and has appropriated the proceeds to his own use; that there are still 6 cattle belonging to the plaintiff in defendant’s possession; that the average value of cattle in the district where the parties reside is £10 per head; and that in view of defendant’s dishonest
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dealings with plaintiff’s property he is not a fit and jwoper person to have or continue to have possession of the plaintiff’s property.
Apart from admitting that the plaintiff went to work in Johannesburg and that the average value of cattle is £10, the plea amounts to a bare denial of the allegations in the summons.
It is clear froon the evidence that the plaintiff is an absconder and that Valiko is his presumptive heir according to Native Custom; and the uncontraverted evidence is that when the plain- tiff left for Johannesburg he left 11 cattle with Mkwayi, being 6 cattle paid by Noveldt as dowry for plaintiff’s sister and 5 other cattle he inherited, that defendant obtained possession of these cattle and sold 6 and that there are still 6 cattle in his possession.
During the course of his evidence Valiko stated that plaintiff stayed with defendant before he left for the mines and that he appointed defendant as his representative to look after his interests while he was away. In view of this evidence, defendant’s attorney applied, at the close of plaintiff’s case, for absolution judgment. This was granted, the Native Commissioner holding that Valiko had failed to establish his right to represent the plaintiff, especially in view of his admission that plaintiff had appointed defendant as his representative. The Native Commis- sioner referred to Madontsa v. Fumbalele, 1946 [N.A.C. (C. & O.), 68], and held in effect that the principles enunciated in that case do not apply in the present case.
Valiko now appeals. The ground of appeal briefly is that the Native Commissioner erred in ruling that the conditions laid down in Mdontsa's case do not apply when the absconder has himself appointed a representative.
In support of his judgment that Native Commissioner quoted the following passage from the judgment in Madontsa’s case, viz: —
“ Secondly the right to sue will be confined to the person who in Native Law has the right to the control of the property, that is, the absentee’s representative according to Native Law and, if the representative is himself an absconder, then the next person in line of succession and so on . . . It is inadvisable to concede the right to other members of the family, if the legal representative is available.”
In that case one of the native assessors stated: “If the elder brother does not take action, a younger brother can claim the property in opposition to the elder brother.” This Court considered that if the elder brother (the heir) was available, it would be inadvisable to comcede a right of action to the younger brother. The Court was there referring not to the appointed representative, i.e. the eye, custodian or keeper of the kraal, but to the legal representative according to native custom.
The “ custodian ” or “ keeper ” of a kraal has certain rights and obligations [see Ketabahle v. Mpamba, 1937, N.A.C. (C. & O.), 193, and Qolo v. Ntshini, 1 N.A.C. (S) 234], but nowhere, as far as 1 am aware, has this Court ruled that he has authority to sue on behalf of or in the name of the absconding owner of the kraal. Unless he is the heir, his authority is limited to the supervision of the affairs of the owner and it is his duty to resist outside illegal interferance with the owner’s property. If there is such interferance native custom probably expects him to report to the owner, or the senior member of the owner’s family, for such action as the occasion may require. In Ketabahle’s case (supra at p. 196) the native assessors expressed the opinion that a “ keeper ” would not be liable to replace any stock disposed of for the benefit of the kraal. But defendant is not the “ keeper ” of the kraal of plaintiff, since the latter had no kraal of his own. If it is correct that defendant was authorised to obtain possession of the cattle for safekeeping he is in the position of a bailee and can resist by legal action outside inter- ference (see Bower v. Divisional Council of Albany, 7 E.D.C. 211 and Geldenhuys v. Keller, 1912, C.P.D. 623). But what is the position if he himself has abused his trust and the owner is an absconder? In that case it is not only the right of the
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presumptive heir of the absconder but his duty to take action for the preservation of the absconder’s property. The dispute is then not between the bailee and a third person but between the bailee and the owner. If the latter is an absconder his heir has the right in native law to represent him in this dispute. The Native Commissioner consequently erred in holding that Valiko has failed to establish his right to represent the plaintiff.
But in this Court it is contended that in any event there is no evidence that defendant’s dealings with the cattle was fraudulent and that in the absence of such evidence this Court should confirm the judgment of absolution. There is uncontra- dicted evidence that defendant disposed of six head of cattle without consulting Valiko as the presumptive heir, as he should have done in accordance with Native Custom. Further, there is the evidence that the eleven cattle which came into defendant’s possession abo'ut 19 years ago have increased to only twelve. There may be an explanation for this, but it can come from the defendant only, and in the absence of such explanation the probability is that he has appropriated the normal increase which could have been expected. Valiko has thus made out a prima facie case and consequently judgment of absolution on this point cannot be granted at this stage of the action.
The appeal is allowed with costs, the judgment of the Court below is set aside and the record is returned to that Court for further hearing.
For Appellant: Mr. W. Zietsman, Kokstad.
For Respondent : Mr. Elliott, Kokstad.
SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 22/52.
UMVOVO V. UMVOVO.
Kokstad: 9th June, 1952. Before Sleigh, President, Cockcroft and Wilkins, Members of the Court.
LAW OF PROCEDURE.
Native Appeal Case — Appeal — Leave ^o appeal to Appellate Division granted — Practice and Procedure — Native Commis- sioner’s decision on the exception cannot be challenged success- fully— Whether the Native Commissioner exercised a proper discretion in deciding the case according to Native Law — Native Custom — Heir liable for obligations of his father — Costs to abide the final determination of the case — Consent for leave to appeal to the Appellate Division of the Supreme Court. Held:
(1) That Native Commissioner’s decision as well as this Court’s decision on the exception cannot be challenged successfully.
(2) That an heir in Native Law is liable for his father’s
obligations.
(3) That point to be taken on appeal is whether the Native
Commissioner exercised a proper discretion in deciding the case according to Native Law.
Application succeeds.
Cases referred to:
Umvovo V. Umvovo, 1, N.A.C. (S), 97 and 190.
Ngqandulwana v. Gomba, 4, N.A.C., 132.
Dlumti V. Sikade, 1947, N.A.C. (C. & O.), 47.
Nompenxela v. Manqomntu, heard at Port St. Johns on 26th May, 1952.
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Application for consent to apply for leave to appeal to Appel- late Division on a judgment of the Southern Native Appeal Court dismissing an appeal from the Court of Native Commissioner, Umzimkulu.
Sleigh (President), delivering the judgment of the Court: —
On 11th February, 1952, this Court dismissed an appeal brought by present applicant against a judgment in favour of present respondent for the sum of £40 and costs. The consent of this Court is now sought, in terms of section eighteen (1) of Act No. 38 of 1927, to an application being made to the Appellate Division of the Supreme Court for leave to appeal.
The points which applicant desires to take on appeal are as follows: —
1. That the judgment of the Native Commissioner’s Court at
Umzimkulu, as confirmed by this Honourable Court on appeal, in dismissing the defendant’s exception to the summons as disclosing no cause of action, was wrong in Law for the reasons: —
(a) That prior to the annexation of the Transkei and East
Griqualand in terms of Act No. 38 of 1877 (Cape) and Proclamation No. 110 of 1879, private individual ownership of land was unknown to Native Custom and it was neither alleged in plaintiff’s claim nor proved by any evidence that any Native Custom in any way affecting such ownership has now become grafted on to Native Law or Custom;
(b) That the registered rights of ownership of the defen-
dant and his father before him in the farm Roodeval in the Umzimkulu district (which district falls within the Annexed Territories above referred to) were acquired by defendant and his father respectively, entirely by operation of Common Law wherefore any agreements affecting such ownership fall to be inter- preted entirely by Common Law principles;
(c) That under Common Law the Exception was sound and
should have been upheld.
2. That after dismissing the aforesaid Exception the decision
of the said Native Commissioner’s Court to apply Native Law and Custom to the trial of the action was wrong in Law and wrongly confirmed on appeal by this Honourable Court.
3. That under Common Law or even under any alleged Native
Custom the defendant’s action in ejecting plaintiff from the farm Roodeval by process of Law issued in pursuance of a judgment of a competent Court cannot and did not give rise to any claim for damages and the decision of the aforesaid Native Commissioner's Court and this Honour- able Court in awarding any damages and costs to plaintiff is wrong in Law.
4. That defendant’s sixth ground of appeal as from the Native
Commissioner’s Court to this Honourable Court raising the plea of res judicata under Common Law in so far as any claim for damages is concerned, should have been upheld.
At the hearing of the application Mr. Zietsman, who appeared for applicant, requested the Court to add a fifth point, namely, that the finding in regard to the payment of rent is against the weight of the evidence. This point is not arguable since the evidence as to the payment of rent is largely hearsay.
By consent it is recorded that the parties in this case are the same as those in the cases Umvovo v. Umvovo reported in 1 N.A.C. (S.) at pages 97 and 190.
The original exception to the summons as disclosing no cause of action attacks the summons on the ground that applicant is
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not liable for any loss which respondent may have suffered as the result of the exercise by applicant of his lawful rights. This is a good defence under Roman Dutch Law for, generally speak- ing, the exercise of a lawful act resulting in loss to another does not give rise to a claim for damages. The same principle applies in Native Law, but when the action is based on contract and one party has fulfilled his part of the contract and the other party has died before fulfilling his part, then his heir is obliged under Native Law to honour the agreement. If it is not possible for the heir to do so or if he repudiates the contract, he is bound to make restitution, if not of the original thing given then in kind \vide Ngqandulwana v. Gomba, 4, N.A.C., 132; Dlumti v. Sikade, 1947, N.A.C. (C. & O.), 47; assessors’ opinions in the present case; and Nompenxela v. Manqomntu, heard at Port St. Johns on 26th May, 1952, not yet reported].
The Native Commissioner in deciding the question whether the summons disclosed a cause of action had to confine himself to the allegations in the particulars of claim. Pleadings in Native Commissioner’s Courts are not generally drawn with that precision that one expects to find in a Supreme Court, but the summons does, in effect, allege that in consideration of certain assistance given by respondent to applicant’s father, Maqayekana, the latter promised that respondent could reside on the farm until his death; that applicant as heir of Maqayekana is liable, in Native Law, for the latter’s debts and obligations (see paragraph 12); that instead of honouring the agreement entered into with Maqaye- kana, as applicant was bound to do under Native Law, he ejected respondent from the farm (see paragraph 10 read with paragraph 12); and that as a result of this ejectment respondent has suffered loss (paragraph 14). Here then is a complete cause of action.
It is, however, alleged in paragraph 1 (b) of the present appli- cation that since applicant’s rights of ownership in the farm were acquired by operation of Common Law, any agreement affecting such ownership falls to be interpreted entirely by Common Law principles. This is a point which was not relied upon in the exception. The submission overlooks the possibility of agree- ments among residents of communally occupied land in regard to the reservation, cutting and division of thatch grass, the location, digging and use of mealie pits, and agreements in regard to buqisa (i.e. the right of a resident of communally occupied land to graze his stock on the reaped lands of other residents). These agreements are governed by principles recognised by Native Custom. The submission also violates the elementary rule relating to the interpretation of contracts, namely, to ascertain and give effect to the intention of the parties. Since the agree- ment between Maqayekana and respondent was verbal, it was necessary to hear evidence of the surrounding circumstances in order to obtain a true picture of the nature of the contract and of what the parties contemplated. If, therefore, the submis- sion is correct, the Native Commissioner would have to rely on evidence to ascertain whether the summons disclosed a cause of action. This he is not permitted to do.
Paragraph 1 (a) of the application was also not relied on in the exception. Here too evidence would be necessary and, in any event, it was not respondent’s case that the principles of private individual ownership have become grafted on to Native Law. His case is that the farm was communally occupied from the start, and that the principles governing communal occupation apply.
In our opinion the Native Commissioner’s and this Court’s decision on the exception cannot be challenged successfully. We consequently refuse our consent to the exception being argued on appeal, especially as the points relied on can be taken under paragraph 2 of the present application.
Paragraph 2 goes to the root of this case. The action was brought under Native Law and applicant’s case was based on Roman-Dutch Law. In terms of section eleven (1) of Act No. 38 of 1927, the Native Commissioner had a judicial discretion to decide the case according to the principles of Roman-Dutch Law
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or Native Law. He applied the latter system. The sole question is whether he exercised a proper discretion. If not, then the plea of res judicata must prevail and the judgment should have been one for defendant (the present applicant). We, therefore, consent to the following point being taken on appeal: —
“ Whether, having regard to all the circumstances of the case, the Assistant Native Commissioner exercised a proper discretion, in terms of section eleven (1) of Act No. 38 of 1927, in deciding the case according to Native Law.”
By consent the costs of this application are to abide the final determination of the case.
NORTH EASTERN NATIVE APPEAL COURT.
N.A.C. CASE No. 115/51.
BALOOI V. BALOOI.
Pretoria: 10th June, 1952. Before Steenkamp, President, Balk and Smithers, Members of the Court.
NATIVE CUSTOM.
Practice and Procedure — Appeal a'.ruck off the roll — Application for re-instatement — Penalising client for Attorney’s negligence. Vindicatory action — Summons containing claim for alternative value of cattle — Action accordingly no! spoliatory but vindi- catory— Action to be taken by owner.
Summary: Plaintiff, a widow, sued defendant for the return of cattle, or their value, which she alleged defendant removed from her possession. She was assisted in the action by her late husband’s brother and heir.
Held: That this was not a case where the client should suffer for his Attorney’s negligence to the extent of being denied access to his Court of Appeal and that the application for re-instatement on the roll should be granted.
Held further: That as an alternative value was claimed in the summons the action was vindicatory and not spoliatory and accordingly vindicatory action for the recovery of the cattle could only be maintained by the actual owner, not by the plaintiff, who merely held the cattle temporarily on behalf of such owner.
Cases referred to:
Rose & Ano. v. Alpha Secretaries, Ltd., 1947 (4), S.A., 511 (A.D.).
Groenewald v. van der Merwe, 1917, A.D., 233.
Xulu V. Xulu, 1936, N.A.C. (T. & N.), 38.
Mbata v. Ntuli, 1938, NA.C. (T. & N.), 187.
Martheze v. Rescue Works Committee of the D.R.C., 1927, C.P.D., 23.
Johnson v. McDonald & Ors., 1941, C.P.D., 235.
Appeal from the Court of the Native Commissioner, Pietersburg.
Balk (Permanent Member): —
This is an application for the re-instatement on the roll of an appeal which was struck off therefrom for want of prosecu- tion.
The appeal was noted timeously and it is clear from the aflBdavit filed in support of the application that the applicant intended
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that the appeal should be prosecuted and was in no way to blame for this not having been done; he left this matter in the hands of his Attorney who, in the aflSdavit referred to above, explains that the prosecution of the appeal escaped his notice owing to the moving of his practice, involving the transfer of an accumulation of files to another office.
It seems to me therefore that this is no more a case in which the client should suffer for his Attorney’s negligence to the extent of being denied access to his Court of Appeal than was Rose and Another v. Alpha Secretaries, Ltd., 1947 (4) 511 (A.D.), see in particular the antepenultimate paragraph on page 519 of the report of the judgment in that case.
The application was accordingly granted.
The plaintiff (present appellant), duly assisted by Matseka Balooi who, according to the evidence, is her late husband’s eldest brother and as such her guardian, brought an action in the Native Commissioner’s Court at Pietersburg iagainst the defendant (present respondent) for the recovery of certain six head of cattle or alternatively their value £75, averring in her particulars of claim that —
“ (1) plaintiff is Shalati Balooi, the widow of the late Jack Balooi and is herein assisted as far as need be by Matseka Balooi, a brother of her late husband;
(2) defendant is Stephen Balooi also a brother of the late
Jack Balooi;
(3) early in March, 1951, there were six (6) head of cattle
in the lawful possession of the plaintiff, which cattle were then taken away from plaintiff’s possession by the defendant without plaintiff’s permission or consent;
(4) notwithstanding legal demand defendant refuses or neg-
lects to return the said six head of cattle to the plaintiff.”
The defendant in his plea admitted that he had removed the six head of cattle concerned from the plaintiff’s place of residence but denied all the other allegations contained in paragraph 3 of the particulars of claim; alternatively he pleaded that he was the owner of those cattle and therefore entitled to remove them. He also preferred the following counterclaim: —
“ Defendant (now plaintiff in reconvention) claims against plaintiff (now defendant in reconvention) as follows: —
1. During the lifetime of plaintiff’s husband Jack Balooi,
defendant lent to the said deceased four head of cattle and the sum of £5, at the said Jack Balooi’s special instance and request.
2. The said four head of cattle and £5 were required
by the said Jack Balooi to pay lobola for his son’s wife, Raisebe.
3. The said Raisebe subsequently deserted Jack Balooi’s
son and the said Jack Balooi thereupon reclaimed the cattle.
4. Notwithstanding numerous requests for the return of
the said four head of cattle, the £5 and one progeny, the said late Jack Balooi refused or neglected to comply with defendant’s request.
5. Before the action could be taken for the return of the
loan, the said Jack Balooi died.
6. Defendant then demanded the return of the loan from
the plaintiff. Plaintiff refused to hand the cattle back.
7. Whereupon defendant drove six head of cattle to his
own kraal. The six head of cattle comprises four head of cattle originally loaned to plaintiff’s husband, 1 beast in lieu of payment of £5, one progeny; wherefore defendant claims that he is the owner of the said six head of cattle.”
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After the plaintilT had closed her case, the presiding Assistant Native Commissioner in the Court a quo, on the application of the defendant’s Attorney, dismissed the summons with costs and thereupon also dismissed the counterclaim with no order as to costs.
The appeal against this judgment is brought on the following grounds; —
“ (1) That the judgment is bad in law in that the Court should have found that the action is one of spoliation and not a vindicatory action.
(2) That the finding of the Court was bad under Native Law
and Custom in that the Court should have found that the plaintiff (assisted by her guardian) has the necessary locus standi in the absence of a male heir to the lapa to prosecute the action whether one of spoliation or vindicatory.
(3) That the decision of the Court in stating that the counter-
claim falls away is bad in law in that the defendant in his counterclaim avers that he lent cattle to plaintiff’s late husband to enable the latter to pay dowry for a wife and thus even if defendant’s contention is established it could not have been contemplated that the same cattle would be returned to him as they would have been handed over to the father of the second wife. As defendant (plaintiff in reconvention) would have lost ownership in them he cannot now ask for a declaration of rights in them and the Court should have given judgment for the plaintiff (defendant in reconvention) on the counterclaim.”
The claim in the instant case was not confined to the recovery of the cattle in question inasmuch as the summons also contained a claim in the alternative for their value so that the action is a vindicatory and not a spoliatory one, see “ The Civil Practice of the Magistrates’ Courts in South Africa ” by Jones & Buckle (Fifth Edition) at page 55 and the authorities there cited.
It emerges from the evidence that the cattle concerned were the property of the plaintiffs late husband (hereinafter referred to as “ the deceased ”) and that the latter’s eldest brother, Matseka Balooi, who assisted her in this action, is the deceased’s heir; further that the plaintiff held those cattle temporarily on Matseka’s behalf so that the question of juristic possession does not arise, see Groenewald v. van der Merwe, 1917, A.D., 233.
It is not altogether clear from the evidence whether or not the cattle in question accrued to the plaintiff’s house and thus consti- tuted house property; but this aspect is immaterial in the present instance since, according to the evidence, the deceased died leaving no male descendants and those cattle thereupon, in either event, formed kraal property and, as is also manifest from the evidence, devolved under the relevant system of Native Law on the deceased’s eldest brother, Matseka. That being so, Matseka was the owner of those cattle when the defendant removed them and therefore only he could maintain a vindicatory action for their recovery, the plaintiff having no locus standi to do so, see Xulu V. Xulu, 1936, N.A.C. (T. & N.), 38, Mbata v. Ntuli, 1938, N A.C. (T. & N.) 187, Martheze v. Rescue Works Committee of Dutch Reformed Church, 1927, C.P.D. 23, and Johnson v. Macdonald & Others, 1941, C.P.D. , 235.
It is also obvious that in the circumstances of this case the counterclaim preferred by the defendant did not disclose a cause of action as against the plaintiff, see Xulu’s and Mbata’s cases (supra), and Counsel for appellant did not, in fact, press the third ground of appeal.
I am therefore of opinion that no good grounds have been advanced for disturbing the well-reasoned judgment of the
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Assistant Native Commissioner concerned and that the appeal should accordingly be dismissed with costs.
Steenkamp (President), I concur.
Smithers (Member): I concur.
For Appellant: Mr. A. Jones of Messrs. Lunnon & Tindall, Pretoria.
Respondent in default.
SOUTHERN NATIVE DIVORCE COURT.
N.D.C. CASE No. 23/52.
SIHIYA V. SmiYA.
Kokstad: 11th June, 1952. Before Sleigh, President.
COMMON LAW.
Native Divora Case — Marriage by Christian Rites — Bigamous
marriage — Marriage declared null and void ab initio — Child —
Illegitimate child is not legitimated by a putative marriage of
parents — Claim for Maintenance refused.
Summary: Plaintiff sued defendant for restitution of conjugal rights. Defendant counterclaimed for (1) an order declaring the marriage null and void; (2) an order declaring her child, Titus to be legitimate; (3) custody of the child; (4) main- tenance for the child; and (5) costs of suit.
At the hearing the claim in convention was abandoned.
Held:
(1) That the marriage is declared null and void ab initio.
(2) That an illegitimate child is not legitimated by a putative
marriage of the parents.
(3) That the claim for maintenance is refused at present.
(4) That the custody of the child is awarded to plaintiff in
reconvention.
(5) That defendant in reconvention pay the costs of this
action.
Cases referred to:
Bam V. Bhaba, 1947, (4) S.A. (A.D.), 804.
Potgieter v. Bellingan, 1940, E.D.L., 264.
Exparte Soobiah & Ors. in re Estate Pillay, 1948, (1) S.A.
(N), 882.
H V. C, 1929, T.P.D., 992.
Lionel v. Hepworih, 1933, C.P.D., 481.
Exparte J„ 1951, (1) S.A. (O). 665.
Native Divorce Court Case.
Sleigh (President): —
Plaintiff, alleging malicious desertion, sued defendant for restitution of conjugal rights failing which a decree of divorce. Defendant alleged that when plaintiff married her he was the lawful husband of Elizabeth Sihiya (born Lindi). She counter- claimed for (1) an order declaring the bigamous marriage between plaintiff and herself null and void; (2) an order declaring her child, Titus Dalewonga, to be legitimate; (3) the custody of the child; (4) maintenance for the child at the rate of 10s. per month; and (5) costs of suit.
At the hearing of the case the claim in convention was abandoned and the trial was thus confined to the claim in reconvention.
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The facts of the case are not in dispute. On 28th April, 1941, defendant in reconvention (herein referred to as plaintiff) married Elizabeth Lindi according to Christian Rites, community of property being excluded. During the same year he seduced plaintilT in reconvention (herein referred to as defendant), and rendered her pregnant. As a result she gave birth to the child Titus in June, 1942. On 7th December, 1943, he married her in the .Magistrate’s Court, Kokstad, Elizabeth then being still alive. Although defendant knew that Elizabeth had been living with plaintiff, she was not aware that he was married to her. Elizabeth worked at Franklin and disappeared in 1943 or 1944. It is not known whether she is still alive. Some time after the marriage defendant left the plaintiff and he then married another woman according to Native Custom. This woman bore him four children.
On this evidence defendant is clearly entitled to judgment in terms of prayers (1), (3) and (5).
In regard to the claim for maintenance, it appears that plaintiff has no property except a hoarse. He is employed as a shop assistant at €2. 10s. per month. Defendant is employed at an hotel at £1. 10s. per month. As plaintiff has to support his children by his customary wife, he is hardly in a position to contribute towards the support of the child Titus. On the other hand defendant is not without means. The claim for maintenance must, therefore, be refused for the present.
In regard to the claim for an order declaring the boy Titus to be legitimate reliance is placed on Maasdorp's Institutes (Vol.
I, 7th Ed., p. 8) where it is stated as follows: —
“ In the case of a bigamous marriage, where both parties contracted in good faith, the children are legitimate. If only one of the parties acted bona fide the children are illegitimate.”
This statement of the law is not supported by the authorities which 1 have been able to consult.
In Bam r. Bhabha [1947. (4) S.A. (A.D.) at page 804] Centlivres,
J. A. fas he then was) says: —
“The Roman-Dutch authorities, which state that the children of a putative marriage are legitimate, refer to those cases where a marriage is solemnised in proper form but the marriage itself is null and void because, e.g. one of the parties was at the time already married to someone else. If in such a case one or both of the parties entered into the marriage ceremony in bona fide ignorance of the already existing marriage, the children of the bigamous marriage were regarded as legitimate.”
In Potgieter i'. Bellingan (1940. E.D.L.. 264). Gane. J. quotes Pothier as follows: —
“ When only one of the parties has in good faith been ignorant of the invalidating impediment rendering null the marriage which she contracted with another party, her good faith suffices to give this marriage, though null, the usual civil effects in respect of the children born therefrom, an i to bestow upon them the rights of legitimate children."
Further, the learned Judge quotes van der Keessel as saying: —
“ Even if the second spouse alone has acted bona fide, having been deceived by the bigamist, a son born of such a union shall also be legitimate.”
In Ex parte Soobiah & Others: in re Estate Pillay (1948) (1) S.A. (N) at page 882. it was stated that the genuine belief of one party that the marriage entered into is valid and binding is sufficient to entitle the Court to regard the union as a putative marriage, and the children as leg'timate.
In H. V. C. (1929, T.P.D. 922 — the full report is not available), it was held that the issue of a putative marriage is legitimate and that our Courts will, in a proper case, so declare such an issue, provided one of the putative spouses bona fide believed
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the marriage to be lawful and provided further that the rights of other persons, not parties to the proceedings, are not prejudiced by such declaration. [See also Lionel v. Hepworth, 1933, C.P.D., 481; Ex parte L (also known as A) 1947 (3) S.A. (C), 50; and Potgieter’s case supra.]
It is clear that the union contracted by the parties on 7th December, 1942, is a putative marriage and, on the authority of the cases cited, Titus would be legitimate if he had been born during the subsistence of that marriage. How does that fact that he was born before the marriage affect his position? It is clear that an illegitimate child becomes legitimated by the marriage of the parents, subsequent to its birth, and, on the authority of Ex parte J. [1951 (1), S.A. (O), 665], this is so even if it were an adulterine child. The birth of such child can be registered in the birth register as the issue of its parents but only if the subsequent marriage between them was lawful. (See Section 10 of Act No. 17 of 1923, as amended by Section 4 of Act No. 7 of 1934.) This seems to Indicate that an illegitimate child is not legitimated by a putative marriage of its parents. However, I preter to leave this question open, firstly, because the Roman-Dutch Law authorities dealing with this matter are not available, and secondly, because I do not intend to make an order in terms of prayer (2) as such order would affect the heritable rights of the children of the customary union (if it is valid) and they are not parties in this action. It is stated that the first wife had no children.
It is ordered that the marriage between Rosey Sihiya (born Dlamini) and Christopher Sihiya celebrated on the 7th December. 1943, at Kokstad, m the district of Mount Currie, is declared null and void, ab initio, that the Registrar of Births, Marriages and Deaths, Pretoria, is authorised to make a note of this order against the entry in his Register and that defendant in recon- vention pay the costs of this action. The custody of the child Titus Dalewonga is awarded to plaintiff in reconvention.
Plaintiff: In default.
For Defendant: Mr. F. Zietsman, Kokstad.
SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 24/52.
NATAL V. BODLIYASE AND ANOTHER.
Kokstad: 12th June, 1952. Before Sleigh, President, Wilkens and Van Aswegen, Members of the Court.
COMMON LAW.
Native Appeal Case — Damages for assault — Practice and Proce- dure— Maxim pari delicto — Maxim volente non fit injuria — Assaidt has been established by the evidence.
Summary; Appellant sued respondents for the sum of £203. 16s. 6d. as damages for assault. The respondents deny the assault and plead that on the day in question an affray took place in which appellant and respondents voluntarily participated. The Native Commissioner held that appellant was in pari delicto and was not entitled to damages.
Held:
(1) That the assault has been proved.
(2) That the maxim in pari delicto is applicable to contracts
and has no place in the realm of delicts.
(3) That it is assumed that the respondent intended the
maxim volente non fit injuria to apply in their pleas.
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Appeal from the Court of Native Commissioner, Umzimkulu.
Sleigh (President), delivering the judgment of the Court: —
Appellant sued respondents the one paying the others to be absolved for the sum of £203. 16s. 6d. as damages for assault and alleged that on 6th August, 1950, the respondents acting in concert and with a common purpose wrongfully assaulted appel- lant and inflicted various wound; which are described. He claims that he suffered permanent injury. Appearance was entered by Mr. .Attorney B. van Niekerk on behalf of six of the respondents and by Mr. Attorney D. A. Jennings on behalf of the remainder. They filed virtually identical pleas in which the assault is denied and it is alleged that on the day in question an affray took place in which appellant and respondents voluntarily participated. Appellant was. therefore, in pari delicto with respondents and other participants in the said affray and conse- quently he is debarred from claiming damages for any injuries which he may have sustained in the course of the affray.
At the outset of the trial it was agreed that the liability of respondents be decided first and that if liability is established, evidence of damages suffered be led later. The Assistant Native Commissioner, after hearing evidence from both sides, held that as appellant received his injuries as the result of participating in a fight, he was in pari delicto and was not entitled to damages and entered judgment for defendants. If appellant and his witnesses are to be believed he and his party where assaulted with- out provocation while they were peacefully walking in the location, but the evidence goes to show that they started the trouble and were originally the aggressors. They were chased by the respondents and when they got near the dipping tank they faced the respondents and a fight took place during which appel- lant received numerous injuries including a stab wound in the knee.
The maxim in pari delicto patior est condictio defendentis is a principle of law which curtails the right of persons, who have entered into an illegal or immoral contract, to avoid the conse- quences of the performance or part performance of such contract (see Jajbhay v. Cassim, 1939, A.D., 537). The doctrine is appli- cable in the law of contracts and has no place in the realm of delicts. It is significant that none of the works on torts to which I have been able to refer even mentions this principle. However, it is also a principle of law that no man can complain of an act which he has expressly or impliedly assented to. This principle is commonly expressed by the maxim volenti non fit injuria and we assume that this is what the respondents intended to convey in the pleas. In order to establish the defence that the plaintiff consented to run the risk of harm, it is necessary to show not merely that the plaintiff had knowledge of the danger, but also that with a full appreciation of its nature and extent he volun- tarily elected to encounter it. The essential elements are know- ledge, appreciation and consent (see McKerron's Law of Delict, 3rd Ed., pp. 22-3).
In the present case respondents do not dispute that the injuries suffered by appellant were inflicted by one or more of them, but they contend that they are not liable because appellant and his partv voluntarily took part in the fight.
The onus was on them to prove their plea of volenti non fit injuria. Appellant and his witnesses state that they were armed with sticks, whereas respondents were armed with assegais, battle axes and swords. This respondent No. 13 denies. He asserts that they were armed with sticks only and that an assegai was taken from one of appellant’s party. Appellant states that he was stabbed with an assegai by respondent No. 4 and was struck with a battle axe by respondent No. 6. This is not denied by these respondents. Appellant’s witness, Zephania, states that he was struck with a sword on the head and suffered a fracture on the forearm and a fracture on the leg below the knee. This indicates
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that heavy or sharp instruments must have been used. His other witness, Mtshato, says “ that the respondents’ party were armed with swords, assegais and battle axes, and it is not disputed that seven out of the eleven in appellant’s party were in hospital for considerable periods; whereas according to the evidence the injuries received by respondents’ party were of a superficial nature. We consequently reject the evidence for respondents that they were armed with sticks only.
The onus was on respondents to prove that appellant’s party knew that respondents were armed with dangerous weapons, and with this knowledge consented to run the risk of injuries by these weapons. It is improbable that appellant’s party was aware that respondents’ party was so armed, otherwise they would have escaped while they had the opportunity to do so, and, in any event, this Court cannot assume — there being no evidence on the point — that they consented to take the risk of being struck with such weapons. Respondents have therefore failed to establish their defence and consequently the Native Commissioner should have found that they committed an assault upon appellant and his party.
The appeal is consequently allowed with costs, the judgment of the Court below is set aside and the record is returned to that Court for further hearing.
For Appellant : Mr. F. Zietsman, Kokstad.
For Respondent: Mr. Walker, Kokstad.
SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 25/52.
TYALITI V. SHENXANE.
Umtata: 19th June, 1952. Before Sleigh, President, Mundell and Nel, Members of the Court.
COMMON LAW.
Native Appeal case — Damages for adultety and pregnancy — Marriage by civil rites — Rights of action flows from the marriage — No Native Law involved — Damages should be awarded according to Common law.
Summary: Plaintiff sued defendant for 5 head of cattle or their value, £40, for damages for adultery and pregnancy of his wife. Plaintiff married his wife according to civil rites. The Native Commissioner realised this too late but refers to it in his reasons and states that the action should have been brought under common law.
Held:
(1) That no question of Native Law is involved and conse-
quently the Native Commissioner had no discretion to apply Native Law.
(2) That damages should have been awarded on the basis
allowed under Common Law.
(3) That plaintiff will only be entitled to ' damages for
contumelia inflicted upon him.
Cases referred to:
Notenjwa v. Mafeke, 1940, N.A.C. (C. & O.), 146.
Nazo V. Lubisi, 1946, N.A.C. (C. & O.), 18.
Bukulu V. Cebisa, 1946, N.A.C. (C. & O.), 45.
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Appeal from the Court of Native Commissioner, Cala.
Sleigh (President), delivering the judgment of the Court: —
This is an appeal against a judgment for plaintiff for five head of cattle or their value, £40, and costs as damages for adultery with, and the pregnancy of, plaintiff’s wife.
The adultery has been established and on this score the appeal fails. It appears, however, that plaintiff married his wife according to civil rites. The Native Commissioner unfortunately realised this too late, but he refers to it in his reasons and states that the action should have been brought under Common Law, quot- ing Nontenjwa v. Mafeke [1940, N.A.C. (C. & O.), 146], as his authority. Apparently, as a result of his remarks, application is now made to argue the following additional grounds of appeal: —
“ 1. That the plaintiff having been married by Christian Rites it was incompetent for him to sue for damages for adultery according to Native Custom. That it is clear from the evidence and from the fact that he claimed five head of cattle or their value that he was claiming according to Native Custom and the Court accordingly erred in granting judgment in his favour.
2. That in any event, as the plaintiff was not entitled to damages in the amount fixed by Native Custom, he was bound to prove his damages in order to succeed and he failed to do this the Court erred in giving judgment in his favour.”
Mr. Tsotsi who appears for plaintiff (respondent) does not oppose the application which is granted.
in this Court it is contended that the Native Commissioner had a discretion to decide the case either according to Romatv- Dutch Law or according to Native Law, that plaintiff had in fact a dual remedy. We cannot agree with this contention. Plaintiff is entitled to obtain redress for the injury suffered. His right of action flows from the marriage. If he had been living with his wife in concubinage he would have had no right of action. The action is entirely based on the unlawful violation of his marriage rights. Take the marriage away and he would have no right of action. Since it was a civil marriage we must look to the Common Law to ascertain what redress, if any, plaintiff is entitled to. No question of Native Law was involved and consequently the Native Commissioner had no discretion to apply Native Law to the case (see Nontenjwa s case supra and the cases there quoted.)
Under Common Law the injured husband is entitled to damages on the ground of loss of consortium and for contumelia inflicted upon him [see Nazo v. Lubisi, 1946, N.A.C. (C. & O, 18]. The Native Commissioner should not therefore have awarded the plaintiff the customary fine for adultery coupled with pregnancy, but should have awarded damages on the basis allowed under Common Law, having regard to all the circum- stances of the case [see Bukulu v. Cebisa, 1946, N.A.C. (C. & O.),
In the present case there has been no loss of consortium, since plaintiff’s wife has not left him and he has no intention of divorcing her. Plaintiff will therefore be entitled to damages only in respect of the contumelia inflicted upon him, and this, the Native Commissioner admits, has not been seriously explored.
It thus becomes necessary to return the case to the Native Commissioner so that this aspect of the case could be investi- gated.
The appeal is allowed with costs, the judgment of the Court below is set aside and the record is returned to that Court for evidence of the amount of damages suffered by plaintiff under Common Law, and for a fresh judgment.
For Appellant: Mr. Muggleston, Umtata.
For Respondent: Mr. Tsotsi, Lady Frere.
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SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 26/52.
DLWENGU V. DLWENGU.
Umtata: 23rd June, 1952. Before Sleigh, President, Mundell and Nel, Members of the Court.
NATIVE LAW AND CUSTOM.
Native Appeal Case — Native Custom — Ubulunga cattle claimed from heir in qadi house — Herbalist acquire stock in his own name and it belongs to his great house.
Summary: Plaintiff is the heir in the qadi house of the late D and defendant is the heir in the great house. When D died there were 22 cattle, 87 sheep, 14 goats and two horses at his kraal. These are claimed by M, the qadi wife, on behalf of her minor son, the appellant who, duly assisted sued defendant for (1) payment of the sum of £45, being proceeds of sale of wool, and (2) a declaration of rights in regard to the cattle, sheep, goats and horses.
The defence is that the stock belonged to D’s great house and they are therefore defendant’s property.
The Native Commissioner dismissed claim (1) and in regard to claim (2) he declared plaintiff to be the owner of 12 cattle and granted absolution from the instance in respect of sheep, goats and horses. Defendant has appealed.
Held:
(1) That the cattle acquired by herbalist belong to his great
house.
(2) That plaintiff has failed to satisfy the Court which parti-
cular cattle belonged to his mother’s house.
(3) That the Native Commissioner was correct in giving an
absolution judgment in regard to the sheep, goats and horses.
Cases referred to:
Oliver’s Transport v. Divisional Council, Worcester, 1950 (4), S.A. (C.), 537.
Appeal from the Court of Native Commissioner, Mqanduli.
Sleigh (President), delivering judgment of the Court: —
Plaintiff is the heir in the qadi to the great house of the late Dlwengu and defendant is the heir in the great house. When Dlwengu died there were 22 cattle, 87 sheep, 14 goats and 2 horses at his kraal. These are claimed by Mamqwambi, the qadi wife, on behalf of her minor son, the appellant who, duly assisted, sued defendant for (1) payment of the sum of £45 being proceeds of the sale of wool of the sheep, and (2) a declaration of rights in respect of the cattle, sheep, goats and horses.
The defence is that the stock of which there are at present 24 cattle, 78 sheep, 14 goats and 2 horses, belonged to the late Dlwengu’s great house and that they are therefore defendant’s property.
The Assistant Native Commissioner dismissed claim (1). In regard to claim (2) he declared plaintiff to be the owner of 12 head of cattle and granted absolution from the instance in respect
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of the sheep, goats and horses. Defendant was ordered to pay costs and he has appealed.
During the course of her evidence Mamqwambi stated that four of the cattle, which she described, are her ubulunga cattle. The appeal is against the judgment in respect of 8 of the 12 cattle, against the judgment of absolution and against the order as to costs.
The Native Commissioner has given no judgment in regard to the balance of the cattle claimed. As there is no cross- appeal the judgment in this respect will be left as it is.
It appears from the evidence that Dlwengu was a herbalist and lived at his father’s kraal where Mamqwambi was his pupil. He quarrelled with his father and then established his own kraal. Mamqwambi as well as the other novices accompanied him. She completed her training and later he married her as his third and qadi wife. Thereafter they both practised at the same kraal. She states that besides the four ubulunga cattle, she trained eight persons whom she names and received a beast from each as her fee. She did not identify these cattle or their increase. In fact she states that she is unable to do so, nor is there any other evidence to identify them.
Now it is obvious that the evidence does not justify a judgment for plaintiff in respect of 8 of the 12 cattle. Before defendant can be expected to challenge Mamqwambi’s evidence he must know what cattle she claims.
There was an onus on plaintiff to satisfy the Court as to which particular cattle belong to his mother’s house. This he has failed to do in so far as the 8 cattle are concerned. To this extent the appeal succeeds.
In regard to the absolution judgment there is no evidence as to how the goats and horses were acquired. The only evidence in favour ot plaintiff is that they run at the kraal where his mother resides. But Dlwengu also resided at that kraal and it is not disputed that he acquired stock during the course of his profession as a herbalist. Any stock so acquired would belong to his great house. In so far as the sheep are concerned, it is common cause that they are earmarked stump and skey left ear. Mamqwambi says that this is the mark of her house, but she admits that no sheep were allotted to her by her husband, and there is no evidence that she ever earned any. If all the sheep at the kraal bear the same mark, as Mamqwambi says, how were the sheep earned by her husband marked? The evidence is too vague altogether. The Native Commissioner was therefore correct in giving a judgment of absolution in respect of the sheep, goats and horses.
It is contended on behalf of defendant that on the evidence, he was entitled to a full judgment. This would be so if the Native Commissioner believed the evidence for the defence and rejected that for plaintiff [see Oliver’s Transport v. Divisional Council, Worcester, 1950 (4), S.A. (C.), 537]. Defendant did not prove that the sheep, goats and horses belonged to his mother’s house. In fact the Native Commissioner says that the claim for the sheep, goats and horses was entirely overlooked by both parties, and no evidence was adduced in respect thereof. Defen- dant is therefore not entitled to a full judgment.
In regard to the appeal against the order as to costs. The trial lasted two days and judgment was then reserved. Counsel are agreed that in view of the plea, plaintiff had to come to Court to establish his claim to the ubulunga cattle and that he was therefore entitled to costs on the basis that the trial would have lasted one day and that defendant is entitled to appearance costs for one day and for taking reserved judgment which fee we are informed, amounts to 10s. As appearance costs are equally divided plaintiff will be awarded costs up to and including 15th October, 1951, the date the case was set down for trial, less the sum of 10s. being the fee for taking reserved judgment.
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The appeal is allowed with costs and the judgment of the Court below in respect of claim (2) is altered to read : —
“ Plaintiff is declared to be the owner of the four ubulunga cattle. Absolution from the instance in respect of the 8 cattle and the sheep, horses and goats. Defendant is ordered to pay costs up to and including the 15th October, 1951, less 10s.”
For Appellant: Mr. Hughes, Umtata.
For Respondent : Mr. Muggleston, Umtata.
SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 27/52.
XALISILE V. MHLOHLENI.
Umtata: 23rd June, 1952. Before Sleigh, President, Mundell and Nel, Members of the Court.
NATIVE LAW AND CUSTOM.
Native Appeal case — Interpleader action — Ownership of cattle did not vest in appellant at time dowry was paid, nor when judgment H’Ui given against the debtor — No specific cattle claimed — Marriage by Native Custom — Marriage dissolved by restoration of dowry.
Summary: H (the claimant) married M by Native Custom and paid dowry to K (the debtor). V (appellant) claimed that he was the person entitled to M’s dowry. He sued K for delivery of the dowry and obtained judgment. When M. became aware that the dowry would go to V she deserted her husband and K then returned the dowry to H in whose possession the cattle were attached. The Native Commissioner declared the cattle not executable and appellant has appealed.
Held:
(1) That the ownership of cattle did not vest in appellant
at time dowry was paid.
(2) That ownership did not vest in appellant when judgment
was given against the debtor.
(3) That union was dissolved by restoration of dowry.
(4) That no specific cattle were claimed.
Cases referred to:
Mayekiso v. Mapitsha, 1945, N.A.C. (C. & O.), 55.
Dlumti V. Sikade, 1947, N.A.C. (C. & O.), 47.
Appeal from the Court of Native Commissioner, Mqanduli.
Sleigh (President), delivering the judgment of the Court: — No evidence was led in this interpleader action but the parties are agreed on the following facts: —
Heshe Mhlohleni (herein referred to as claimant) married Mbuku according to Native Custom and paid dowry for her to Kutu Xalisile (herein referred to as the debtor). Vatile Xalisile (now appellant) claimed that he was the person entitled to Mbuku’s dowry. He sued the debtor for delivery of the dowry and obtained judgment for 7 cattle or their value. When Mbuku became aware that the dowry would go to appellant she deserted her husband and the debtor then returned the dowry to claimant in whose possession the cattle were attached.
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On these facts the Assistant Native Commissioner declared the cattle not executable and appellant has appealed on the following grounds; —
1. That as respondent had a judgment for the specific cattle
claimed, Kutu (the judgment debtor), could not give claim- ant title to the cattle.
2. That as respondent had been declared the dowry eater
and entitled to the dowry, any claim by the husband for their return must be directed to him more particularly as desertion of wife from husband was admitted to have been for a maximum period of three weeks.
3. Respondent by the judgment of the Court has been deprived
of his elementary rights to ascertain —
(a) whether in fact desertion did take place;
(b) whether the wife had just cause to desert;
(c) whether a putuma was effected by the husband; and
(d) what cattle were returnable, if any, on desertion.
The record does not say so but it appears to be common cause that Mbuku was living at the debtor’s kraal at the time of her marriage and that she returned to that kraal.
In regard to the first ground of appeal it is sufficient to say that appellant did not obtain judgment for specific cattle.
As to the third ground, it is clear from the admitted facts that Mbuku deserted without cause and failed to return. At any rate the return of the dowry to claimant dissolved the union. While Mbuku and the debtor may have conspired to defraud appellant of his rights, it cannot be assumed that claimant was a party to the conspiracy.
The summons follows substantially the usual wording of an interpleader summons. In the present summons the Court is asked to determine whether the cattle attached by the Messenger and claimed by claimant be or be not liable to execution. Now the cattle will be executable, firstly, if they are the property of the debtor, but this appellant presumably denied in the case against the debtor. In any event, the debtor had parted with ownership at the time of the attachment. The cattle are also liable to attachment if they are the property of appellant. The correct approach to the case is therefore whether the ownership in the cattle had vested in appellant before they were delivered to claimant
It is customary to pay dowry to the head of the kraal at which the girl is found. If the head of this kraal is not the guardian of the girl, he should, if it is at all possible, report the proposed marriage to the guardian and obtain instructions. If he then gives the girl in marriage he acts as agent for the guardian, and the ownership in the cattle will vest in the latter as soon as all the requisites of a customary union are fulfilled. In the present case the debtor did not act as agent for appellant, since he denied appellant’s right to the girl’s dowry. The owner- ship therefore did not vest in appellant at the time the dowry was paid, nor did it vest in him when judgment was given against the debtor, because the judgment was not for delivery of specific cattle [see Mayekiso v. Mapitsha, 1945, N.A.C. (C. & O.), 55].
In regard to the second ground of appeal, it is well established Native Law that when a wife has deserted her husband the latter is entitled to sue the person to whom dowry was paid for the return of his wife or, failing her return, for the restoration of the dowry paid for her [see Dlumti v. Sikade, 1947, N.A.C. (C. & O.), 47, and the cases there quoted]. However, before he can sue he must putuma his wife and it is then open to the dowry holder to keta the dowry or the latter may dissolve the union by returning the dowry before the woman is putumaed. This is what happened in the present case.
It is, however, contended that claimant should have demanded the return of his wife or restoration of the dowry from appellant as the Court b»d held that the latter was entitled to the dowry.
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Claimant was not a party to that action, and, since at the time of Mbuku’s desertion, the dowry was still in the possession of the debtor he was the only person legally liable to restore it. If claimant had demanded it from appellant he might have been met with defence that appellant had never received the dowry.
The appeal consequently fails and is dismissed with costs.
For Appellant: Mr. Hughes, Umtata.
For Respondent: Mr. Knopf, Umtata.
SOUTHERN NATIVE APPEAL COURT.
N.A.C. CASE No. 28/52.
ZIBI V. ZIBI.
Umtata: 24th June, 1952. Before Sleigh, President, Mundell and Nel, Members of the Court.
NATIVE LAW AND CUSTOM.
Native Appeal Case — Native Custom — Institution of heir, farmalir ties have been proved— Child — Adoption of according to Native Imw — Evidence — Letter clearly inadmissible — Practice and
Procedure — In an enquiry Native Commissioner’s duty to call witnesses — Marriage by Christian Rites — The second proviso to Section 2 of Proclamation 142 of 1910 discussed — Proviso preserves not only rights of parties to the marriage but also the consequences flowing therefrom.
Summary: In an enquiry two claimants, namely, appellant and respondent claim two lots registered in the name of the late P., Engcobo District. The Native Commissioner found for respondent and appellant has appealed.
Held:
(1) That the formalities concerning the institution of an heir
have been complied with.
(2) That there can be an adoption of a child in Native Law.
(3) That in an enquiry it is the duty of the Native Commis-
sioner to call witnesses.
(4) That the second proviso to Section 2 of Proclamation
142 of 1910 preserves not only the rights of parties to the marriage but also the consequences flowing there- from.
Cases referred to:
Mkanzela v. Rona, 1, N.A.C. (S), 219.
Sobozo V. Notshokovu, 1, N.A.C., 198.
Kwaza v. Nofesi, 2, N.A.C., 17.
Zondani v. Dayman, 2, N.A.C., 132.
Mbeki v. Mbeki, 1934, N.A.C. (C. & O.), 49.
Estate Tontsi v. Executor of Estate Nchela, 21, S.C., 650. Majwambe v. Majwambe, 4, N.A.C., 123.
Dingiswayo v. Dingiswayo, 4, N.A.C., 124.
Tetani v. Tetani, 1939, N.A.C. (C. & O.), 61.
Njobe V. Njobe & Dube, N.O. 1950 (4), S.A. (C), 545.
Appeal from the Court of Native Commissioner, Engcobo.
Sleigh (President) delivering the judgment of the Court: —
The late Patrick Zibi is the registered owner of Garden Lot No>. 51 and Building Lot No. 34, Tora Location, Engcobo District. His only son, Lennox, predeceased him and his widow, Dorcas, who occupied the lots after his death, died in 1944. There are now two claimants to the lots, namely, Gladstone
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Zibi (herein referred to as appellant) and John Zibi (respondent) on behalf of the minor, Ndodomkosi.
It is common cause that the late Ncanywa Zibi married twice according to Christian Rites and had four sons by his first wife and two by his second wife. The sons are, in order of birth, (1) Patrick, (2) Alfred, (2) Joseph, (4) Peter, (5) Soga and (6) John (respondent). Patrick had only one wife, not two nor is Soga his son, as the Native Commissioner says in his reasons. He married this wife according to civil rites, and, as I have already stated, his only son predeceased him. Alfred was an interpreter in Umtata and died in 1944. He had five sons, namely, Stanley, Gladstone (appellant) and three others. Stanley and his only son are both dead. Joseph, Peter and Soga are also dead. Soga died in 1942 and his eldest son is the boy Ndodomkosi. The following genealogical tree illustrates the relationship: —
Ncanywa
Patrick (D) Alfred (D) Joseph (D) Peter (D) Soga (D) John (respdt.)
Lennox (D) Stanley (D) Gladstone (appellant) I 3 others
Frank (D) Ndodomkosi Another
As Patrick left no male descendants his heir, under the Table of Succession, would be appellant; but the Native Commissioner, in an estate inquiry, found that at a properly convened and conducted meeting Patrick instituted Soga as his heir and that consequently the two lots devolve upon Soga’s heir, Ndodomkosi. From this finding appellant appeals on several grounds and, at the hearing of the appeal, leave was granted to argue additional grounds.
Before dealing with the grounds of appeal I must refer to the manner in which this appeal was noted. The finding was delivered on 19th December, 1951. The notice of appeal is dated 8th January, 1952, and was received by the Clerk of the Court on the 9th January, but security for respondent’s costs was not lodged until the 18th January. The Rules of the Court were therefore not complied with. The attention of appellant’s attorney is drawn to Rule 5 (3) of Government Notice No. 2887 of 1951.
The first question for decision is whether Soga was instituted as heir and, if so, whether the institution was lawful.
It is common cause that Patrick was a minor chief of the Hlubi tribe and headman of Tora location, and that about 1926 and after the death of Lennox he called a meeting of relatives and residents of the location which meeting was attended by Magamdeli Mkatshane of Nqamakwe, Lunda Ndondo of Tsomo and Silwanyana Ntliziyo of St. Marks District. They are also chiefs of the Hlubi tribe. The parties, however, disagree as to the purpose of the meeting. Respondent and his witnesses say that the object of the meeting was to appoint an heir for Patrick who was sickly and whose son had died. Respondent states that Patrick complained at the meeting that he had written to Alfred and Joseph, who were employed at Umtata and Mqanduli respectively, asking them to give him a son but they had refused, and that Patrick then announced that he was adopting Soga as his heir. Respondent as well as other witnesses say that Alfred’s letter in reply was read out at the meeting. It appears, however, that although respondent was at the time an adult he did not actually attend the meeting as he was still uncircumcised.
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Bonga Dlwati and Charles Twayise support respondent’s evidence in regard to the announcement made by Patrick. It appears from their evidence that Peter and Soga were present at the meeting but not Alfred and Joseph.
Appellant admits that he has no personal knowledge of what transpired at the meeting. Henry Stokwe, who was a herd boy at Patrick’s kraal, says that he heard that Patrick had said that Soga was to act for him as head, but that he never heard that Soga was also to be the heir. Ebenezer Sobantu, who attended the meeting, says that Patrick stated that he wanted one of his younger brother’s sons as a son but that he was told that they were still being educated. He says that Patrick then said, “ Hlubis, here is a child of my father (meaning Soga) and there- fore he must be my deputy ”. He goes on to say that Patrick mentioned that Soga was to succeed him as headman.
Alice Zibi, a daughter of Patrick, states that she was in Johannesburg in 1926 and that although she heard it said in the location that Soga had been adopted as heir, neither her father nor her mother informed her of the adoption.
The evidence of Ebenezer and Alice goes a long way to support respondent’s version. It is clear from Ebenezer’s evidence that Patrick wanted an heir and with this object in view approached his brothers Alfred and Joseph. Their excuse that their children were still being educated is unacceptable since one of their sons could have been instituted as heir even if he were still at school. There is evidence that they suspected that Lennox had been killed by witchcraft and they feared that a son given to Patrick might suffer a similar fate. This is a more reasonable explana- tion for their refusal to part with a son.
The evidence that the object of the meeting was merely to appoint a deputy headman for Patrick is also unconvincing. If this were the object of the meeting, there was no necessity to call the meeting at all. The same result could have been obtained by notifying the Native Commissioner that on account of Patrick’s illness Soga would represent him as headman. If, on the other hand, the object was to institute Soga as heir, the presence of the chiefs from other districts is explained, because the institution not only affected the succession to Patrick’s estate but also altered the line of sucession to the chieftainship — a matter which affects the tribe. The evidence therefore supports respondent’s contention. Moreover, the fact that Soga lived at Patrick’s kraal and presumably administered Patrick’s estate without objection by the rest of the family is further proof that he was instituted as heir. We consequently agree with the Native Commissioner that the institution of Soga as heir of Patrick has been proved.
Appellant, however, contended that it was not competent for Patrick to institute Soga, the son of Ncanywa’s second wife, as heir to Ncanywa’s first wife. This contention is not correct. In Mkanzela v. Rona [1 N.A.C. (S), 219], it was stated that the institution of an illegitimate child as heir must not have the effect of disinheriting the legitimate male issue. That case dealt with the institution as heir of an illegitimate child by an unmarried woman, but the principle is the same where a father seeks to institute a junior son as heir in a house in which there is already an heir. Thus, if there is no heir in the right hand house it is competent to take a son from the great house and institute him as heir in the heirless hou.se (see Sobozo v. Notshokovu, 1 N.A.C. 198); but if there is an heir in the great house and none in the qadi to that house, it would be contrary to custom to institute another son as heir to the qadi house. (See Kwaza v. Nofesi, 2 N.A.C., 17.) In the present case Ncanywa could not have appointed Soga as his heir, because this would have had the effect of disinheriting Patrick and his brothers; but there was nothing to prevent Patrick, who had no surviving male issue, from instituting as his heir one of his brothers or one of their sons as he originally intended to do.
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It is contended further that the institution was invalid because Alfred and Joseph were not present at the meeting. This is not Patrick’s fault. He is required by custom to call to the meeting all his relatives. The evidence goes to show that he wrote to Alfred and Joseph and that he received replies from them. He had no means of compelling attendance at the meeting.
Further, it is contended that since Patrick was married to his wife according to civil right the adoption of Soga according to Native Law and Custom was unlawful and therefore null and void. There are two observations I wish to make in regard to this contention. Firstly, the marriage has nothing to do with the adoption since it is competent for an unmarried person to adopt a child. Secondly, this was not an ordinary adoption as is understood by the word.
A native is sometimes given an unwanted or destitute child which he will bring up and regard as his own, but such child acquires no heritable rights under native law unless it is instituted as heir with all the formalities required by custom. But it is hardly likely that a native would institute an unrelated child as his heir. Among natives it is a very serious matter for a man to die without a son, since such son, as heir, has religious functions to perform. In order to avoid this catastrophe a native would marry other wives in order to produce a son and, if this failed, he would appeal to his relatives for a boy who would then be instituted as heir with the customary formalities. (Zondani v. Dayman, 2, N.A.C., 132.) The person so instituted is regarded as heir and succeeds to the house in which he has been placed to the exclusion of ail others. He loses his right of succession to the house or family from which he was taken [see Mbeki V. Mbeki, 1934. N.A.C. (C. & O.), 49]. The person instituted as heir need not be a child as the present case shows. The institution of an heir in an heirless house or family is a custom peculiar to natives, and it is not necessary to comply with the statutory provisions of the Adoption of Children Act in order to confer heritable rights on the person instituted. The contention that the institution of Soga as heir is invalid there- fore fails.
It appears from the evidence that the Native Commissioner refused to admit as evidence, a letter written by Peter to appellant’s brother, Livingstone, in 1945, in which the latter was informed that Peter had made a statement to the Land Clerk in the absence of respondent. One of the grounds of appeal is that the Native Commissioner erred in rejecting this evidence. The letter is clearly inadmissible. The statement, if it related to what transpired at the meeting, may be admissible if made ante litem motam. Apparently, the statement could not be found.
Two further grounds of appeal were abandoned at the hearing of the appeal, but I must refer briefly to one of these. In it this Court is requested to order the reopening of the inquiry for the evidence of additional witnesses. There is no indication who these witnesses are, what evidence they can give, and why their names were not given to the Native Commissioner whose duty it was to call the witnesses. When reopening is requested for further evidence it is desirable that affidavits be obtained from the witnesses to be called so that this Court will be in a position to decide whether their evidence, if accepted, will affect the finding.
Finally, it is contended that as the allotments in question fall within the purview of sub-section (2) of Section 23 of Act No. 38 of 1927, appellant is the only person entitled to succeed to the said allotments in terms of the Table of Succession framed under Proclamation No. 142 of 1910, as amended. The contention is that the words “ male descendant ” in the Table of Succession do not include an instituted heir and according to this Table appellant takes precedence over Soga. We do not agree with this contention. In native law an instituted heir is regarded as the actual child of the person by whom he was
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instituted. If Soga’s adoption had been in compliance with the requirements of the Children’s Act, he would be in Law the child of Patrick, and there is no reason why the same result could not be affected by an adoption under Native Custom, which is clearly recognised. The result is that appellant is not entitled to succeed to the lots in question. His appeal conse- quently fails and he must pay the costs of appeal.
There is a further point which requires consideration. Although it is stated that Patrick married Dorcas according to civil rites, it is not indicated when he married her. But having regard to the fact that Alice, who is the youngest daughter of Patrick, was undergoing training in Johannesburg in 1926, it is almost certain that Patrick and Dorcas were married before 1910, unless they were first married according to native custom and later according to civil rites. If they were married before 1910, then the principles of community of property would apply to the marriage, unless they entered into an antenuptial contract which is most unlikely, and in any case the presumption is against this (see Estate Tantsi v. Executor of Estate Nchela, 21 S.C., at p. 650). Nor is there any evidence whether Patrick’s estate was reported to the Master. If not, then the provisions of Act No. 38 of 1927 apply to the estate [see 23 (11) of the Act] and Section 22 (8) thereof provides that nothing in that Section nor in Section 23 shall affect any legal right which has accrued or may accrue as a result of a marriage in community of property contracted before the commencement of the Act.
Provisions identical to the above and contained in the second proviso of Section 2 of Proclamation No. 142 of 1910 as amended by Proclamation No. 127 of 1918, were considered in Majwambe V. Majwambe (4, N.A.C., 123), where it was held that the
community of property protected the spouses only and if one of the spouses had died, one half of the joint estate devolves according to Native Custom. Majwambe’s case came from the Idutywa District which is a surveyed district. Although the
judgment does not say so, the Court held in effect that the rights of the issue of the marriage were not protected by the community of property because the marriage conferred no special rights upon the issue in view of the provisions of Section 19 read with Section 22 of Proclamation No. 227 of 1898, which provided that the estates of all natives residing in a surveyed district shall devolve according to native custom, and quitrent lands according to the
Table of Succession. This was in fact held in Dingiswayo v.
Dingiswayo (4 N.A.C., 124. See also Mhambi v. Mhambi (4 N.A.C., 126). But these cases are not in point since Section 19 of Proclamation No. 227 of 1898 was never extended to Tembu- land [see Tetani v. Tetani, 1939 N.A.C. (C. & O.), 61].
The present case appears to be different. Sections 19 to 23 of Proclamation No. 227 of 1898 were repealed and re-enacted in a modified form by Proclamation No. 142 of 1910. What remained of the former Proclamation was extended to the Engcobo District by Proclamation No. 320 of 1911. Actually the survey of the Engcobo District took place many years later. If I am not mistaken, it was completed about 1924. However, the right of succession to Patrick’s allotments — which fall within the purview of Section 23 (2) of Act No. 38 of 1927 — is presumably governed by Proclamation No. 142 of 1910, Section 8 (2) whereof provides that quitrent lots shall devolve according to the Table of Succession. The question is whether these special provisions are affected by the second proviso of section 2 of the Proclamation. In Njobe v. Njobe & Dube N.O. [1950 (4), S.A. (C), 545] — a case from Cala (Xalanga) District — it was held that the proviso preserves not only the rights of the parties to the marriage but also preserves the consequences flowing there- from in regard to the issue of such marriage. In that case, however, the land in question was not quitrent land in a native location and, in any case. Proclamation No. 227 of 1898 never applied to Xalanga District.
172
The question whether the protection afforded by the second proviso of Section 2 of the proclamation or by Section 22 (8) of the Act, extended to quitrent land in a native location has not been adequately argued before us and, in any event, as Patrick’s daughters who may be affected by any ruling which we may give, are not parties to this case, it becomes necessary to send the proceedings back to the Native Commissioner for evidence as to whether the consequences of community of property apply to the marriage of Patrick and Dorcas. Their daughters should be given an opportunity to state their claims.
The appeal is dismissed with costs, but the finding of the Native Commissioner is set aside and the proceedings are returned to him for further evidence and a fresh finding.
For Appellant : Mr. Tsotsi, Lady Frere.
For Respondent: Mr. Hughes, Umtata.
1
INDEX OF LITIGANTS.
Page
Balooi V. Balooi 154
Bodliyase and Other; Natal v 159
Dlwengu v. Dlwengu 163
Dube V. Dube 146
Kohliso, Nyanda v 149
Majozi V. Majozi 127
Manqomntu; Nompenxela v 142
Mhlohleni; Xalisile v 165
Mncwango; Mtiyane v 137
Mntaka v. Ngcemu 129
Mtiyane v. Mncwango 137
Mtuti; Nongqungqu v 145
Natal V. Bodliyase and Another 159
Ndimande v. Ndimande 140
Ngcemu; Mntaka v 129
Nompenxela v. Manqomntu 142
Nongqungqu v. Mtuti 145
Nyanda v. Kohliso 149
Shenxane: Tyaliti v 161
Sihiya v. Sihiya 157
Sitole V. Sitole 138
Tyaliti v. Shenxane 161
Umvovo V. Umvovo 151
Xalisile v. Mhlohleni 165
Zibi V. Zibi 167
SUBJECT INDEX.
Administration Act, Native (No. 38 of 1927). —
Section 10 (1) (a) 129
Adultery —
Allegation of sterility 140
Damage for, under Common law 161
Marriage by civil rights 161
Agency —
Court officials not agents of parties 127
Appeals to Appellate Division —
Application for leave to appeal 151
Appeals to Native Appeal Court —
Forwarding of appeal records 138
Security 138
Unstamped notice of appeal 138
Assault —
Damages 159
Maxim “ in pari delicto ” has no place in realm of delicts. 159
Maxim “ volente non fit injuria ” 159
Attorney —
Penalising client for attorney’s negligence 154
Children —
Adoption under Native custom 167
Born of putative marriage 157
Illegitimate 157
Contracts —
Doctrine of undue enrichment 137
in pari delicto rule 159
Witnessing of agreements between Natives 137
Costs —
Order that costs to abide final determination of case
151
ii
Page
Courts: Native Appeal Courts: (See also “ Rules ”)—
Appeals to Appellate Division 151
Forwarding of appeal records 138
Security \\ i3g
Unstamped notice of appeal ] 138
Courts: Native Chiefs’ Courts —
Chief functus officio once judgment given 127
Customary Union (See also “ Lobolo ”) —
Dissolution: restoration of lobolo 165
Estates —
Calling of witnesses by Court: Enquiries 167
Heir —
Custodian or keeper cannot sue on behalf of absconding
owner 149
Institution of heir: formalities 167
Liable for debts and obligations of deceased father 142, 151
Preservation of absconder’s property 149
Presumptive heir according to Native custom 149
Where heir inherited nothing 142
Husband and Wife —
Allegation of sterility 140
Bigamous marriage 157
Children bom of bigamous marriage 157
Damages for adultery: Civil marriage 161
Divorce on grounds of adultery 140
Second proviso to Sect. 2. Proc. 142/1910 167
Interpleader —
Ownership: passing of 165
Judgment Debt —
Debtor’s duty as regards liquidation 127
Jurisdiction: Native Commissioners’ Courts —
Section 10 (1) (a) Act No. 38/27 129
Status of person in respect of mental capacity 129
Lobolo —
Claimed by heir 145
Restoration of: dissolution of union 165
Maintenance —
Illegitimate child 157
Mandament van Spolie —
Disposing of issue of fact on affidavits 146
Marriage by Christian Rites —
Allegation of sterility — divorce 140
Damages for adultery to be awarded under common law.. 161
Declaring nul and void: bigamous marriage 157
Divorce: adultery 140
Putative marriage: children illegitimate 157
Second provision Sect. 2 Proc. 142/1910 167
Native Customs —
Absconder: presumptive heir 149
Heir liable for debts and obligations of deceased father. . . 142, 151
Nqoma cattle 142
Ubulungu cattle 163
see also “ Customary Union ” and “ Lobolo ”.
Onus —
Onus of proof on defendant 129
iii
Page
Plea —
Party not in possession of mental faculties 129
Practice and Procedure —
Appeals —
To Appellate Division —
Application for leave 151
To Native Appeal Court —
Appeal struck off roll : re-instatement 154
Forwarding appeal records 138
Security 138
Unstamped notice of appeal 138
Contradictory affidavits on issue of fact 146
Onus of proof on defendant 129
Penalising client for attorney’s negligence 154
Point not canvassed in Court below : taking of mew muto
by N.A. Court 145
System of law to be applied 151
Vindicatory as opposed to spoliatory action 154
Rules: Native Appeal Court —
Rule 5 (3) 138
Rule 32 (2) 138
Old Rule 6 138
Old Rule 8 138
Spoliation —
Summons containing claim for alternative value of cattle is
vindicatory, not spoliatory 154
Statutes —
See “ Administration Act, Native, No. 38/27
Act 31 of 1917: Sections 37 (2) and 44 129
Prod. No. 142/1910: second proviso to Section 2 167
System of Law to be Applied —
Native Commissioner’s discretion 151
Tender —
Not communicated to judgment creditor 127
To pay into Court after judgment 127
Vindicatory Action —
Summons containing claim for alternative value of cattle. . 154
Action to be taken by owner 154
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VERSLAE
VAN DIE
NATURELLE-APPELHOWE
1952(3)
REPORTS
OF THE
NATIVE APPEAL COURTS
DIE STAATSDRUKKER. PRETORIA THE GOVERNMENT PRINTER. PRETORIA
G.P.-S.9472-1932-3-815.
1
SUBJECT INDEX.
Native Appeal Court Reports 1952 (3).
Page
Appeals from Chief’s Court —
Application for extension of time within which to note appeal to be preceded or accompanied by notice of appeal 194
Condonation of late noting 210
Appeals to Appellate Division —
Amount in dispute trivial 190
Assault —
Liability of father or guardian 212
Contracts —
Exchange 196
Infant betrothal 203
Loan: Illegal object 216
Costs in Native Appeal Court —
Appeal: where judgment could have been, but was not,
abandoned 194
Where wrong judgment in Court a quo results from that
Court acting mero motu 201
Customary Union —
Infant betrothal repugnant to principles of public policy. 203
Payments made in respect of infant betrothal not
recoverable 203
Damages —
Assault 212
Boycotting business 173
Defamation 201
Defamation —
Damages 201
Public retraction and apology 201
Mere use of words actionable per se, gives rise to
presumption of malice 201
Delivery —
Pointing out of cattle 196
Ejectment —
Stand in Municipal Location 191
Evidence —
Application to recall defendant by Plaintiff 208
Secondary evidence as to contents of document 206
Inferences—
Reasoning from 173
Interpleader —
Cattle attached at kraal of judgment debtor 200
Presumption as to ownership 200
Rebuttal of presumption 200
Warrants of execution to accompany record of proceedings 200
Judgments —
Must be definite and final to substantiate plea of resjudicata 215
Lobolo —
Infant betrothal: Payment made thereunder not
recoverable 203
Natal Code of Native Law —
Proclamation No. 168 of 1932 —
Section 132 (2) 201
Section 141 212
Pleas —
Res judicata 215
Practice and Procedure —
Appeals to Appellate Division : Amount in dispute trivial 190
Application for recall of witness 208
Costs: Wrong judgment occasioned by Court a quo acting
mero motu 201
u
Page
Interpleader cases: Relative warrants of execution to
accompany records of proceedings 200
Late noting of appeals : Lack of funds and unsubstantiated
illness 210
Onus, on pleadings, on defendant 196
Plea of res judicata 215
Secondary evidence as to contents of document 206
System of law to be applied : Case emanating from Chief’s
Court 196
Test case : Evidence on issues to be confined to particular
case being tried 173
Res Judicata — •
Plea of. 215
Rules; Native Appeal Courts —
Rule 2 (1) 209
Rule 17 201
Rules; Native Chiefs’ Courts —
Rule 11 194
Old Rule 7 194
Statutes — .
Administration Act, Natives No. 38 of 1927 —
Section 12 196
Section 15 206
Natal Code of Native Law, Proclamation No. 168 of 1932 —
Section 116 203
Section 132 (2) 201
Section 141 212
System of Law to be applied in Native Commissioner’s Court —
Case emanating from Chiefs’ Court 196
Test Cases —
several cases consolidated for purposes of trial 173
evidence in test case confined to issued in that particular
case 173
Witnesses —
Application for recall of witness 208
INDEX OF LITIGANTS.
Page.
Cebekulu vs. Shandu 196
Cekwana, Mnikati vj 206
Dhlamini and others vj. Gazu 212
Duve, Ncube vs 216
Gazu, Dhlamini and others vs 212
Jiyane vs. Mthembu 200
Kunene, Tshange vs 215
Kwinana and another, Lengesi and others vs 190
Lengesi and others vs. Kwinana and another 190
Mbata vs. Mdhlalose 210
Mdhlalose, Mbata vs 210
Mdhletshe, Zulu vs 203
Mfaxa, Mpendu vs 191
Mkize vs. Mkize 194
Mnikati vs. Cekwana 206
Mnyandu vs. Zulu 201
Mpendu vs. Mfaxa 191
Mthembu, Jiyane vs 200
Mtiyane, Shangase vs 208
Mutolo vs. Ngema 173
Ncube vs. Duve 216
Ngema, Mutolo vs 173
Shandu, Cebekulu vs 196
Shangase vs. Mtiyane 208
Tshange vs. Kunene 215
Zulu vs. Mdhletshe 203
Zulu, Mnyandu vs 201
173
CEN I R AL
NATIVE APPEAL CO URL
MUTOLO V. NGEMA.
Johannesburg: 20th July, 1952. Before Marsburg, President;
Stafford and Austin, Members of the Court.
Inferences — Reasoning from — £5,000 damages or other alter- native relief and costs of suit for alleged boycotting of and interfering with Plaintiff's business.
Held: Where several cases of similar purport are consolidated for purposes of trial the evidence in the test case should be confined strictly to the issues in that particular case.
Held further: The doctrine of common purpose applies only when persons conspire together for an unlawful purpose.
Cases referred to ; —
Rex V. Dhlumayo 1948 (2) S.A. 677 (A.D.). Absolom Mtombeni v. Motsanyane, 1948, N.A.C. (C.D.), 18. Rex V-. Blom, A.D. 1939.
Appeal from the Court of the Native Commissioner, Johannes- burg.
Marsberg (President), delivering the judgment of the Court: —
In the Native Commissioner’s Court at Johannesburg Plain- tiff, Frederick Ngema, by cession of action from the Bantu Bus Service Limited, a company duly registered with limited liability according to the laws of the Union of South Africa, sued Defendant Isaiah Mutolo, described as a Native of No. 1740, Block 4, Jabavu, Johannesburg, for damages in the sum of £5.000 for interference with plaintiff’s business.
Plaintiff’s allegations are as follows: —
During the period 5th December, 1948, to 6th January, 1949, the Defendant interfered with the Company’s lawful conduct of its bus service and prevented it from operating the said service by the following means: —
(a) He induced and incited persons to throw stones at the Company’s buses plying between Jabavu and Nancefield Station, with the result that they did throw stones at the said buses.
(b) he threatened to assault and/or to procure the assault of persons about to board the Company’s buses and by this means intimidated them and induced them not to board or use the Company’s buses.
(c) he threatened to assault and/or to procure the assault
of anyone who used the Company’s buses, and by this means induced persons not to use the Company’s buses.
In answer to a request. Plaintiff gave further particulars as follows : —
(a) (i) At a meeting held at Jabavu Township on the 5th December, 1948, the Defendant acting in concert with Johnson Nagatso and Nelson Putswa and others, incited and induced the persons present thereat to do the acts alleged in the summons, and also that such persons should inform, incite and persuade all other users of the buses of the Company who were not present at the meeting, to do the same acts.
(ii) on the 6th December, 1948, and at Jabavu Bus Termi- nus Defendant induced and incited persons to carry out the said acts, which they did.
174
(iii) subsequent thereto the Defendant and the others mentioned in (i) above held further meetings when large numbers of persons were present, during December, 1948, and January, 1949, when they incited and induced such persons to continue with the said acts.
(b) and (c) Defendant induced and incited the Native inhabi- tants of Jabavu and Moroka townships, as aforesaid. The names of the persons so induced and incited are to the plaintiff unknown.
Defendant denied each and every allegation and specially denied that he did or committed any of the acts alleged against him.
After a very lengthy trial the Native Commissioner found in favour of Plaintiff and entered judgment for payment of £3,900 damages and costs.
Defendant has appealed against the whole judgment on the following grounds: —
(1) That the judgment is bad in law and contrary to law in
that —
(a) the Native Commissioner erred in holding that the
cession of action granted by the Bantu Bus Service Limited to the Plaintiff, was a good and bona fide cession;
(b) the Native Commissioner erred in holding that the
boycott of the Bus Service of the Bantu Bus Ser-
vice Limited, which it is alleged was initiated by the defendant constituted an actionable wrong on the part of the Defendant; or, alternatively, he erred
in his finding that Defendant had committed an actionable wrong;
(c) the Native Commissioner erred in admitting and
accepting hearsay, inadmissible and irrelevant evidence from witnesses which wrongly influenced him in his judgment against the Defendant, and did further err in holding that such hearsay inadmissible and irrelevant evidence was part of the “ res gestae ” of the case;
(d) the Native Commissioner erred in rejecting the evidence and relevant exhibit regarding the Annual General Meeting of the shareholders of the Bantu Bus Service Limited, held on the 26th February, 1950;
(e) the Native Commissioner erred in his finding that the
Plaintiff had established the case against Defendant, as set forth in the Plaintiff’s summons and Further Particulars;
(/) the Native Commissioner erred in his conclusions of law in regard to the subject of the boycott.
(2) That the judgment is against the evidence and the weight
of evidence; and that the Native Commissioner erred in his findings of facts found to be proved.
Throughout the lengthy trial Defendant was represented by Mr. B.A.S. Smits. who also noted the appeal on his behalf, but when the appeal was called on before us Defendant appeared in person, unrepresented. Mr. Franklin appeared for Plain- tiff, Respondent. It was obvious that Defendant would be in no position to argue upon the points of law involved in the case and the notice of appeal, nor would he be able comprehensively to review the evidence or to criticize or challenge the Native Commissioner’s conclusions and judgment. However, he con- firmed the notice of appeal and proceeded with the aid of this Court’s Interpreter shortly to state his case. Thereafter in discharge of our obligation to render all reasonable assistance to an unrepresented litigant and to ensure that the ends of justice were served, it became our task to seek information and
i75
elucidation on a number of points gathered from our reading of the record as a wliole. After Mr. Franklin had been heard on the law relating to boycott and other points, much of the subsequent hearing involved questions from the members of the Court and answers from Mr. Franklin.
The onus to substantiate his grounds of appeal rested on Defendant. At the end of his address there was little arising out of these remarks, as Mr. Franklin pointed out. which called for a reply. Nevertheless there was a great deal ex facii the record which called for comment, matters which any legally trained mind would note, and it was in this direction that the court pursued its inquires.
Handicapped as he was by a lack of knowledge of the law and the rules of evidence, by an inability to employ the arts of debate of the skilled lawyer. Defendant would have been placed in a most disadvantageous position had he been held to the formal rules of procedure at the appeal stage and we, as a Court of Appeal, would have failed in our duty to ensure that justice be done. Our duty required that we render reasonable assis- tance to Defendant, a task which we endeavoured to perform by our interrogation of Plaintiff’s counsel, as indicated above.
As we have pointed out. Defendant was not in a position to and did not argue upon the points of law involved in this case but fortunately, in view of the main line which we are taking in our judgment, it is unnecessary for us to investigate or determine what may be the law in relation to the subject of boycott. So far as this case is concerned the matter is not crucial. We have not heard full argument and to pursue the inquiry would be of academic interest only. For the purposes of this case we shall assume and accept that the acts alleged in the summons and Further Particulars would constitute an actionable wrong on the part of Defendant and, if proved, would have entitled Plaintiff to a judgment for damages.
On considering the facts of this case we have not been unmind- ful of the decision of Rex v. Dhlumayo of the Appellate Division (1948 S.A.L.R. IT). In this Court we have followed this judgment as a guiding principle in dealing with appeals on questions of fact. An appellant must persuade us that the judicial officer was manifestly wrong or could not reasonably have arrived at the decision he gave.
On opening the case for the Plaintiff before the Native Commissioner, Mr. Oshry who then appeared, informed the Court that Plaintiff was suing three different defendants in cases Nos. 202, 203 and 204 (of 1949) each for £5,000 damages, that it was proposed to take case No. 202 first (i.e. present Defendant Mutolo) and that this would be a test case for all three cases. There is no other reference anywhere in the record that the three defendants were made co-defendants or joined jointly and severally, but there is a great deal of evidence in the record relating to the two other persons named Magatso and Putswa which can have no relevance to the present defendant, Mutolo. The summons is directed to Mutolo alone. There is an allega- tion in paragraph (a) (i) of the Further Particulars that he acted in concert with Johnson Magatso and Nelson Putswa and others but nowhere is there any claim that they be held jointly and severally liable. We have pointed out previously in the case of Absolom Mtombeni versus Motsanayane [1948 N.A.C. (Central) 16] that where several cases of similar purport are •consolidated for purpose of trial the evidence in the test case should be confined strictly to the issues in that particular case. Evidence relating to other parties can have no relevance. It cannot be taken into consideration in arriving at a decision in the test case. If it was desired to use evidence against Magatso and Putswa as evidence against Mutolo on the grounds of conspiracy or common purpose they should have been joined together in one action and there should have been a definite allegation against them that they were guilty of conspiracy.
176
Only on that basis could they have been liable for the acts of: each in furtherance of the common purpose. As the case stands, formally before us Mutolo cannot be held liable for the acts of others. We take the consolidation of those three actions tO' mean that one will be tested and the others will stand or fall by the decision in the test case, but the test case must be decided strictly on the facts and circumstances applicable to it. It is possible that strong argument could have been advanced to us on this score under ground 1 (c) of the notice of appeal, but in the circumstances of the representation before us the matter was not raised. We shall not comment further here because it is our purpose to review the issues on the basis whether there was or was not in fact a conspiracy as alleged by plaintiff.
Was there a Grand Conspiracy?
In reading the record of this case in cold print the members of the court have been unable to appreciate for what reasons the Native Commissioner entered judgment in favour of plaintiff. The allegations in the summons are specific, yet dt has been very difficult to find any real evidence to support those allegations. A great deal of evidence in the case relates to what is alleged to have taken place at a number of meetings which were held covering a period of over a month. Mr. Franklin has submitted that taking all those events together the conclusion can be drawn that defendant and others have been consistently hostile to plaintiff and that all the events point to some plan or conspiracy to injure plaintiff in his business. The only specific allegations in the summons are that on 5th December, 1948, defendant, acting in concert with Mogatso and Putswa and others incited the persons present at a meeting to do the acts complained of and also that they held further .subsequent meetings when they incited the persons present to continue with the said acts. But Mr. Franklin has gone further. Before us he has suggested that these occurrences were merely part of a more comprehensive conspiracy involving the Munici- pality of Johannesburg, Mr. Carr, the Deputy Manager of Non-European Affairs, the Public Utility Corporation — a bus service — and the members of the Native Advisory Board, of which defendant is one. He submitted that all those bodies were in league for the purpose of getting rid of the plaintiff and his Bantu bus service, that they were like vultures waiting for the prey on behalf of the Public Utility Corporation. He suggested that Mr. Carr, the Deputy Manager went out of his way to get the Public Utility Corporation to take over the Bantu bus service of plaintiff, and that Mr. Cadle. the Location Superintendent was favouring the Public Utility Corporation by permitting the distribution of pamphlets for the Corporation through his Native constables. Asked on what he based those suspicions Mr. Franklin stated that they were inter alia relying on a statement of one Moremi that £6,000 had been offered to members of the Native Advisory Board. Mr. Franklin went so far as to say before us that if defendant would now inform him who was at the back of the whole matter he would withdraw his judgment against defen- dant. It is obvious from a perusal of the record that a great deal of the cross-examination of the defendant and the wit- nesses has been directed in an endeavour to elicit information to support those suspicions. The Native Commissioner has himself commented that “ Counsel on both sides in their cross- examination resorted to questions which would have the effect of confusing the witnesses even more ”. We see then that a more comprehensive factor has been introduced into these proceedings than is to be deduced from the pleadings. Practi- cally the whole of plaintiff’s evidence relates to the theories and suspicions in his mind as to the machinations of his real or imagined enemies plotting for his downfall. At page 194 he said “ When this accident happened they thought they had a full grip and could now cause my downfall.” The impression
177
we have gained of plaintiff is that he is a hyper-sensitive, suspicious and arrogant person, all too prone to jump to conclu- sions and ascribe to his fellow beings the worst of motives in their dealings with him. Apparently his success in business has made him intolerant and self-opinionated. Many of his expressions are indicative of his state of mind. For example : Referring to the members of the Advisory Board — “They are municipal dogs paid by the Council.” At a meeting at the City Hall ; “ I told him that when my mother gave birth to me I had nothing and that I will go back to the earth in nothing.
1 did’nt take up a pencil and paper to sell my African birthright to a European, not me! They can beat me to death, the next man who is going to get this company can sell it but not me, I, as founder of that service. If the people are prepared them- selves to kill the service they must kill it, they would only turn round afterwards and say ‘ Ngema has sold us.’” All through his evidence we see this unfortunate suspicion upon which, as we shall endeavour to show, his whole case seems to be founded. Suspicion is always an unsound foundation on which to build. Unfortunately it seems to have played too important a part in the determination of the case before the Native Commissioner. As has been said by some writer:
■“ To be sure suspicion must feed upon itself and swell by what it feeds on.”
Relevant to this suggestion of a grand conspiracy a series of related incidents took place during the period 4th to 13th December. 1948, concerning which adverse conclusions have been drawn against Defendant. The bus accident occurred at 6 p.m. on Friday, 3rd December. 1948. Several Advisory Board members, including Defendant, visited the Location Superintendent, Mr. Cadle, at his office on Saturday morning. 4th December, to discuss the accident. These Board members, or some of them, arranged to hold meetings in their respective wards on Sunday morning, 5th December. Such meetings were held. From one of them a letter dated 5th December, 1948, was sent to Mr. Cadle. On Monday, December 6th Mr. Cadle arranged with Mr. Carr for a meeting to be held at the City Hall in Johannesburg at 2 p.m. on that day, at which Board members were to be present. The meeting was held and it was further arranged that Mr. Carr and a Police Officer should address a meeting in the location at 6 p.m. that same night. 6th December. After seeing the Board members at 2 p.m. Mr. Carr had an interview with plaintiff Ngema, who had arrived. Subsequently, that night at 6 p.m. Mr. Carr held his meeting in the location. Thereafter the Non-European Affairs Committee of the Municipality took certain action and eyen- tually plaintiff Ngema was asked to attend a meeting at the City Hall on 13th December. 1948, at which representatives of the Public Utility Corporation were present. Plaintiff was present at this meeting. Now, in regard to this series of events we are asked by plaintiff and Mr. Franklin to believe that all the parties who took part were in league and were 'motivated by a desire to cause plaintiff’s downfall, in other words, that their motives were mala fide. What evidence is there to support this contention? Mr. Franklin contends that it is to be gathered from the evidence of the witnesses for plaintiff viz. Obed Kanile, John Tjekele, Alexander Moremi, Hosias Mkhulusi, Oriel Monogoaka and Jackson Ntenjane. Taken at its highest value those witnesses allege that at meetings held by some of the Board members, the members asked the public “ What is the intention in connection with what had happened relating to the buses?” The witness Obed alleges that Defendant said
I want you to hit those buses because they killed us and further because we are not properly treated.” Mr. Franklin has been fair enough to admit before us that this witness was probably exaggerating. But none of plaintiff’s witnesses were present at the meeting with the officials of the Municipality. There is no direct evidence of any acts from which a conspiracy could be inferred. The suggestion of conspiracy is based purely
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on supposition and inferences sought to be read into the series of events detailed above. , Plaintiff’s own interpretation is clearly clouded by the suspicions which he entertained. Accor- ding to him, he says that after the stoning of the buses on the morning of the 6th December, Moremi came to him and made a report. He thereupon went to Mr. Cadle to lay a complaint. He complained that he had heard that the Board was respon- sible for the strike and Mr. Cadle asked him who had told him that. “ I told him that was a secret that I could not release. Mr. Cadle kept quiet. I went to Mr. Fox to ask him for advice.” “ Mr. Fox advised me that at 2 o’clock that day some members of the Advisory Board would be in Mr. Carr’s office in town and other European members of the Council. He said there would be a meeting there.” Plaintiff goes on to say he went to town and then “ I asked to see Mr. Carr and another European asked me af I had an appointment with Mr. Carr and I said yes. I told him I was Mr. Ngema the owner of the Bantu bus service. He went inside to tell Mr. Carr and Mr. Carr said ‘ Allright, bring him in.’ While I was still making a report to Mr. Carr about what I had told Mr. Cadle the Board members came in and sat on the chairs. I was speaking to Mr. Carr saying one of the Board members had come to me and told me that the strike was caused by the Board members. Mr. Nowana asked me who had told me and I said it was a matter far from him. Mr. Carr asked me when I would start with my bus service again and I said tomorrow. He said I must wait, he was going to ring up Marshall Square first and the Chief of the Police. He rang up and the reply was that I should not put the buses on the road. I said I would put them on the road. I then went away leaving the Board members there and I returned to my garage.” Then he says he recieved a letter from Mr Carr telling him that