UNION OF SOUTH AFRICA.

> V

aft**®

46b

ii Tiivm

52x .

SELECTED DECISIONS

OF THE

NATIVE APPEAL COURT

(CAPE AND O.F.S.).

■UK 1 1935.

(OFFICIAL)

VOL. 7.

(3123

pi; 3^0 <>OU T H AFfci CA

Jr

IN D E X OF. L I T I G A N T .0

Bam : magsngelele Vs Bo dor, a Vs . p o to N .0 ,

Diamond Vs. oiwisa . . Dwanya Vs. mfamana . .

Dyasi Vs. Dziki Vs .

Gc ina Vs .

Gc

na

■i

Dyasi ......

inbizo

IT tengo . . „ . oku Vs

Gqalana Vs . Gqaia r.a Gqibinkomo : M$gadeni Vs . . Gqoloda : Tyomkom Vs .

Kesa Vs . Saul & Ano . , » .

Korn Vs . Korn , „ .

Kwez a v s . A.wsza ............. ......

ma band la : Ivibo tsne lwa Vs .

kagqadala : logon! & .no Vs

magengele le Vs . Bam

kantanga Vs. man tang a «.

Aaviyo : iviba ngi Vs ^ »

mbangi Vs . ms v iyo t . . . .

itbiz o : Dr iki Vs...........................

mbotshelwa Vs . .■> a band la ............. .......

Mbulwana Vs . Ngqindevu

i\ifamana Vs . Dwanya

M^gadeni Vs . Gqibinkomo

Mgqcboka : Mziba Vs ... .

ivi i selo & Ano : Yamapi Vs ............ . ......

m s i nda : Go n tyi s : D . 0 . Vs...

ktshizana Vs . i nsliizana .......

Dzayifani : Dgcongolo Vs .................. .

Mziba Vs . mgqoboka » .

Ndle la Vs . ^wabe . ....

Ngc ongolo Vs . mZsyiPani ..........

Ngqindevu : mbulwana Vs

bgxe ka na Vs . Ngxekana . .

Ngxekana Vs . Ngxekana „ . . .

Ntengo : Gc ina Vs „

Pakkies Vs , Pakkios

Po to j l .0 . : Bodoza Vs ......

-1-

PAGE 10 .

29 , 83 , 1, 24. &V 21 1 74 „ 51 . 54 .

80 o

64.

84, 46

37,

18,

10.

12.

42.

42,

24. 37 = 08 . 83, 54. 58,

25 . 14 .

85. 34.

34 .

68, 71. 86 „ 21.

67.

28,

logo Vs . ^ ogo 31. .

oku Vs . Gc ina , 74 .

iwa be : Nd le la Vs ..... , . . . , 39 .

Rasmeni Vs . Rasmenj 70 .

San tyi si

r

I

CP CP

I II D E X OF LITIGANTS (Contd.) -11-

PAGE

Santyisi N.O. Vs. Ivisinda 14 „

Gaul & Ano . Kesa Vs 64.

Silc Vs. Veliso..... „ . . . 88.

iwisa : Diamond Vs 29.

ogoni a Ano. Vs. Magqadala 18.

Tyomkom Vs . Gqoloda SO .

Vsliso : Silo Vs.,, 88.

Veliso : Lyubele Vs 88.

Xala Vs. Xala 15.

Yamapi Vs . Miselc & Ano 25 .

o h j E C , i_ * - -1 -

PAGE .

ABDUCTION: Number cf cattle payable:

Tembu & Pcndomise Rustem 54.

:U:rciblc abducticn & seduction... 58.

ACT: No. 38 cf 1927 - Jurisdiction

cf Native Commissioner 74.

ACTION: Transfer from one Court to another.. 74.

ADULTERY: Damages ; Voluntary tender of cattle

in satisfaction of headman's judgment held to be admission of

liability 68.

tDamages-No proof of act-

Agreenent to pay 25.

Carriage by Cristian Ri tes -Damages where n. divorce claimed- Assault on Co-respondent 3.8.

AGENT: 3 lain against for dowry received... 47.

AC-REELEhf: Illegal must be proved -cannot be

assumed -whether parties '!in pari delicto" 58.

sNot binding on person not party thereto . 42

ALLOTMENT: Arable-Surveyed- idow's rights in... 1.

: surveyed -Ej ec tment of heir by

widow..... 1 .

AT’.; EAL : Costs-Review cf Taxation 85.

:Cc sts-Review of Taxation :Appea 1

and Cress Appeal 86.

: Grounds where appeal on facts 83

: Judgment amended though Appeal

dismissed 12 .

:Late noting against Chief's Judgmen t-C ondona ti on ref us ed. ..... . 24 .

:Late no ting-Condonati on-extention

of time for 37 .

:La te no ting :C 'ndonation -refused 6 A

:La te noting :Rule 6 G.N.2254 of 19 23 -meaning. of ".ithin 21 days after date of judgment".. 85.

A,.j,.^iULT: On Co-respondent in adultery case-

Damages 18 .

ATTORNEY: Fee for conducting Cease where

appeal withdrawn 85.

■BOTTLE": Custom-not native custom 47.

’ . LE: Depo.site of pending birth of

chi Id -Adultery case-Pondo Custom... 68.

:Engagement-re turn of 58.

C I EF ' >

COURT: Condonation of late noting f apoeal

a ga i n s t j ucl g m e n t r e f us e < 1 - i gn ' r; ■ nc o ^ f rules , 24.

G On TRAC T : 1 11 e cal -mu s t be p r r v e d & c a nn ' t

be assumed 58.

:0f . . . ./

Contd

-11-

Lage.

50 f saleiRisk and profit pass on completion of contract 81,

CCoTJ :	C la im a ga in s t Age nt for d o wry received-Counterclairn for wedding
	expenses -Set off of :Native Apnea 1 Court-Review of Taxation-Fee for conducting case	47.
	where apoeal wi thdrawn	85.
	:0rdered to be raid out of Estate '^Refusal of Clerk of Court to tax	51.
	bill of costs on lapsed summons.. iReview of Taxation-Appeal & Cress-	23.
	App ea 1 ...	• 00
CUSTOMARY
UNION:	Dee "mARRlAGE"
JJAiuiG^o i	Adui tery-Chris tian marriage where
	no divorce cla imed-bca le :Adultery-Nc proof of act-agreement	18.
	tp pay adultery : Tender of cattle in satisfaction rf headman's judgment	25.
	held to be admission of liability..	68.
	JAssault on Cc -respondent :i easure of.	18.
	iRem-' teness : Vindicatory action	39.
DEB To :	Heir's liability for debts of	1
	deceased parent	14.
DO .-RY:	Claim against Agent for dowry received- Cun ter claim for wedding
	expens es-Cet off -Cos ts ............ . :Paid n account may be retained where marriage not proceeded with but balance not claimable -Hlubi	47.
	Jus tom	64.
emancipation
OF , , I NOR :		15.
ED GAGE-; El . T
Cu T 1 L 111 \	Return of on rejecti n cf bridegroom	.58.

Ee TA TE : Claim against widow for Estate stock. 51.

:Enquiry under G.;- . 1664 of 1929- Jurisdiction of Native Commissioner limited-' .here marriage in community

of property Estate does not fr rm

subj ec t of 31.

:Heir of Groat House succeeds t Right Hand House & personal Estate of widow in absence of issue of that

h use . . 10 .

:L lability of heir f1 r debts 1 f deceased parent. .......... r ....• . 14.

siviajcr heir entitled t rec ver from his uncle value of Estate pr perty oisp sod in his absence with ut his knowledge.. 12.

EVIC TION : Tena nts -:ja le c f Land 29 -

EVIDENCE. . . ./

Digitized by the Internet Archive in 2016

https://archive.org/details/nativeappealcour07tran

-111-

Contd .

EVIDENCE:	Admissibility of parol Supplementary to written contract, 81. :Magis trate *s reasons not evidence, 42,
FORMALITIES :	Absence of indicates Customary Union not entered into ... 21.
GREAT HOUSE HEIR-	Succeeds to Right Hand House & personal Estate of widow of that house in absence of issue..,- 10,
GUARDIAN-	F omova 1 of. 51 .
HEIR-	Ejectment of from surveyed allot- ment by widow. 1. : Grands on may bring action 'to be declared during his Grandfather rs lifetime: Tembu & Pondornise Custom. 54, : Great House -Succeeds to Right Hand House and personal Estate of widow of that house in absence of issue in that house ..................... 10. :Liability for debts of deceased parent 14 . : Major -Entitled to recover from his uncle value of estate property disposed of in his absence & with- out his knowledge 5 12 .
ILLEGITIMATE CHILD:	Succession to land-Marriages by Christian rites and Native Custom.. 37.
INHERITANCE-	See under "Estate" and ’’Heir"
INTERLOCUTORY ORDER-	Ruling on objection where costs granted whether appealable........ 15
INTERPRETA- TION,:	Proclaims + icn No. 142 of 1910 } Section 9(1)..,.. 1 : Prods nation 333 of 1931 Sections 1 a nd 2 . . , . » . • . 28 :Rule 6. G.N. 2254 of 1923: Yeaning of "within 21 days after judgment”.. 85
IRREGULARITY:	Decision on facts without hearing both par ties -proceedings set aside. 42
JUDGMENT :	Amended though appeal dismissed.... 12 sReasone for not evidence........... 42
♦JURISDICTION :	Of Native Commissioner to hold enquiry under G.N, 1664 of 1929 w. inn tee o.o».**.o. 31 :Nat5ve Commissioner-Transfer of Action from one Court to another... 74
KRAAL SITE AMD ARABLE ALLOTMENT-	'i'i idow f s r igh ts in#..,. 1

LAND /

G ntd

- IV

Pag

LAND : Not falling wi thin purview cf

becticn 23(2) Act 33 cf 1927 cannot fr rm subject cf enquiry by Tati vc Commissioner 31.

:oale cf- Vacua pcssessio--..arranty- Uvictien cf Tenants ............... 29.

hbuce essicn itc : Illegitimate child of woman married by Christian rites... 37. ‘.Illegitimate child of Customary Ini n . ....... e o 37.

:..id' w’ s rights in surveyed o lie- tment 1 .

LJ3GIT1: .aCY; Child her n in wedlock-]

jump tion

ARHIaGo

onus cf ore

Christian rites -Community c f pr op or ty- J?s ta to c a on - 1 fc rrn s ubj ec t. of enquiry under G,N. 1664 of 1S29 . . 31, ; Chr i s ti a n r i t e s -Da ma ge s for a du 1 ter y where no div tcs c laimed-lca le of

damages .............

’Christian rites .Child own during subsistence cf:Uegitin =*cy:l resumpti n onus f pro" f . . . * . „ „ .

'Christian ri tes : Illegitimate child of woman married by conn >t succeed t land her dice s.d husband would Lav e inher- i tod ...... „ .

Customary Un: on -3a la nc e of dowry n t elalmabl where marriage n:t pr c e; : red wi th - U.ubi Custom ......

Cus t mary Uni n- Father ‘ s consent to material-absence f forma litics , 21.

: bus tom • <ry Or i n -111 egi cima to s on entitled v- succeed his nr. tiger's lend in absence cf legitimate

ma lo issue, ...*•• . 3 7 ,

iCus c. oic ry Un i on - " Ta i n ted blc dn- Father !s eight to repudiate on acc ■ mu : f-Canrr-t d s~ after sen’s dec th were marriage marriage recognized during his lifetime...® 54. f 1 u s to irr ry Un i n -Ra nking o f wives -ota bus cannot be changed after marriage. ........ 70.

18 o

n

71.

37. 64 .

ivilNGR

Fmancirati on

Active Appec 1 COURT:

Cc sts -Review of T'»x' t,i ..

85 , 86 .

i A TlVii

CC i lb j. C : :Juri s 3ic ti i 1 - v i 1 s . c ti n

fr m no C art + - an thor

74 .

i ATI 7..

outre. .

"B ! tl e" iustem n t lb tiv ’us tom. .

ATI Vt CUo ICt

’Ilubi -Uo-wry y id < n account may be re t in< wher rnai’rd p r o c c c d o o wi th but b? La nc e r> t. c la iri’cblc ... 64

a GIVE CUSTOM. . J

Contd.

-v-

Page .

NATIVE GUV TOM :

ONUS OF PROOF 4

PRACTICE:

Pcndo sDepcsi te cf cattle pending birth cf child only done in case

of unmarried woman 68.

it on do r-Fa ther ' s consent to Customary Union mterial 21.

Retention of abducti'n beast when

dowry re turnable-Fingo Custom 58.

:Ukutwala iNumber cf cattle payable- Tembu and Pondomise Custcm 54.

Legitimacy cf child born in wedlock. 71.

Dismissal cf summons on ground th«t damages not claimable in absence of proof of adultery where agreement

to pay-wrong. 25 .

: Irregularity-Reasons for judgment cn appeal f ■ rm part cf rec ■ rd but not evidence-judicial Officer giving decision rn facts without hearing

br th sides-Proce dings set aside 42.

: Judgment amended though appeal

dismissed. 12.

:Lapsod summons -Refusal of Clerk of

Court to tax bill of costs 23.

^Ruling cn objection where costs

granted whether appealable 15.

: Trans for of action from one Court t a nc ther 74 .

pRESUIpTION; Legitimacy of child torn in wedlock. 71. PRINCIPAL

& .SURETY: Surety no right of action against

Principal f~r payment to him of debt nr t discharged- diet form action should take,. 34.

PROCL/i ATI ON : No. 142 cf 1910 Sec ti n 9(1)-

In terpr e ta ti cn 1 .

	SNo . 145 :No . 299 :ho . 333	cf cf c f	19 23 1928 1931. . . ,			. .. 23,39,74.
PROF I T-r	□ ee Sale.

rtAI PING OF

NIVE . 70.

REVIE OF

T-.XjYITON : Or sts : 1- ppeal <k C ^r ss-Apoeal. ..... 86.

:C sts:Feo f r c ncucaing case when apnea 1 v i thdrawn. 85.

lloh- „ee oale. 81.

S PE- ton tract of-Risk and prof i t pass

n c rnpiot i an of c ontrac t. ....... . 81 .

ALn- Land-Vacua p ssessi''- .arranty-

mvi(;ti'Ti of Tenants 29.

r ; m r\ 771771

•jhi C)p P4

/

Contd

SET OF? SUCCESS ION-

SUMMONS :

SUrtETY--

SURVEYED

ALLOTMENT-

nTAj.NTED BLOOD :!-See under ''Marriage”

TAXATION OF COSTS-

TENANTS-

TENDER *

TRANSFER OF ACTION FROM ONE

COURT TO AHO TFEP. :Procedure „

Sea "Uk/utwa la."

Forcible “Damages for „

Num her of c a tt 1 e pays b 1 e -

Tembu and Pondcmise Custom „

Retention of abduction beast out of dowry when marriage not completed and dowry returnable - Fingo Cus tom ,

Sale of Land-Warranty-Eviction of Tenants . ..... o .

Right of owner to recover from per- son in physical possession

Sale of Land-Vacua possessio

Claim against for Estate stock

Ejection of heir from surveyed allotment-Rights in. . .

Proclama tion 333 of 1931

Ranking of -Status carnot be changed after marriage.

TWALA-

UKUTWALA

VACUA POSSESS 10

VINDICATORY ACTION ;

WARRANTY :

WIDOW :

W idow :

WINTER GRAZING- WIVES :

Review of-Native Appeal Court

Eviction of -Sale of land ...........

Voluntary-Admission of liability- Adul ter y-Da mages . ... ...... .........

Countercla im-Cos ts

Great House heir to Right Hand house & personal Estate of widow in absence of issue in that house. :To land: Illegitimate child of Christian marriage and Customary Union resoec tivelv

Dismissal of on ground that damages not claimable in absence of proof of adultery where

agreement to pay-Wrcng

:Lapsed-Refusal of Clerk of Court to tax bill of costs of

See rrinc 1 pal & Surety,

Ejectment of heir by widow- Widcw : s r igbts in ......... .

25.

23.

34.

1.

85,86.

29.

68.

74.

88. 54 .

58.

29.

39.

29.

51.

1.

88.

70.

-S E LOOTED DECISIONS- of the

NATIVE APPEAL COURT (Cape ana Orange Free State Provinces)

-VOLUME VII-

Gase No. I .

-IRVINE DYASI vs FANNY DYASI . -

BUTTERWOR'IH : 15th February, 1935. Before R.D .H •Barry Esquire, President and Messrs V< .K.P. Freemsntle and J.W. Sleigh members of the

l\ oPf * ©

Surveyed allotment, Ejectment of heir from by widowed mother disallowed ; widow's rights in kraal site and Arable allotment: Interpretation of Section 9(1) of Proclamation No. 142 of 1910 as amended.

(Aopeal from the Court of the Native Commissioner,

BUI TER". OR TIL )

In this case the Plaintiff claimed as against the D e f ■ e nd an t : -

(1) An order of ejectment from Lot No. 189,

Cegcuana Location A, Butterworti and removal of a certain square house erected by him on the said allotment and the return to the Plaintiff of the title-deed of the allot lent .

(2) Damages in the sum of L20 as and for tre pass by having built the house in question on tne lot, depriving her of her food supply and raealie crop, the dispossession of two oxen before and since she left the allotment and his ejectment of the Plaintiff by order and duress from the allotment.

(3) The restoration of Cl bags of mealies or their value £19:19:0 and

(4) The restoration of the two oxen referred v o in (2) .

i'he pleadings contain a great deal of deinil and it is unnecessary to here set them out - more e ;p .cirlly as certain of the claims have been disallowed and no cross- appeal has been noted.

Judgment. „ ,/

PaGLC J2.

Judgment was entered in the foil owi ng terms:-

'Jourt below

i n the

(1) defendant is ordered to remove from the allotment within thirty days from the date of this .judgment , to hand over the deed of grant of toe allotment to the Plaintiff, but is not ordered to remove any building from the lot.

(2) Defendant is absolved in regard to the claim for damages .

(3) Defendant is ordered to restore to the Plaintiff certain nine bags of mealies or pay their value at the rate of 18/- per bag.

(4) Defendant is absolved in regard to the tv o cattle.

(.5) Defendant must pay the costs of suit. Plaintiff is declared a necessary witness.

Against this judgment the -uefendant has appealed on the following grounds : -

(1) The judgment is against the weight of evidence and contrary to law.

(2) The Plaintiff's action is based upon a right to the use and occupation of i_>ot ISP to the complete exclusion of the defendant and all other members of the family of the late booi Lyse ; and this claim and contention is wron ; in law as it i" contrary to the meaning and intention of proclamation 227 of 1898 as amended.

(3) That the magistrate erred in his interpretation of proclamation 227 of 1898 and in hole ing that Dative custom does not apoly to the use and occupation of allotments thereunder.

(4; Tie erred in holding that Dot 132 was granted as an arable allotment and in his interpretation of oection 4 of Proclamation 287 of 3.82 . proclamation 827 of 1898 was clearly intended to confirm existing holdings in appropriate case? and to provide for future allotments.

,Taving re ard to the admitted fact that Lot 192 was occupied as a building allotment prior to and at the ti is of survey, <3 no has so been occupied to this date, there is a presumption c lav; that it was so confirmed and grantee as a building allotment under section 4.

(5) That tne form of title deed in re spec t 0 grants is part of proclamation 227 of 1898 and in construing the meaning and intent the 'hole * roclana tio .. must be looked to and if this be done

the . . . /

.

\

i

■

'

..

■

PAGE 3,

the intention to apply the Native custom is clear and definite .

(6) The title deed contains a condition that it is Msubject to all such duties and regulations as either are already or shall in furure be established with regard to sucn lands 11 and this condition covers the provisions of the subsequent amending Proclamations including Proclamations Nos. 142 of 1910 and No.

58 of 1920.

(7) That in interpreting a statute regard must be had to the general intention of the Proclamation; and the interpretation placed upon it must give effect

to that intention and be a reasonable interpretation , whereas the interpretation placed upon Proclamation 227 of 1898 and amending Proclamations by the Assistant Native Commissioner is a complete negation of the interpretation accepted upon for nearly 40 years and would create administrative chaos trirough the length and breadth of the Territories and be completely subversive of accepted Native custom and family life.

(8) That Plaintiff having failed to prove grounds for ejecting the Defendant, her action in respect of his ejectment from j-iot No. 18S must fail.

(9) That Plaintiff having without just or reasonable cause vacated the lot in question she has no right of action against the Defendant in respect thereof and her claim must fail.

(10) Plaintiff has by her petty conduct and her malicious prosecution of the Defendant on a criminal charge of trespass, herself been guilty of breaches of Native custom and family life which are inconsistent with her duty in the use and occupation of Lot 189.

(11) That Defendant in keeping the title deed upon Lot 189 has not been guilty of any act or omission entitling the Plaintiff to a judgment in respect of the saic Deed and such judgment is wrong in law and

fact.

(12) That there is no evidence to justify the judgment in respect of the 9 bags of mealies which at ail material times were and are upon the allotment for the use of the Plaintiff whilst properly residing thereon. She has no right in law to remove these rnealies from the allotment.

(13) That Proclamation 110 of 1879 specially preserves the application of Native custom in all suits between Natives .

(14) That the judgment in the case of Mevayeni vs Lavayeni is an authority for the legal contentions of the Defendant insofar as lot 189 is concerned and

the . . . /

the Assistant Native commissioner was bound tc follow that decision which is neither weakened nor overruled in any respect by the judgment in the esse of Pakkies vs Pakkies which dealt solely with an open transfer deed of land held e t one time by buropean and not containing the restrictive conditions imposed by Proclamation 227 of 1898 as amended by subsequent Proclamation above quoted.

I'he mstcer at issue is further narrowed down by the fact that the status of the respective parties is not in dispute and by reason too of the agreement of the parties as recorded at the last nearing, by which the Defendant was to deliver to the Plaintiff nine bags of mealies. The appeal in respect of this portion of the judgment has not been pressed and calls for no comments.

The crisp point for decision is, therefore, whether in law and fact the Plaintiff is entitled to have tie Defendant ejected from the allotment and to be placed in possession of the title deed thereof.

Prom the evidence it would anpear that the foil ow i ng facts we re established:-

In 1873 the late booi Dyasi married his first wife , Ida. Ah a bore him three sons, the eldest being Irvine the Defendant in this action. Between 1898 and 190u Ida died.

In 1903 Booy married his second wife, the Plaintiff, by Christian rites.

Prior to survey of the Butterworth district Booy occupied a piece of lend for both arable and residential purposes under communal tenure as confirmed by o act ion 43 of Proclamation 110 of 1879. This land was surveyed for him in 1902 and became l>oi No. 189 in Location No. 2 ca lied Cegcuana (later known as Location No. 3 called Cegcuana A) Butterworth district. Title, which was issued to him on 29th June 1903, was granted under the provisions of Proclamation No. 227 of 1893.

At the time of Plaintiff's marriage to Booy the latter was living on Lot 189 with the children of his first wife. Between 1904 and 1908 he left Lot 189 and established a new kraal on the commonage for himself and the Plaintiff . This kraal was known as Nzondelelo, and here he died in 1911. meanwhile tne family of Booy ' a first marriage continued to live on Lot 189 whereon had been erected huts and a cottage. After Booy's death Plaintiff continued to live at Nzondelelo kraal until 1919, when owing to the huts bein' rendered uninhabitable by Richard, Defendant's youngest brother, Plaintiff returned to Lot 139 with the consent and aporoval of the Defendant. She lived there until 8th November 1933 when owing to bickerings and quarrels between her and Defendant she considered her continued occupation of ot 189 impossible and intolerable and followed Defendant' younger brother Alfred to his kraal, Alfred having 1< ft uot 189 the previous day. The Assistant Native Com.:. • ioner

Noun

PAGE 5.

Commissioner found that Defendant’s interference with Plaintiff's legal rights justified her in leaving the kraal and that by so doing she did not forfeit her rights under Section 9(1) of Proclamation 142 of 1910,

In 1927 the cottage on Lot IBS had fallen into disrepair and Defendant with Plaintiff's tacit approval built a new house on Lot 189, costing £1200. I' his house

was regarded as Defendant's home although he never lived there continuously, his employment as a teacher and Minister of religion having kept him in other districts. The house was occupied by Alfred, the next senior member of Doov's family during Defendant's absence.

In July 1933 Defendant was granted one year's furlough by his church and resumed his occupation of the house on Lot 189. Defendant was not satisfied with Alfred's conduct of the kraal affairs and requested hi: so establish his own kraal on a site previously allotted to him.

For the purpose of building a stock kraal on his own site Alfred removed some natural scrub bush from Lot 189 with the permission of the Plaintiff but without that of the Defendant who remonstrated with Plaintiff about this. Later Defendant suggested that Plaintiff should vacate the hut which she was occupying and live witn him in the house but this she refused to do.

In October 1933 Plaintiff made arrangements without consulting Defendant, for the threshing of the 1933 mealie crop from Lot 189. This threshing Defendant prevented. At the same time he possessed himself of the key of a store hut wherein were stored mealies belonging to himself, Alfred and Plaintiff. The consequence of this act was that Alfred and Plaintiff refrained from asking Defendant for the key to obtain mealies for their daily wants and resorted to borrowing mealies from neighbours.

Defendant is the owner of warden Lot 190 which adjoins Lot 189. The Assistant Native Commissioner found the latter to be an "arable allotment."

The Assistant Native Commissioner upheld Plaintiff's contention that she was entitled to the use and occupation of Lot 189 during her widowhood and during her residence at her late husband's kraal to the exclusion of the Defendant and of anyone else, on the ground that Section 9(1) of Proclamation 142 of 1910 gives her the right of legal possession and the right of usufruct in the Lot and that if she has the possession then she has the same possession to which her late husband was entitled, i.e. the exclusive possession of a grantee of freehold or perpetual quitrent property.

As Plaintiff's case is based almost entirely on tiie rights conferred on her by Section 9(1) of Proclamation 142 of 1910 as amended a correct and proper appreciation of the meaning of the words "The use and occupation" in this section will dispose of all the grounds of appeal.

Maasdorp . . ./

■

-

Maasdorp (Institutes Vol. 2, 3rd od . p.14) defines possession as "the physical detention of a corporeal thing by a person, whether with or without any' claim of right, with the intention of holding it as his own" and further on, page 15% states "The intention must also absolutely be to hold the thing for one’s self and not for another, for a lessee, e person who has a thing on loan, or a depository, cannot in strict law be said to possess , or, if he possesses at all, he possesses not for himself but in the name of the owner." Now since the ownership of the lot is in tne deceased estate of which Defendant is the legal representative that mental state which is essential to constitute possession must 'nave been absent in the Plaintiff.

Her use and. occupation of her deceased husband's immovable property is with the permission of the drown which has in clause aV of the conditions of title reserved to itself the right to burden the title, end therefore her possession does not conform to Dlassdorp's definition.

Nor has the Plaintiff the right of usufruct, a usufructuary may inter alia dispose of his life interest in the usufruct (Institutes Vol. 2> 3rd Ed. page 177) and such a right has not as far as this Court is aware been admitted by a Court of law. un tne contrary Hr . C .J. Warner , President, in the case Duke vs Duke (4 N.A.C. 133) stated "The term psufruct nas no equivalent in Native law, and it "is to be regretted that it was ever imported into the "reported judgments of this Court."

Section 9(1) of Proclamation 142 of 1910 further provides that the widow may exercise her right "subject to the obligations imposed by the conditions of title." The section is silent concerning the rights conferred by tne title. Plaintiff's right to the use of the land flows not from the deed of grant but from the wording of the section referred to above. Under this section she is entitled to the use and occupation of the immovable property belonging to her deceased husband.. Clearly there are many things which may be used or occupied by more than one person. The contention therefore that section 9 (1) of Proclamation 142 of 1910 confers on her rights equivalent to the rights of possession and of usufruct is erroneous. If this w.s tne intention the legislature would have so expressed itsel in words which would have a well-known legal meaning - nr which would leave no room for doubt.

As the extent of the rights which the legislature desired to confer on the widow is in doubt, it is incumbent on the Court to ascertain the intention of the legislature and in doing so it is entitled to look to the general intention of the Proclamation, the evilsought to be remedied, the laws and customs which existed prior to its promulgation and. the meaning consistently placed on the words by those entrusted with tne administration of the measure (hex vs. Detody, 1926 A.D. at page 202, and Denkel vs. Union government, 1929 A.D., 150).

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In the case of class legislation a Court will investigate the special and peculiar needs of the particular class of person legislated for* study the history of the class in its relation to the object of the legislation, analyse previous legislative enactments leading tc the one under reviev; in order to apply the law in the spirit and intention of the legislature.

Having considered the legal implications and the historic sanctions and social structural code of the special class legislated for, this Court finds itself in complete agreement with the dictum expressed in the case of ihavayeni vs. Aavaye ni (5 N.A.C. 93) to the effect that one of the objects in framing Proclamation 142 of 1910 was to rectify certain anomalies which had arisen in consequence of marriages between Natives by civil rites and to cocify and give effect to certain features of Native custom in so far as these were not inconsistent with civilised method?. If the Court is correct in its estimate of the real objects of Proclamation 142 of 1910 as amended and if it is guided in addition by the general principles that serve as a lead in giving to a statute concerning a particular class of person its intended application, then this Court is of opinion that the real object of the legislature has been to entrench the rights of widows and safeguard these women from exploitation and ejection from their husband's kraals by heirs who, many of them, lack any sense of responsibility and who are quick to dissipate their inheritances regardless of the obligations to maintain the family of the deceased.

To take a contrary view would be subversive of one of the fundamental props supporting the Native social structure. She could refuse to allow him access to his home and he could even be refused permission to repair estate property in which he has a potential interest. It is altogether wide of probability that the legislature could -’ever have intended that these revolutionary results were to flow from the later Proclamations referred to, becaaae, not alone would it be destructive of sound and wholesome Native law but it would be a negation of the principle of individual tenure in the form it has been deliberately grafted on to and modified by Native law and custom - as a reading of the various Proclamations affecting individual tenure at once reveals.

As already stated e widow* has no usufructuary rights under Native lav; to her husband's estate property.

The respective rights of widows and heirs, 33 gathered from numerous decided cases, from Proclamations still in force and from the practice observed in unsurveyed districts, to the use of arable land and the occupation of kraal sites under communal tenure are fortunately fairly well-known. In un surveyed districts a Native is entitled to a separate kraal site and a separate land for every polygamous household he establishes, and any unreasonable interference with the land could be resisted by the wife and the heir in her house, even against the husband (see Nonayili Tshobo d ano. vs. Soja Tshobo, 4 N.a.C. 140).

Upon the death of the husband each widow and her children will continue to use the land and kraal site obtained for

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her use, as long as she lives at the kraal established for her, but this right of use does not confer on her the right to eject her heir (Luke vs.Luke, 4 N.A.C. 133). He, if a major, is regarded as the kraal head and her rights are subservient to his. He usually cultivates the land for the common use of his mother’s family. He is by Native lav/ the Administrator of his father's estate and the guardian of his minor children whom he is bound to maintain. All the widow could claim is support for herself and her children from the land and the kraal property end to be consulted by the heir in regard to kraal affairs (oekeleni vs. Sekeleni & ano., £1 3.C. 118). In case of dispute between widow and heir, the decision rests with the heir (Luke vs Luke supra ) . It is only where the heir abuses his trust that he can be ejected from the kraal.

With the promulgation of free lama ti on 237 of 189S with its principle of !'one man one land1' the whole system of land tenure was altered and friction between tne heir in the great house and the widow in one of the minor houses was inevitable .

Before assigning a meaning to the words in question it is necessary to examine Proclamation 227 of 1898 and the relative amendments thereof in relation to the land in question.

Lot 182 wss granted under and subject to tne provisions of Proclamation 227 of 1898 and the title deed issued is substantially in accordance with the form prescribed by Schedule "AM of the Proclamation. The deed of grant is subject to such special servitudes as may be found tc be necessary (section 5). The legislature had power to ' and actually did impose further restrictions on deeds wit i retrospective effect (Section 2 of Proclamation 16 of 1S05 and section 3 of Proclamation 196 of 1920).

Under the Proclamation in its original form the Defendant would have been entitled in terns of section 23 to trie transfer to him of the deed of grant immediately on his father's death. It is only in cases where there is no son or male descendants of sons that the Governor may permit the daughters and idotrs to use the immovable property.

Lection 23 was amended by Proclamation 16 of 1905. Lection 1 thereof conferred or. widows the rig it of use and occupation of their deceased husband 's immovable property and denied the heir the right to obtain immediate transfer of tne lot into his name. This Proclamation not only restored Native custom as it existed crior to survey but goes further and confers the right of use end occupation to widows who would not have the right under Native cr. com, e.g. the right hand wife would not have h^a the right of use and occupation of the kraal and land belonging to the -eat wife. The object the legislature had in view in tor.' restricting the heir's right is not indicated, but tn evil sought to be remedied is abundantly clear.

Proclamation 142 of l&lo in i is turn repealed section 23 of Proclamation 227 of 1898 as amended. It modifies the effect of Proclamation 16 of i&of; by conferring

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the right of use and occupation only on certain widows, and then only while residing at their husband’s kraals.

Section 8(2) provides that all the immovable property belonging to the deceased person and held by him under title granted under the provisions of Proclamation 227 of 1898 devolves upon his heir subject to the burden imposed by section 9(1) which entitles the widow to the "use and occupation" of the allotment "subject also to the obligations imposed by the conditions of the title."

Now section 9(1) does undoubtedly restore Native law and custom as it imposes a servitude on the land akin to usus and is therefore a derogation from the r*ight of the heir to claim immediate transfer, and for this reason the words conferring the right on the widow must be strictly construed and in favour of the upholding of rights (Joosub vs Immigrants' Appeal Board, 1980 G.P.D. 109). Further as the actual words used in the section afford no guidance as to the extent and scope of the rights the legislature intended the widow to exercise the Court will conclude that an equitable and not an inequitable result was intended (Borcherds N.O.vs. Rhodesia Chrome & Asbestos Co. Ltd.,

1930 A.D. 112).

Bearing all these principles of the construction of statutes in mind it is clear that the legislature intended that certain widows should have the same rights as they had before survey but with this important addition: that in case of disagreement between widow and heir, the widow's rights to the use of arable land and the occupation of sites held under title should be paramount. To hold that less is intended would render the section nugatory.

fhe Assistant Native Commissioner has found that uot 189 was granted as an arable allotment, but that a portion of it is used for residential purposes.

Plaintiff's exclusive right to cultivate the arable portion of the lot cannot be disputed in view of the finding that she did not forfeit her right by leaving the residential portion. In order to exercise her right of cultivation to the fullest it naturally follows that she is entitled to use such huts as she may reasonably require for storing her crops, but she is not entitled to the custody of the title deed as such custody is not necessary to enable her to exercise her right.

With regard to Plaintiff's claim to eject Defendant from the premises on the allotment, it has already been decided (Mavayeni. vs I.evayeni, 5 N.A.C. 91) that a widow cannot eject the heir from her deceased husband's building lot. Without deciding whether this decision aoblies to kraals built on an arable allotment, it is clear that she is estopped from demanding the demolition of the square house since the building was erected with her knowledge and it has remained there for a year and a day without Plaintiff or the administration raising any objections (Niaasdorp 's Institutes Vol. 2, 3rd Bd . page 234 and Frank a Jo. vs uuveen, 1919 C.P.D. 299.), and the mere fact that the house and huts have been erected on land that was granted for arable

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purposes does not affect the question.

The record discloses that before survey the Plaintiff’s husband resided on the land in question and his family has continued to do so ever since. The building has always been regerded as the Defendant's borne and it follows that he cannot be ejected therefrom. If there is any irregularity in the use of the allotment for both residential and arable purposes then the administrative machinery provided in Proclamation 49 of 1930 can be invoked with the object of rectifying it.

The result is that the appeal will be allowed and the relative portion of the judgment of the .ourt belo.- altered to read as follows

"The claims for the order of ejectment of the Defendant "from the allotment, the removal of the house and the "delivery of the title deed of the allotment to the "Plaintiff are disallowed, but subject to the proviso "that while the Appellant is not ejected from the "allotment the Respondent's right to the arable "portion of the allotment is to be exclusive so long "as she complies with Section 9(1) of Proclamation 142 "of 1910 as amended by Proclamation 58 of 1920."

Corning to the question of costs, while each of the parties has succeeded in establishing substantial rights in the allotment and has in inverse ratio failed to establish their contentions the Court is of opinion that each party should pay its own costs, both in this Court and in tne Court below.

CAST NO 2,

JDRRY kiiyj PPL .iii-jp vs. PAN OP 0 BAM .

DUTTaR WORTH: 1a th February, 1935, before R.DP .Parry

D sq uire , Pr s i dent a nc M essrs. A .P. Ow e n a n <?.

J .Vi/ .Sleigh, members of the N.A.C.

Dr eat Douse heir succeeds to Right Hand House estate in the absence of issue of that house : also inherits personal estate of deceased widow of Right Hand House:

No Qadi Houses.

(Appeal from the Court of Native Commissi ner : Tsomo. )

The Plaintiff (Appellant) being heir to his late father Hagengelele claimed from his maternal step- uncle the delivery of six cattle, eighteen sheep, twenty- two goats with increase (if any) or their value - which property he alleged was in the possession of the defendant who refused to deliver them to him. The Defendant admitted that the Plaintiff was heir to Hagengelele but denied that he had in his possession any of the latter's estate assets.

It appears that Magengelele had two wives, Nomonti the great wife and Nosentyi the right hand wife. Nosentyi died during 1933 leaving no issue. The Plaintiff is the son of the great wife and is consequently the heir in

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both the great and the right hand houses of his late father.

It is not in dispute that Magengelele rejected his great wife and married Nosentyi. He died prior to Rinderpest. At the time of Nomonti's rejection the Plaintiff was a very young child and he states he was too young to remember v'hen the separation took place. He did not accompany his mother but went to live with his grand- father. Chen he was about ten years of age he accompanied his grandfather who went to live in tue Butterworth district. He alleges when his father died he owned five cattle j twenty-five sheep and twenty-nine goats but laser he says he cannot remember how many he was possessed cl when he died , but adds that they were taken to a kraal Nasentyi had set up for herself close to her brother’s (the Defendant).

It is improbable that in the natural course magengelele would have exactly the same number of animals when the Plaintiff accompanied his grandfather to Butterworth but that is what he states was the case.

During 1932 Nosentyi was removed to a leper institution and the Plaintiff states he went to the Defendant to claim possession of his half mother's estate, that Defendant admitted he had six cattle, eighteen sheen and twenty- two goats but could not hand these over without iXoS'-ntyi’s authority. The Plaintiff on proceeding to Bmjanyana Institution found that Nosentyi had died and on reporting this to the Defendant the latter took up the position that his sister was never married to Magengelele but was merely a concubine. This evidence receives conf ir.nation by Tshemese Magengelele who accompanied Plaintiff on the visits mentioned. Thereafter Teadman Kdima accompanied the Plainoiff to the Defendant but the latter adopted a third fourse and refused to discuss the matter.

The Headman states that he knows Nosen tyi had estate stock though not how many but he told the Court that, in his official capacity, he went with the Police to remove Nosentyi to umjanyana and that in the Defends: t' presence she stated that she had six cattle , nineteen sneep and twenty- two goats as well as a land - the land was to be left in Defendant's charge and Defendant agreed to look after the stock. This evidence receives co^robor- tior. by the witness F., Starr ini, a clerk and Interpreter in the office of the Magistrate, who testifies to the fact that when Nosentyi had gone to Bmjanyana Institution the Defendant and Headman came to the office and that on the Defendant being instructed to take charge of Noser. tyi's stock he said he had already taken charge of cattle, sheep and goats. The Defendant himself was too old to give his evidence but on his behalf Cola Bam and Me jaula Ban appear ed a nd c or. ter: ec t ha t w ha t e s ta t e . i a nga 1 i s o Magengelele had was tak n away by the deceased's broth rs . They admit that Nosentyi was given a heifer by the Defendant and that sne earned stock. mayaula concluded by stating that at the time of her death Nosentyi was

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possessed of six cattle being the progeny of the heifer given to her by the Defendant, together with eighteen sheep and twenty- tv/o goats which she earned as s herbalist and/or bought with the proceeds of grain sold.

The Judicial Officer took the view that as the evidence did not disclose how many, if any, of these animals formed part of the estate of Aar. gal iso Hagengelele and that as Nosen tyi was 3 tfidow any property earned by her would have been her own property and "therefore not heritable by the heir of her late husband. He accordingly granted an absolution order.

This - ourt finds itself unable to support the Judicial Off i c e r . Th e Defendant' s ow n w i tnesses testify

that the late No sen tyi owned the numbers and varieties of stock claimed and it is immaterial in law to the case whether the property claimed formed part of the lcate mangel iso siagengelele ' s estate at the time of hds death or whether they are the proceeds of Noser. tyi 1 s earnings, as the Plaintiff is, in the circumstances of the case, heir to the estates of both his father's houses and also* to bhe property of the widow' of the right hand house.

The appeal is allowed with costs and the .judgment in the Court below is altered to one for Plaintiff as prayed with costs of suit.

Sii-t NO : 3 .

RHODES MAN TANGA vs. CARROL A AK TANGA .

BUT TERN OR TH : 14th February, 1935. before R.D.K. Parry

Esquire, President and Aessrs. H.F.Owen and J.W. Sleigh members of the N.A.C.

Heir, a major, entitled to estate property disposed of by uncle during heir's absence and without his consent or knowledge notwithstanding alleged ratif ication by meeting of family members; Judgment amended although appeal dismissed with costs.

(Appeal from the Court of Native Commissioner: Tsomo.)

In this case the Plaintiff, who is heir to his late father Kopolo, claimed from the Defendant, his uncle, the sum of £24" the value of -six cattle, and certain amounts alleged to have been loaned to the Defendant. Judgment was entered for the cattle and £4 but the appeal noted is only in respect of the cattle.

'The Plaintiff alleges that the Defendant wrongfully and unlaw-fully paid certain six cattle, Plaintiff' property, as dowry for his (Defendant's) wife - without the Plaintiff's consent. The defence is that after the death of his father his mother contributed the six cattle towards his dowry, that of these, five were from the estate of his father (Plaintiff's grandfather) and one beast from the estate of the Plaintiff's late father (Defendant's eldest brother) . He contends that he is not liable to replace these as the cattle were contributed after a meeting of the family

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PAOP 13 •

held to consider the matter and the Plaintiff is bound by the meeting and that the cattle would be either a gift to him or would only be returnable from the dowry to be received by the Defendant on trie marriage of his eldest daughter (if any).

Against a .judgment for the Plaintiff for the cattle an appeal is noted on the following grounds : -

(1) The cause of action alleged in the summons is that the defendant pair the 6 head of cattle as dowry 9 whereas it is clear that the Defendant did not make this payment j the payment was made by the mother of the Defendant after consul- tation with all the male members o i the

man tangs family in other words the usual native custom was followed where dowry is being raid for a son whose father is dead; the Plaintiff has therefore failed to prove his cause of act- lion.

(2) The payment of the 6 head of cattle having been made as above set forth by the Mantanga family, acting on behalf of the Plaintiff, as long ago as 1927/28, and the Plaintiff having been informed of tne payment he must be held to have ratified the acts of the family; he is therefore now estopped from querying the paymen t.

(3) In any event the payment of 6 head of cattle having been made by the family bona fide, carrying out what they evidently thought Defendant's father would have done had he been alive, the Plaintiff if he is entitled to recover from Defendant must wait to be repaid from the dowry to be received by the defendant from the first daughter of his marriage.

It is common cause that the Plaintiff is heir not only to his father's estate but also to that of his grand - fatherDakati and it is not in dispute that of the six cattle paid as dowry for Defendant's wife five formed part of u.akati 's estate and one belonged to the estate ^opolo.

The attitude now taken up by the defendant in clause one of his notice of appeal is alt un nable

for at the time the cattle were raid the Plaintiff, a circumcised man, was \ y at the rain< • i w* >de

aware of the fact that his inheritance was being raid as dowry for his uncle.

It is alleged that a family meeting was held when it was arranged that these c? ttle oul la 1

therefore the Plaintiff must ; el bound ' Lon

of the meeting. Further, the Defendant atte t to Lft responsibility from himsf If to his ao trier , the 'icov of M? cati, but he has ov r3 !-

of the kraals one stock of both Kooolo and Makati paid out the cattle ar do^ry for his own wife - without tne knowledge and consent of the heir - also that he vn " present and took cart in the alleged meeting.

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On the death of a man his estate devolves uoon his heir and neither his widow nor his mother has the right to dissipate any portion of his inheritance as was done in this case .

As regards the second ground of appeal the defendant has therein raised a new defence not pleaded in response to the summons and this Court is of opinion that t sis defence being one mainly of fact it cannot be raised at the present stage - more especially as it is conceivable that the Plaintiff may be prejudiced if the contrary course is adopted .

The Judicial Officer entered judgment inter for

six cattle or their value £C4 whereas in the summons t le Plaintiff claimed only the value of the cattle - seeing that the Defendant has disposed of them for his own purposes.

This is not an action based on Dative law in which damages are being claimed so that the Plaintiff whose cattle have been dissipated is, in the circumstances, entitled to claim the value of the animals in question.

While it is necessary therefore to amend the judgment in this respect this Court is of opinion that it should not be constrained to depart from the usual rule by which a successful party is entitled to have costs awarded to him.

The appeal is dismissed with costs but the judgment of the Court below will be amended by the deletion ol the words !'3ix head of cattle or their value",

CAGE rJO :4 •

S IGA PA SANTYISI F v s . ROJQTYEN I it SIND A .

BU TTER WORTH : 14th February, 1935. Before R.i .G. isr * '

■^squire, President and Messrs. E.F.Owen < nd J . V. .Sleigh mem b e r s of the F .A . C .

Heir's liability for debts of deceased parent without proof that he inherited estate.

(Appeal from the Court of Native Commissi oner ittillowvele . )

In this case the Plaintiff claimed from the Defendant ( the lax ter* in his capacity of juarc ian oi •. minor named Jongils iiangcoyi; the sum of £8 plus interest thereon at 6 % per’ annum - alleging that in January 193 l nded to

the minor's late father Mangcoyi Bantyisi the sum of £' vith which to acquire cattle for him (Plaintiff). ? avers that the deceased with Plaintiff's consent used this mor \\ lor his own Purposes undertaking to make it good by de liver in cattle of his own but that this has not been done.

The defendant admitted that mangcoyi Santyi si was handed £4 wi in which to purchase a beast for I 1 J Lff> that this beast was’ bought and that it <- ied from r.-tui -1 causes .

Thereafter the Plaintiff reducer his claim to one for £4 and1 ^abandoned his claim 1 or interest.

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No evidence was recorded but as the Defendant alleged that Mange oyi Ssntyisi died without leaving any estate whatever and that his heir inherited nothing the latter was only liable for the deceased’s debts (save obligations arising out of Native custom) to the extent that he has bene fitted from the deceased’s estate.

After arguments on the point as to whether the guardian is liable whether or not deceased died leaving property, the Court below held the defendant to be so liable, and against a judgment for E4 and costs Defendant has appealed on the ground that as the cause of action is not an obligation arising purely or entirely out of Native custom the Assistant Native Commissioner erred in his conclusion that the heir was liable whether he inherited the property or not.

Two defences were pleaded, viz:- (a) That a mandate undertaken by the Defendant's father had been dischsr ad ana (b) that this case being one to be determined in accordance with common law principles, the Defendant is not liable to reimburse the Plaintiff for money handed no mis (Defendant's) father - seeing that the Defendant has inherited no estate*

The record has not been prepared with the precision required because it was left to this Court to infer that the first defence had been abandoned. This inference was confirmed as correct by the Appellant before this Court so that only the second defence remains to be dealt 1 ith.

Again, the record does not definitely disclose whether, if the ruling put up to this Court is reversed, the Plaintiff still proposes to lead evidence to establish that the Defendant did in fact inherit estate from his late father, and the Court has had to rely on the Appellant' Attorney to clarify the position. He advises that as he understood the position in the trial Court the Plaintiff has not abandoned the right.

This case cannot be deemed to be one arising purely out of Native law and custom. If the principles of i ative law were applied it would be opposed to natural .justice for it would render an heir liable to refund to the Plaintiff money handed to his late father for a specified purpose - which although not given effect to cannot under common law impose on the heir any legal obligation to repay, vithout proof that he inherited estate from his father.

The apneal is therefore allowed with costs and the judgment in the Court below is altered to one of absolution from the instance with costs.

-CASE NO: 5. -

ivl P.AU PI XAb A vs. NA.FILD._XAL A •

KQK3TAD : 26th February, 1935. before R.D.". Barry

Bsquire , President, and Messrs, h .F .C. Troll ip and G . F. Ke nyon , membe r s of the N .A . C .

Emancipation of minor, Interlocutory Order.

(Appeal

EAfiOfi

(Appeal from the Court of Native Commissioner iMate tiele ) .

In order to appreciate the significance and implications of this case it becomes necessary to set out in detail the pleadings and objections taken both in this Court and the Court below.

The Plaintiff (Respondent) sued the his capacity of eldest son and heir to the est late Bangani gala, for four cattle and one hor that Bangani Xals obtained from him the animal upon a promise that upon his receiving cowry i any of his daughters he would deliver to the r cattle and one horse to replace those he had r Plaintiff goes on to allege that before any of got married Bangani died but since his demise girls were given in marriage and their dowries received by the Defendant.

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Before pleading, the Defendant objected to the Bummons on the ground that he (Defendant) is a minor - he having been born during the latter part of the Croat Car and just before the Influenza epidemic in 1918.

At the conclusion of the evidence tendered by the Defendant the Assistant Native Commissioner overruled the objection with costs .

Thereupon the defendant appealed against the whole ruling* on the grounds

(1) That the only evidence on record shows that the Defendant is a minor and consequently it should have been accepted by the Presiding Officer.

(2) That the judgment is against the weight of evidence .

(3) That the judgment is wrong and bad in law and contrary to Native Law and custom.

(4) That the Magistrate * s reasons for judgment are contradictory and are alternative findings on the same facts, which is not tenable in law.

In this Court the Respondent objected £n_]J^ine to the hearing of that portion of the apoeal which if? against the judgment overruling the Appellant's objection in the Court below, on the ground that that order, apart from the order as to costs, is purely interlocutory and therefore not appealable.

It is to be observed that the order as to costs doed not form the subject of objection and the reason for this is apparent in the light of numerous decisions of the Higher Courts holding that an order for costs accompanying an interim order of the nature of the one in question 3 final and definitive and therefore appealable.

The practical effect is that wh ether the objection taken in this Court is allowed or refused the Court has still to consider the objection noted in the trial Court.

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It should here be stated that Defendant's heirship to. the late Bangani Xala is not challenged so that the main point for decision is whether he has locus standi in judicio to be sued unassisted.

After consideration of the evidence and numerous authorities this Court has come to the conclusion that the order given in the Court below is not interlocutory and is therefore appealable.

In his reasons for judgment the Judicial Officer places on record the following conclusions : -

- Facts found not pr ov e dj, -

1. That the Defendant was under 21 years of age.

- Facts found proved. -

2. That the Defendant was in any case emancipated.

3. That in any event the defect (if any) in the

summons was cured,

A review of the evidence discloses that it is inconclusive as to the actual date of the Defendant's birth but it does satisfy this Court that the Defendant must be regarded as fully emancipated from tutelage. Under Dative law and during the Defendant's minority his paternal uncle Poni Xala would have been his guardian but the evidence goes to show that Poni arranged for the Defendant's early circumcision with the definite intention that he (Defendant) should take charge of the estate. The Defendant has all along lived in the kraal of the late Dangani and apart from Poni, he has disposed orr his own responsibility of estate- property; he has received dowries for his sisters (and this has not been denied) and he appears to have conducted the affairs of his late father's kraal on his own responsibility although generally in consultation with his uncle. The mere fact that Poni has been c nsulted does not, in the opinion of this Court, alter the Defendant's status.

The principles enunciated in the cases of Ambaker vs. African Meat Company (1927 C.P.D. 326) and Pleat vs van Staden (1921 O.P.D. 91) apply in the present case. In the former it is laic down that, if a rpinor is allowed by his parents to engage in business on behalf of another he may be tacitly emancipated but merely to that extent. A minor is tacitly emancipated when he is allowed to carry on business on his own behalf, but he is only emancipated to the extent of contracts in connection with that particular business.

In the latter case it. was held that the tacit emancination of a minor is a question of fact but the presumption against emancipation is considerably stronger in the case of a minor if his father survives and he is living with him than in the case of a minor who is under the legal control of a testamentary tutor.

The circumstances of the present appeal present a far stronger case for . coming to the conclusion that the Defendant is emancipated than those arising in the two cases quoted. In this case the Defendant's father is dead and the defendant is in charge of the kraal and affairs as his guardian took definite steps to place him in that position.

Poni ' s . . ./

£&iJLJL8

Toni’s evidence in the extreme for a s co-Defendant and he nevertheless tell to be circumcised in could look after the the circumcision the after the affairs of' advice and then goes

is vacillating and self contradictory hile he says he objects to bein : joined contends- that he himself should be sued s the Court that he took the defendant order to make him a man so that he affairs of the kraal and that after defendant has in fact been looking the kraal although he comes to hi .1 for off and acts on his own responsibility.

inis state of affairs has continued for some years and when, in addition, regard is had to the well-known and well- recognised rulewS governing native social life the Court considers that although the Defendant's uncle has been consulted by his nephew1 in connection with tne management of the kraal and estate matters, the Defendant was definitely released and recognised as released from tutelage.

Having corne to this conclusion it is unnecessary to discuss further the questions as to whether the Defendant is or is not of the age of twenty- one years and whether if there is any relevant defect in the summons if it has been cured .

The finding of the Court that the defendant has been emancipated also serves to dispose of the objection to the hearing of the appeal.

By common consent arguments in this Court were directed to the merits of the appeal as a decision on the merits would serve to dispose of both the objections in this Court and in the trial Court, consequently the costs in respect of both are indistinguishable.

The result is that the objection to the hearing of the appeal is disallowed , the appeal is dismissed with costs and the case returned to the Court below for trial on trie ni e r i 1 3 .

- CASE NO

o . -

AN QCh •SOGCjl, 1 Cc AhO vs. t. ■ AD A--. DA .A .

PORT 3T. JOHN'S .

5th March, 1935. Before R.D. I. larry esquire, President, and Messrs. N.r 'r rle and P .A.Linnington , members of the .C.

Marriage by Christian rites: Damages for adultery cl- i n? ble even if husband and wife resume co-habitation, but mages not claimable on recognised scale as in case of cu -tom ary union: Measure of damages for assault on Co-Rest? one’ ml .

(Appeal from the Court o:‘

a ti ve C omm i as ion er : Ngq el

The Plaintiff in convention in this case ot judgment for three cattle or their value as and for cHm* :es for adultery by the Defendant with his wife - to whom he wss married by Christian rites. i'he Defendant in turn w s awarded £5 on a counterclaim for .050 as damages fo1" assault.

Against botn these awards the Defendant has

appealed . . . /

PaGE 19 •

appealed on the following grounds : -

(1) That the claim is mace according to Native custom while the evidence reveals that Plaintiff's marriage is by Colonial Law. That the Court- erred in not upholding Defendant's contention that as the claim then stood before the Court the Plaintiff could not succeed and further that the award of 3 cattle or L9 is on the face of it wrong. The Plaintiff could only sue for damages according to Colonial Law and was bound to allege and prove his damage which was not done.

(2) That the judgment for Plaintiff in convention was on the merits against the weight of evidence and probabilities of the case being

(a) meagre in the extreme

(b) improbable

(c) resting greatly on the evidence of a woman who was on her own admission untruthful.

(3) That the damages awarded on the counterclaim were entirely inadequate even if adultery had been committed, which is denied. furthermore Plaintiff having exercised a right to claim damages for the alleged tort cannot also use it as a mitigating circumstance.

In the opinion of this Court the Dative Commissioner was justified, on the evidence, in coming to the conclusion that the adultery had been proved.

It has been laic down by decisions of the Superior Courts and this Court too that it is not incompet- :ent for an aggrieved husband who is married to his wife by Christian rites to be awarded damages for adultery even if he resumes cohabitation with his wife after the commission of the offence by her and her paramour and even if a claim for dissolution of the marriage does not accompany the claim. Under Dative law the same principle has always been recognised but with this exception that the measure of damages among commoners, os distinct from claims by Chiefs, has been regulated by scale.

In the present case the summons alleges that the Plaintiff is married to his wife according to law ary. the plea is to the effect that the Defendant admits that a customary union exists between Plaintiff and his wife Sinnah. It is unfortunate that there is on record no replication to clarify that portion of the issue but the Court is satisfied that what was intended to be conveyed is that the marriage war. by Christian rites as all the evidence goes to show that that form of marriage formed the basis of the claim and the Defendant must have been well aware of the fact seeing that his intimacy with the Plaintiff's wife had formed the subject of an inquiry by the Church authorit- ies and the defendant, in evidence, admits that he attended this meeting and denied the charge of being unduly intimate with the woman Sinnah.

It follows then that the Plaintiff having rnarri d his wife by Christian rites his case .ust be governed by common lav; principles and it is therefore not competent or him to corne to Court and claim a measure of damages j n

acc ordance . , ./

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PAGE 20

accordance with the scale recognised in cases in which merely a customary union has been entered into. In claira- :ing the measure of damages he did the Plaintiff clearly misled the Defendant into the belief that notwithstanding the known fact that Plaintiff was married by Christian rites he was claiming the usual measure awarded in cases under Native law and custom. There has been no loss of consor- tium and the element of contumelia has not been seriously explored .

A reading of the record satisfies this -ourt that what was intended by the Claimant was to be awarded damages in accordance with native law and custom and although the Defendant must have been sware tn© t the Plaintiff was married by Christian rites he (Defendant) resisted the action on the justifiable assumption that the claim that was being preferred against him was one based on Native law and con- sequently he took no exception in limine to the summons.

For these reasons this Court is of opinion that the claim in its present form should not have been admitted.

As regards the award of D5 on the claim in re- convention it is difficult to be guided entirely by previous decisions as the injuries inflicted upon the claimants vary as also do the surrounding circumstances.

In the present case it appears that at the time of the assault the Plaintiff in reconvention was beaten and received eight blows on his head causing wounds varying from one to three inches in length. The left ulna was fractured, the left hand was swollen and brused, he sustain- ed a fractured metatarsal right hand, the right shoulder was bruised as was also the right ankle and foot. '"e was taken to Hospital unconscious and the medical evidence shows that he was discharged after being in hospital for about one and s half months. All the wounds are healed but it is stated that he is still suffering from giddiness, headaches, stiffness and pains of his left forearm, right hand, right shoulder and foot. The surgeon is of opinion that the stifness, weakness and pain in the limbs might be permanent and that the injuries to the head might result in permanent giddiness, headaches or even mental affection and fits. The permanency of tne effects of the assault is merely problematical and it seems just as possible to assume that recovery may be complete.

The doctor who attended the Plaintiff in reconven- :tion did not give evidence and consequently he could not be questioned and cross-examined. By consent of the parties a certificate by him containing substantially the facts as recited was put in of record in the case. It is unfortun- ate that the medical practitioner wras not a witness as his certificate suggests that he may quite possibly have been guided to his conclusions by st tements made to him by the Claimant as to the effects of the thrashing he received.

Un the other hand it has to be borne in mind that the Defendant has for a long time been interfering with the wife of the Defendant in .reconvention. Ke received a solemn warning by the church authorities to refrain from being unduly friendly and intimate with Magqadaza's wife but almost immediately afterwards he was caught in the act of adultery. The Defendant in reconvention states that he hit

the * * * /

<T APlii 0 1 »

the Plaintiff v/ho came at him and he then knocked him down arid beat him while he was on the ground. The Plaintiff in reconvention has largely to thank himself for his injuries in the circumstances disclosed and the award of 15 is not considered to be inadequate.

In the case of 5. Kashi vs. b, Dumezweni & -.no.

(4 N.A.C. 6) a similar award was made although the circumstances in that case seem to be of a more aggravated cnaracter than the present one. In tha incase the assault took place about 500 yards from where the injured man was caught committing adultery and as he was stabbed through his neck with can assegai which entered close to the vertebrae and the exit was in front of the nexk.

Taking into consideration the provocation and all the other circumstances the Court is not prepared to say that the sum awarded is unreasonably low.

The result of the appeal is that On the claim in convention

The appeal is allowed with costs and the judgment in the Court below is altered to one of absolution from the instance with costs of suit.

On the claim in re convention .

The appeal is dismissed with costs.

CASE NO: 7.

xyiTSIjBO 4 Cl DA VS « i MAXES I BE. N'T ERGO •

PORT ST, JOHN’S. 6th Parch , 1935. Before R.D.H. r-arry

Esquire, President, and Messrs. P.a.

Linnington and V .Addison, members of the

N.A.C.

Customary union, consent of girl's father material; absence of usual formalities; Pondo case.

In this case the Plaintiff (Respondent) alleging that he married the Defendant's daughter Hand i ban i - paying twelve cattle as cowry - claimed the restoration of his wife or the dowry paid - on the ground that his vife had deserted him without good cause and refused to return to him.

The Defendant denied that the Plaintiff was married to his daughter and stated shat he had seduced and caused her pregnancy on two occasions, that he paid five cattle for "the first offence and only four in respect of the second - leaving one still due for which he counter- iclaimed. In his reply to the counterclaim the Defendant in reconvention contended that even if it was held that there was no marriage the payment of four cattle for the second pregnancy was sufficient.

The Assistant Dative Commissioner found that a marriage had been entered into and that the Plaintiff had paid, in all, ten cattle. he accordingly entered ju; pment for the Plaintiff in convention and for the restoration of his wife or ten cattle or A'3u and on the claim in reconven-

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PAGE 22

reconvention judgment for the Defendant in reconvention.

This Court sees no reason to differ from the finding that the Plaintiff has paid an equivalent of ten cattle to tne Defendant but it finds itself unable to confirm the Judicial Officer's decision that a customary union had in fact been entered into by the Plaintiff . with t he L ef'endant ' s daughter.

It is common cause that for causing the first seduction and pregnancy of the girl the Plaintiff paid five cattle. Thereafter he again had relations with the girl and carried her off to his kraal. Che was folloved up by the defendant's Messengers who demanded payment and they were handed fifteen sheep and one horse which stock they drove off but left the girl. The Plaintiff thereafter left for the mines and soon after that the Defendant demanded more cattle and as these were not forthcoming he took the girl back.

On Plaintiff's return he paid, two more cattle and he states he paid these as dowry and that they were accepted as such but the Defendant denies that this was so maintain- :ing that the attitude he took uo was that if and when the Plaintiff had paid the damages for the second pregnancy he would c nsider the question of marriage. On this point the Plaintiff in evidence states that when he paid the last two cattle the woman was not handed to him but ran back to him and also that when this payment was made the defendant stated he was taking them for damages and that he was told by defendant to bring another beast as damages, .7hateve~ the Plaintiff may say as to his intention that the stock latterly paid were to be regarded as cowry it is perfectly clear from his ov n evidence that the Defendant did not accept them as owry and even after they were paid the irl was not handed to the Plaintiff but- ran back to him surreptitiously. It is significant too that the firs c child born of the illicit union and for which a full :ine has been paid is with the Plaintiff but the second chil is in the Defendant's custody.

The girl herself admits that her father never con- sented to her marriage to the Defendant and the evidence goes to show that she kept going backwards and forwards from her father's kraal to where Plaintiff lived.

Apart from these considerations the record r veals that tne usual formalities of a native marriage have not been observed. There was no duli party, no sacrificie v. ere made and no wedding outfit supplied.

It is quite apparent tnat the Defendant never con- sented to the alleged marri a • all t es r

this Court is not prepared to sustain the finding, in t is respect, of the court below.

Having come to tee conclusion that the - la : t } • ' has

paid the Defendant the equivalent of 1

judgment on the claim in reconvention is not di- turb d.

The result is that:-

un the claim in convention.

The . . ./

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-

1

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£XC.hiL'3 •

The appeal is allowed with costs and the .judgment of the Coart below is altered to one for the defendant with costs of suit*

on the claim in re convention .

The appeal is dismissed with costs*

~ CAou NO: S « —

CIivjSLA BQDOZA vs. VICTOR POTO N.O .

PORT 5T * J OHI'v 1 S : 6th March , 1935. before R .D .}! . Tarry

Dsquire, President, and Messrs P.A. Linnington and V. Addison, members of the

t t a r-

Lapsed Summons: Refusal of Clerk to tax Defendant's Till of costs sustained as also refusal by the Court to grant application for order on Plaintiff to pay costs: Order XXXII Rule 10 of Proclamation To. 145 of 1923 discussed.

(Appeal from the Court of Native Commissioner, Libode.)

In this case it is not necessary to review tne grounds of action and proceedings other than the point at

i ssue .

it is common cause that by virtue of Rule 10 of Order XXXII the summons has lapsed automatically. There- ;after the defendant submitted a bill of costs which tne Clerk of the Court refused to tax on the ground that t mere was no order of Court upon which to tax it and furtnermore there was no provision under Order aXXII Rule 10 for taxation.

The Defendant then made application to the Court below for an order on the Plaintiff to pay the Defendant's costs and this application was in turn refused and it is against this decision that the Appellant (Defendant) now appeals on the grounds that

(1) That the setting down for trial or applying for dismissal of a summons for want of prosecution are mere privileges and power granted to a Defendant, optional to a Defendant and not being compulsory.

(C) That the effect of tne lapsing of a summons is no bar to a Defendant's application for costs.

(3) That apart from its c restitution and rules a Native Corami si oner's Court has inherent juris- diction at Common law to aware costs to a Defendant on a lapsed .Summons.

(4) That the Assistant Native Commi sioner erred i:. his ruling of lav'.

(5) That apart from the provision of the proclams cion (145 of 1923) applicant has a common lav; right lo aoply for costs and this could be done by ap lic- :ation or Summons .

While. . ./

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While 6 Court of Native Con*nisaioner has power in pertain cireumatences to rescind or vary any judgment granted by it it ia difficult to see how this can be urged a a has been done in support of the proposition by the Appellant that 8 Court of Native Commissioner has inhe-ent power to award costs to a Defendant on a lapsed Summons,

The Summons has lapsed automatically and there was no judgment or order of Court upon which the Clerk could tax the Defendant's bill of coats and as the case has lapsed it is no longer before the Court,

The Defendant has been dilatory in that he did not avail himself of the power of "set down" conferred upon him by Rule I of order XVII and Rule 3 of order XVIli but allowed the Summons to lapse automatically. In these circumstances the proper course now is to proceed by way of action if the Appellant is so advised.

The Native Commissioner's Court is bound by specific provisions of the law bringing it into existence and this Court is not aware of any provision having been made in law or of any authorities laying down a contrary view. The ancillary powers necessary to ensble a Court of Native Commissioner to order payment of costs on a lapsed summons can hardly be inferred for if the legislature has abstained from making any provision in that direction it appears that it acted deliberately.

Nor can it be contended that an application by a Defendant for an order of costs where the summons has lapsed is on the same footing as a withdrawal of & summons for in the latter contingency special provision is made in Order XVIII enabling a party to apply to Court within a stimulated period, for an order on the party withdrawing to pay the applicant's costs.

It seems fair to conclude therefore that the omission to make similar provision for the payment of costs on a lapsed summons has been deliberate.

For these reasons the appeal is dismissed with costs, CASF NO :9 .

S3INJANI DZIKI V3. BIFU .

jPORT ST. JOHN 'ft; 5th March, 1935. before R.D.H. Barry,

.Ssquire, President and Messrs, P.A.

Linnington and V, Addison, members of the

N.A.C.

Condonation of late noting of appeal against judgment of a Chief's Court refused. Ignorance of rules.

(Appeal from the Court of Native Commissioner: Libode.)

In the Native Commissioner's Court an application for condonation of a breach of rule 5 Government

Notice . . ./

PAGE 25

Notice No, 2255 of 1928 as amended by Government Notice No.

1312 of 1931 was refused by the Assistant Native Commissioner sitting as a Court of Appeal from the judgment of the Court of Chief Victor Poto. The judgment of tne Court below was in the following terms:- “Application for late condonation of apnea 1 refused. "

From the record it apDears that judgment was delivered in the Chief *s Court on the 4th September 1934 and the appeal was noted fifty nine days later.

The relative rule requires an appeal against a judgment of the Jhief's Court to be noted within thirty days from the date of the pronouncement of the judgment.

The eppeal to this Court is noted on the grounds that the Appellant has a good defence, that he is illiterate and die not have the assistance of an Attorney, that he was ignorant of the requirements of the rule in question, an/ that he was ill for some time after the judgment was given.

The Assistant Native Commissioner is satisfied that the Applicant was ill for a time but the period of his illness is altogether indefinite. Considerable doubt is thrown on his bona fides as there is evidence showing that not long after the Chief's judgment he was going about and also attending beer drinks. His plea of ignorance of the rules is not one which in the circumstances should be encouraged* He is in much the same position as the majority of Natives and although he was clearly aware of the fact that he had the' right of appeal he never took the trouble to enquire or have enquiries made as to the manner of noting his an peal. The object of placing a time limit in v/hich appeals can be noted is to ensure finality and the Courts will not lightly condone breaches of the rule.

In the opinion of the Court no good and sufficient cause has been given for the Appellant's failure to note his appeal timeously and the appeal to this Court is accordingly dismissed with costs.

In dismissing the appeal with costs the Court will alter the judgment in the Court below to read as follows "The application for condonation of the late noting of tne appeal is refused with costs."

CA3E_N0.:10

LUFSLE YAM API vs. ZVv'ELINDABA LIqLLO &..ANO.,

UN: TATA : 14th ^arch, 1935. Before R.D.H. Barry Esquire

President, and Messrs. 3.G. Lonsdale and F.N. Doran, members of the N.A.C.

Damages for adultery: Admittedly no proof of act; Promise or agreement to pay: dismissal of 3ummons|wrongly ordered on ground that damages not claimable in absence of "roof of adultery and even if there was agreement to pay. Appeal allowed but costs in both Courts to abide issue; case returned for hearing.

(Appeal. . ./

(Appeal from the Court of Native ..onmissioner : Mqanduli.)

This Is an action in which the Plaintiff Claimed carnages for the alleged commission of adultery with, his wife .

In paragraph (1) of the particulars of the claim it is stated that the Plaintiff’s claim is based upon an agreement to pay carnages as claimed, but Later, in the record, the Plaintiff' s Attorney refers to the agreement as an alleged admission and promise.

This alleged agreement was specifically denied by the defendant as also the imputation of adultery.

Phe Plaintiff's Attorney in the Court below intimated that he had no evidence of proof of the adultery on the date alleged. He seems to have realised that unless he could prove some specific act of adultery he could not succeed. lie thereupon proceeded to action basing hi o claim for damages on an alleged admission of liability by the Defendant but, in his plea, the Defendant denied ever making any such admission.

No evidence was led but in the course of hearing the Plaintiff's Attorney applied to the Court to first give a legal ruling on the point as to whether, in the absence of proof of adultery, the Plaintiff would be entitled to succeed on the Defendant's admission and promise to pay.

In the course of argument he admitted that, he had no evidence of proof of the adultery whereupon the Defendant's Attorney applied for the dismissal of the lummons on the grounds that it disclosed no cause of action. This re uest was granted and it is against the ruling of the Judicial Officer that the Plaintiff now appeals on the folio- ing grounds : -

(1) That upon the facts alleged in buramons and "admission and agreement to pay" there ir a clear cause of action which is neither immoral nor illegal nor contrary to public policy.

(0) The admission of Plaintiff ' s Attorney that no intercourse on that day could be proved does not affect the position as the cause of ction is based upon a contract or agreement to pay (and not upon a tort) .

(3) That it is a question of evidence whether such contract was made, and the ilagistra te erred in dismissing the Summons without hearing such evidence .

(4) That this is a case in which European (Colonial) law must be applied, and anMayreenent to pay" is "justa causa" and therefore sufficient consider- ation to support a contract under this law.

At the outset it must be made clear that the clai n for damages is based entirely upon Native Lav; ant cu.; tom and not

upon. . ./

•V

upon common law principles. Notwithstanding the fact that the Plaintiff has token action under Native ^aw, in his fourth ground of appeal he states that the point at issue must be governed by Common law.

Tiie record is very abbreviated but on oerusing it this Court is satisfied that what Plaintiff’s Attorney intended to convey was whether in view of the fact that he was unable to adduce evidence in proof of the specific act of adultery alleged he would be entitled to succeed in his claim should he be able to establish the allegation that Defendant had admitted liability and promised to pay. ‘:e apparently did not intimate to trie Court that he hac no evidence of proof of the admission but the contrary is rather suggested, for he asked that a ruling should first be given so as to avoid the taking of evidence unnecessarily. ^s pointed out the Native Commissioner dismissed the Summons on the Defendant’s aoplication that in the absence of proof of adultery the summons disclosed no cause of action, basing his decision on the fact that in promising to pay damages there was an absence of consideration and that this would constitute a good defence and he states further that he was induced to dismiss the summons in view' of the fact that even if the alleged admission was made it would be insufficient to establish an action for damages seeing that it has been laid down (Reji versus Siiongalonga 4 N.A.C. 12) that the mere admission of adultery is insufficient to establish an action for damages and that proof of the commission of the act of adultery must be forthcoming. The Native Commissioner has therefore dealt with the point raised.

The Plaintiff’s and the defendant’s applications are inextricably interwoven and the ruling given in the Ccurt below served to dispose of both.

This Court finds itself unable to support the Judicial Officer for not alone is it not prepared to subscribe to the real reason given by him for disallowing the Plaintiff's application, vi2. that in the alleged agreement there is an absence of consideration, this Court hesitates to lay down that a claim based on an admission of liability to pay damages is in all circumstances untenable in a case such as this which is based on Native ijsv .

To lay such a universal rule as has in effect beer, done in the Court below, and without any knowledge of the circumstances under which the alleged admission was made might result in grave injustice to a bona fide Plaintiff.

In support of his ruling the Judicial Officer seems to have relied very largely on the j u' gment in the case of Raji versus Silongalonga (supra) , construing that jud inent as laying clown that tne mere admission of adultery is insufficient to establish an action for damages and that proof of the commission of the specific act of adultery lust be for the orni ng .

A careful perusal of the judgment in question does not lead this Court to the same conclusions as come to by the Native Commissioner, for in that case evidence o the adultery was led as also evidence of the fact that at a beer drink the Defendant admitted that the Plaintiff's wife was his metsha.

. hi

rAG-i, 28,

l’his evidence was construed, as corroboration of the evidence of the Plaintiff's wife and that of 3 go-between. The Appeal Court however took in view that the admission, if made, did not constitute s catch and from the rest of the wording of the judgment it is by no means clear that the Court then laid doT n unequivocally that an admission of adultery die not constitute a good cause of action in the absence o1’’ proof of a specific act of misconduct.

The reasons for his judgment both in respect of the question of "consideration" and the interpretation of the judgment in Raji's case cannot be supported.

The conduct of the case in the Court belo" leaves much much to be desired. The Plaintiff's Attorney pr. reeded to apply for a ruling on the broad issue as to whether in the absence of proof of adultery an admission of liability would constitute a good cause of action. Ce led no evidence whatever and the Judicial Officer proceeded to give a qualified ruling for reasons with which this Court is not in acc ore .

In the opinion of this Court the whole question of the alleged admission should have been explored before any ruling could rightly have been given thereon and tne Plaintiff's Attorney must be held mainly responsible or toe failure to place the Court in possession of all the necessary facts surrounding the making of the alleged admission, so as to enable the Court below to deal with the point raised in all its aspects.

For these reasons the appeal will be allowed, the ruling of the Native Commissi one:" set aside, and the cas returned to the Court below1 for further hearing.

For the reasons already given the Court will order that the costs of appeal are to abide the issue.

A A..n

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PAGE 29.

CAGE -miu.

PfrTER DIAMOND vs. TSHAKA 3 £'(13 A .

Kj^EG. J^IDLDM * 3 .TO GN. 11th April , 1935. Before R.D.H. Berry

Esquire, and Messrs. F.C .Pinkerton and C.p. Alport members of the N.A.C.

^ale of land: Vacua possessio: Warranty, Eviction of tenants.

(Appeal from the ^ourt of restive Commissioner: PORT ELIZABETH.)

In this case the Plaintiff (Respondent) claimed from the Defendant the sum of £63 alleging that the Defendant had failed to deliver "vacua possessio" of certain property in terms of a contract of sale entered into, the failure by tne Defendant to execute in Plaintiff's favour the cession of a certain judgment obtained by the Defendant against John Zwide Siwisa and for pecuniary loss actually sustained by less of rentals, costs of a judgment Plaintiff got against 3a rah and other costs and expenses.

According to the particulars of the claim the Plaintiff states thst in April 1934 he obtained transfer from the Defendant of certain land with buildings thereon, situate in Korsten, Port Elizabeth, and that in terms of the agreement the sale entered into on the 2nd March 1934 "vacua possessio" of the said property was to be given by the said Lefendant to the Plaintiff on the 2nd March 1934 and the rentals in respect of the property were to accrue to the Plaintiff from the first of that month - the defendant undertaking to notify the occupiers of the transfer to Plaintiff of the property anc. advising the Plaintiff thst the rentals amounted to £3 per mensem. The Plaintiff has failed to obtain "vacua possessio". It is alleged that the Defendant got judgment against one John Zwide Siwisa for £5 damages and for ejectment and costs and that as part of the agreement of sale Defendant was to cede to Plaintiff this judgment - which he has failed to do and having so failed to cede the judgment and give "vacua possessio the Plaintiff caused summons to be issued against Sarah Siwisa , the present occupier, for ejectment and damages in the sum of £21. Judgment was given in terms of the prayer - the costs amounting to £2:9:2, On a writ being issued and executed against Sarah Siwisa the Messenger made a return of nulla bona.

In his plea the Defendant admits the transfer of' the premises to Plaintiff but he denies giving any of the under takings alleged beyond sighing a certain document at the request of Mr. Attorney Volk purporting to enable the ...aster of the Supreme Court (?) to register the transfer in favour of the Plaintiff. He states that Mr. Volk obtained the property and attached the same in execution. The Defendant specifically denies having had any dealings or interview * th Plaintiff or even Mr. Volk as regards the estimation oi tne rentals, or to be responsible for the vacation by the tenants. He states that since 1930 to March 1934 he (Defendant) neve • collected any rentals, consequently he coul( not have m the alleged promises to Plaintiff. Die Oefendant ca tegori call denies that he ever undertook to cede to Plaintiff the judgment he got against John Zwide Siwisa. He admits that in - pt< iber the Plaintiff called uoon him to sign the cession and give Plaintiff possession of the property but that he ignored tne demand. As regards the action against his sister, Earth

uiwisa . . ./

Siwisa, the defendant states he heard of a letter of demand being issued against her but he denies being a party O'"1 having connived with Sarah to refuse to quit and deliver possession ol the house. The Defendant denied that he knew anything about the ^ action instituted against ierah, that it did not concern him. He accordingly repudiated any liability in the premises .

Against a judgment for Plaintiff for £7:10:0 as damages for failure by Defendant to deliver "vacua possessio"

°p the property on the due date, £5 pecuniary fees in resoect of rental and £2:S:2 being costs of the judgment against Da rah Siwisa , the Defendant has annealed on the following grounds : -

(1) That the judgment is against the weight of evidence and is not supported thereby.

(2} That the Plaintiff admitted that he never entered into any agreement with Defendant and that the only agreement he knew of we s between himself and . -r . Attorney hoik.

(3) That no deed of sale signed by the Defendant was produced nor any document purporting to give Plaintiff vacua possessio.

(4) That the property was attached in execution by Dr.

.oik, was later released by him (folk) and sole by

private treaty to Plaintiff, Hoik acting for both parties .

(5) That the purchase price was paid by Plaintiff to folk and never came into Defendant's possession.

At the outset it is evident that the Plaintiff has not correctly appreciated the true import of the doctrine of "vacua possessio". He seems to have assumed that it meant the handing over to him of the premises in a vacant state and free of occupation by any tenants. From the limited authorities available to the Court "vacua possessio" amounts to a warranty of title and s guarantee against eviction and these warranties have in no sense been lacking so far as the present transaction is concerned.

It is clear from the Plaintiff's summons that he has based his claim on the terms of an alleged agreement of sale but the record discloses that no such agreement y/:< , ever entered into as the Defendant resolutely refused to s' ,r any such document or cession of a judgment obtained by hi , several years prior co the sale, against, a tenant. ..r.

Attorney hoik at one stage acted for hot;. ‘ties and Defendant owed him certain money he authorised oik to 11 the property, reimburse himself out of the proceeds sn<: then to hand him (Defendant) any balance remaining over. To 1 us end he supplied Dr. oik with a power of attorney to pass- transfer • Beyond this power the Def* ndant signe i it,

had no discussions or dealings with the Plaintiff snd, for the Plaintiff's bare allegation, there is not a s ;red of evidence to show that the defendant gave any of the und-r*- takings as is averred by the Plaintiff in his summons.

The record discloses that from a d-ite lor: before

the transaction between the present parties trouble was

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PAGE 3.

experienced wit a the tenants of the property and the Plaintiff* after employing Messrs, oik and Aeinronk transferred his a flairs in this connection to ivies srs , Chabaud, Oosthuizen <k Haze 11 ana from them in tern to Mr. Attorney Soil kin.

essr

The Plaintiff transferred his affairs fro * i v oik and ^.einronk to Messrs. Chabaud, Oosthuizen i: Hazell about six months before these proceedings were commenced and a letter written by the former" firm to the latter at a time when the present proceedings were not contemplated is illuminating. In the course of this communication the following passages occur:-

‘'tith regard to the placing in possession , we advised ’’Diamond at the time, and repeatedly since, that the '’property belonged to him as and from the 1st re , "and that all rents were his as from that dace, C e "also advised oivfisa thereof, and Siwisa has not "collected the rents since that period.

"he told Diamond that he should see the "tenants and make arrangements in connection with the "rates and occupation. At the same time we advised "him that he might find it easier to take occupation "and. arrange about the rents, natives being v-hat they "are, if he could exhibit to the tenants his Title "Deeds. "

It is clear then that the position was fully explained to the Plaintiff and he was aware of all the circumstances in regard to the property he had acquired from the Defendant, it is therefore idle on his part, at this stage, to endeavour to hold the defendant responsible, under an agreement that was in fact never entered into, for rentals that accrued since he acquired the property and which the me' ndsnt never collected nor received. As already pointed out there is also no evidence of any agreement to cede to the Plairtif the .judgment referred to.

For these reasons the Court is of opinion thwt the a opes 1 must be allowed with costs and the judgment oi the Court below altered to one for defendant with costs of suit.

- C, -DA. AO. _ J. 2_* -

WILLI All COOP vs. TITUo QO ,„C .

KING GILLIAM ’3 TO ATI. 11th April, 1935. B< ore R.B. •

Esquire and Messrs. F.C. Pinkerton and C.P. Alport members of the N.A.C.

Estates: .Enquiry under section 3(3) of government notice i.o . 1664 of 1929: Lane not fallin lii ; section 2 of section A3 of Act 36 of 1927 cannot form au; ,iect of enquiry: similarly property in joint estate of spouses married in community of property : Jurisdiction of oivr Jommi ss i oner limi tec .

(Appeal from the Court of ..stive Commissioner iPOdT .LI -A A! .)

In this matter the Assistant Native Co.i .i ..loner held an inquiry under th,; p ‘ovisions of section o.

Government N'otic< , o. 1 > ■ . , in r

administration . . ./

administration of the estate of the late Thomas goqo, as the members of the deceased ‘d family failed to agree among tnem- selves on the subject.

From the record it appears that one Piet oq o was married to one Netjie by whom he had the following sons : - Thomas 3 Viilliam and John. Piet end his wife IT; tjie are dead as also Thomas Qoqo and John Qoqo.

Thomas was married by Christian rites and in community of property to Elsie Thon il tsetse by whom he hac the following, children, vie.:- Titus, Nora, Cronje, Gilbert and

lakixe *

The dispute centres round Titus Qoqo, the eldest son of Thomas Qoqo, on the one hand and his only surviving uncle William - who claims to be the head of the _oqo family, op the other.

According to the inventory lodged with the Assistant Native Commissioner the estate consists of stock end household effects valued at £43:16:0 and certain two pieces of 1- rr situate in hors ten, Port Elisabeth - which is not land as described in sub-section 2 of section 23 of Act 38 of TN7.

This land is valued at £235, Prom the two title-deeds put in of record these t" o properties were acquiree in 1903 and 1905 respectively and they were registered in the name of Thomas Qoqo, The titles are free and unencumbered so far as the ether members of the oqo family are concerned but hi Hi an oqo, purporting to act on behalf of all the members of the :o ,;o family, contends that these properties were acquired by contributions a no the earnings of himself, Thomas anc. John and that they were bought for the benefit of the family. The title-deeds are entirely silent in this regard.

In this Court an objection and exception was taken in limine on the ground that this Court has no jurisdiction as the property left by the late Thomas Qoqo does not fall wi thin the purview of sub-sections 1 and 2 of section 23 of Act No. 38 of 1927, nor within the purview of section 2 (d) or sub-sections 2, 3, 4 and 5 of section 3 of the Regulations framed under the provisions of sub-section 10 of section P3 of Act No, 38 of 1327 published in government Notice .vo. 1N4 dated the 20th September 1929. The objection was rounded off by an application for the dismissal of the appeal wltt costs.

In the course of argument it was pointed out by the Court that what was probably intended by the excipient was not that this Court had no jurisdiction to hear the appeal but that the Assistant Native commissioner had no authority to hold the inquiry he did. Both parties concurred in this view and it was on that basis that the exception was dealt with.

Cub-section (3) of section 3 of Cove^nment Notice No. 1664 of 1929 erne ' rs Native ommi sioner, 1 t i. of a dispute or question concerning the administration o • distribution of any property as is referred1 to in sub-s ct ' on 2 of the Government notice, to hold- an inquiry and det< ■ mnin? the issue. The subject matters of the disputes capable cf such investigation are circumscribed by sub-section (2).

According. . ./

According to this sub-section as read in conjunction with sub-section 2 of section 23 of Act 38 of 192? the only immovable property that can form the subject of such an inquiry is land in a location held in individual tenure upon quitrent conditions, by a Native, which shall devolve upon his death upon one male person to be determined in accordance with the prescribed tables of succession.

The land in question does not fall under this definition nor can any property forming oart of this estate and as described in sub-section 1 of section 23 of the net become the subject of an inq- iry such as the one in question seeing that it constitutes the joint estate of two Natives married in community of property (see section 2(b) of Government Notice I\o01664 of 1928). It is clear too that the estate property referred to in this case is not covered by section 2 (d) of the Regulations.

Such being the case the Assistant Native Commissioner has misconstrued the provisions of sub-section (3) of section 3 of the Government Notice as to give him the power to conduct the inquiry. The result is that. II the proceedings by the Assistant Native Commissioner , as of record, are ultra vires of the law and must be set aside.

In the opinion of the Court not only Nne Asci -tent Native tornrnissioner but also the parties who had the benefit of legal assistance went wrong and the latter cannot ev .ee responsibility for the holding of the inquiry. It was instigated by the Appellant and as regards the Respondents they submitted themselves to the inquiry and took nc objection to the proceedings.

The objection in its correct form as above indicated is allowed v.itn costs and the whole of the proceeding.' at the inquiry by the Assistant Native Commissioner are s :t aside with no order as to the costs in res ect of the

inquiry.

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CA63_NP„:13.

IvGCOK'GOLO vs, M3AYIFANJ .

BU T T DP vi OR TIT : 17 th July, IS 35. Before H.G. Scott Gs quire

and Messrs. F.J. Kockctt and J. .Sleigh members of the N.A.C.

Principal and Surety - Surety cannot sue Principal for payment to himself of debt which he has not discharged even though judgment obtained against him by Creditor - Action should be to compel Principal tc release Surety or pay Creditor the amount of the debt.

(Appeal from the Court of Native Cominis si oner : IDUTYWA . )

In the Court below Plaintiff (Appellant) sued the defendant (Respondent) for the sum of £8 and in nis particulars of claim as amended stated:-

"That during the year 1924 the said Plaintiff stood "as Surety and co-principal debtor for the said ’'defendant to Mr. Arthur Payment, then trading at "the Mfula in the dillowvale District for the "purchase price of a heifer sold to him for the sum "of £10. That the Defendant paid the sum of £2 "leaving a balance due of £8, That having failed "to pay the said sum the said Arthur Payment took "action and recovered judgment against the Plaintiff "for the said sum. Defendant is therefore now "liable to the Plaintiff for the said sum of £8."

Defendant in his request for further particulars asked whether the Plaintiff had paid to Mr. Payment the £8 which he was now claiming. The reply was in the negative and Defendant thereupon filed a preliminary plea as follows

"Defendant pleads specially:-

"1. That the present action is premature, in that "Plaintiff has not paid to Mr. Arthur Payment the "amount of £8 which he now; claims from the defendant: "that the mere fact that a judgment was obtained "against the present Plaintiff by the said Arthur "Payment is not proof of payment but is merely a "confirmation of the debt due by the said Plaintiff "to the said A. Payment.

"2 „ That the present Plaintiff is estopped by matter "of record from alleging that he was a Surety to "Arthur Payment for the Defendant, in that the "present Plaintiff when sued by the said A„ Payment "(Case do. 270/1926) was sued as Pr i ncyiuq_l_ : pbtpr "for an amount which he now (in Case 3 of 1935) "alleges included the sum claimed from present "Defe ndant ;

"that the present Plaintiff, then Defendant in Case "No. 270/1926 consented to judgment in that case as "a Principal Debtor.

"3. That cession of action should firstly have been "given to the present Plaintiff by Arthur Payment to

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PAGE 35.

enable him to sue the Defendant, and if cession of action has been given, such fact should have been averred in the particulars of claim in Case No. 3 of 1935; and further, prior to suing, notice of such cession of action should have been given to the Defendant, but such notice has not been given. That therefore the Summons is bad in Law.'1

The Plaintiff’s replication was as follows :-

"1. He joins issue on the Defendant’s contention that '•the action is premature, the fact that judgment has "been given against him gives rise to a cause of action '•by him against Defendant.

”2. Ke states that when the debt was incurred he stood “Surety and co-principal debtor for the due payment of "the same, that this justified the said Arthur Payment "in taking action against him without first excussing "the Defendant, that he therefore had no alternative "but to admit his liability as a Principal Debtor, he "denies that this can act as an estoppel to prevent "his taking action against the Defendant.

"3. He denies that cession of action was necessary to ’’enable him to recover from the Defendant."

No evidence was taken and the Summons was dismiss- red on paragraphs (1) and (3) of the special plea.

Against this judgment an appeal was noted on the following grounds :-

(1) That the Native Commissioner erred in holding that the action was premature, that judgment having been obtained against him by Arthur Payment he was justified in taking action against the Principal Debtor without paying the amount of claim.

(2) That the Court erred in holding that the Surety could not take action against the Principal Debtor, after judgment had been obtained against him, the Surety, without cession of action.

In support of the first ground of appeal reliance was placed on various authorities to shov that a Surety could recover from his Principal, even before he had himself actually paid, namely, amongst other things, where judgment has been obtained against him for the debt.

hut that he cannot sue for the payment to himself of the debt, which he has not discharged, is clear from the judgment in the case of Van der Y.alt’s Trustees vs. Van Coller (1911 T.P.D. 1173).

In that case one Van Coller signed a promisory note for £153:15:0 in favour of the Transvaal Government which was endorsed by the late Van der ha It as Surety and Co-Principal Debtor, which promisory note was, as between Van Coller and Van der halt, due by the former and against payment of which Van Coller had indemnified Van der halt.

Van Coller.../

Van Coller did not pay the promisory note and the Government claimed against the Estate of Van der Walt in insolvency and was awarded £25:3:9 in reduction and by way of dividend.

Van der Walt's Trustees thereupon sued Van Coller for (a) a refund of the £25:3:9 and (b) an order compelling Defendant immediately to pay to the Government or to them in trust to be rendered to the Government the sum of £153:15:0 less £25:3:9 in order to free them from the afore- said claim by the Government and by way of carrying out his promise of indemnity to the late Van der Walt.

The matter first went before Wessels J. in chambers, Defendant being in default, who granted judgment for the £25:3:9 but refused judgment for the unpaid balance of the note.

en

Plaintiffs appealed and in giving judgment de Villiers J»P. said:- "It w&e recognised by the learned 'Judge in the Court below that, although as a general rule,

'a surety csnnot proceed against the Principal Debtor before 'he has himself paid, there are certain exceptions in this 'rule. Voet (46,1, 34) lays down the law as follows:- 'Vice Versa the Surety may sometimes recover from the Principal ' 'Debtor the amount he undertook to be Surety for, although ' 'he has himself not yet paid it. At least he might call ' 'upon the Principal to pay the Creditor, for instance, if ' 'there was an agreement to that effect, or \^*en the Surety ' 'had already /condemned to pay, or if it be proved that the ' 'Debtor had started to dissipate his goods in such a manner ' 'that the Surety has just cause for fear."'

It was held that a proof of debt in an insolvent estate must be considered as equivalent to a judgment and the judgment then proceeded:- "The only difficulty the Court "has had is with regard to the particular form the order "should take. The Plaintiffs claim either oayment to the "Government or payment to themselves in trust, for the "Government. But there is no authority for the latter. "Faber on the Code (3k 4 tit. 26 def.26) states the law as "follows:- 'It sometimes happens that a Surety has the " 'actio mandati before he has paid, that is, when he has " 'been condemned or (which is practically the same) if he is " 'held to be condemned, as is the case with a person bound " 'under an instrument authentic and guaranteed (guaranti jia- " 'turn) which has the force of judgment and condemnation as " 'in this case. It must be, however, observed that in this " 'and other similar cases the Surety could not claim payment " 'to himself, but for his release or that the Creditor be " 'paid and satisfied from the goods of the Debtor. This is " 'also the view adopted by Gail bk.2 obs. 29)."

The Court then made the following order: "The Defendant is ordered to obatin the release of the Plaintiffs within one month from date, failing which the Defendant is ordered to discharge his liability to the Government."

It will be seen therefore that in the case quoted the Court held that a Surety and co-principal debtor could not sue his principal to pay to himself the amount of

a debt.../

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a debt for which he had stood as Surety and which he had not discharged but what he could do was to sue him either to pay the original Creditor or release him from his liability.

Applying the principles laid down in the case quoted to the present case this Court is of opinion that the Plaintiff was not entitled to succeed on the Summons in its present form, and that the appeal on this ground must fail*

In view of the conclusion at which this Court has arrived on the first ground of appeal there is no necessity to deal with the second ground.

The appeal is dismissed with costs.

JAMES MB0T3HSLSA vs, HQV/ARD MABAhpLA .

BUTTKRWQR'IH : 17th July 1935. before H.G. Scott Esquire

and Messrs. F.J, Kockott and J.W. Sleigh

members of the N.A.C.

Land • Succession to - Illegitimate child of woman married by Christian rites cannot succeed to lend to which her deceased husband would have succeeded had he lived - Illegitimate son of customary union entitled to succeed to his mother’s land in absence of legitimate male issue - Appeal - Irregularity in noting - Condonation - Extension of time.

(Appeal from the Court of Native Commissioner. TSCMO. )

This was an inquiry held in terms of Section 3 (3) of Government Notice No. 1664 •f 20th September 1929, to determine the heir to Garden Lot No. 537 in Location No. 8, Mbulu, Tsomo district,

'ihe Assistant Native Commissioner gave his decision on the 18th December 1934, declaring Howard Mabandla to be entitled to succeed to this lot, but the appeal was not noted until the 27th February 1935, some seven weeks after the time fixed by the rules for noting an appeal had expired and the Appellant has now made applica- tion for condonation of the irregularity on the ground that while he was not satisfied with this finding he being an ignorant native who was not legally represented was un- aware of the fact that he was entitled to appeal against the finding under Section 3 (3) of Government Notice No.

1664 of 1929,) honestly believing that as it was not a Civil case he had no right of appeal, that on the 18th February 19.35 he was informed at the Native Commissioner's office that the Chief Magistrate of the Transkeian Territories in his capacity as Registrar of Deeds had refused to transfer the said Garden Lot in favour of Howard Mabandla as he con- sidered that there was a valid objection thereto; that thereupon he consulted an Attorney who informed him that he could have appealed against the aforesaid finding but that the tine for doing so had expired; that he thereupon

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immediately instructed his Attorney to note an anneal and apply for a condonation of the irregularity.

In Submitting the application to this Court the Appellant's Attorney drew attention to the case of O.Aubs vs, P.^Xubs (1930 N.A.C* 34) in which the circumstances were almost identical with those in the present case where this Court refused to condone the late noting of the appeal. In the case quoted, however, the Appellant had instructed his Attorneys before the time for noting an appeal had expired and this Court considered that no good cause had been shown for granting indulgence* In the present case, however, the Appellant only became aware of his rights after the prescribed period had expired and immediately took steps to bring the matter before the Court.

In these circumstances the late noting of the appeal is condoned and permission granted to proceed with the appeal - costs of the application to be paid by the Applicant.

The facts of the case, which are not disputed, are as follows

The Carden Lot in question is registered in the name of Nomenti Mpolweni , the Right Hand wife by customary union of Mpolweni , who absconded many years ago and has never returned. The eldest son of this customary union was one King, who married one Elia by Christian rites, and died in 1918 leaving no male issue. Some five years after his death Elia gave birth to an illegitimate child, Howard Mabandla, one of the Claimants,

James Mbotshelwa , the other Claimant, was born about six years after Mpolweni absconded but he was brought up at his kraal and always recognised as his son.

In the case of Robbie Mgadi vs . Nkundleni Mgadi (4 N.A.C. 150) the Appeal Court stated:- "All the more recent authorities to which the Court has been referred "show that no married woman produces a bastard and that to "bastardize a child it is necessary for his mother's husband "to repudiate him."

This dictum, of course, referred to the case where there was a marriage by customary union and not w'here there had been a Christian marriage.

In the present case Howard .viabandla, being an illegitimate son born to a woman who had been married by Christian rites, clearly was not entitled to -succeed.

As James Mbotshe lwa was never repudiated he must be regarded as a son of his mother's houase and, in the absence of legitimate male issue of her eldes t son, is entitled to succeed to the Lot registered in Tier n;jne .

The apoeal is allowed with costs, the Assistant Native Conmissi oner ' s finding is set aside and it is declared that James Mbotshelwe is entitled to succeed to Garden Lot No. 537 in Location No. 3, Mbulu, Tsorfno district.

C ASE • • •/

MAPOKDO DDL PDA vs . M£OVj].j^WA Bg .

BU T I DR v i OR TH : 17th July 1935. Before II. G. dcott ^squire

and Messrs. F.J. Kockott and J.i. pleigh members of the N.A.C.

Vindicatory action - Right of owner to recover from person in physical possession who alleges ownership lies in' third party - Rule 1 Order XXV of Proclamation No. 145 of 1923 - Damages - Remoteness.

(Appeal from the Court of Native Commissioner : KDNTANI . )

In this case Plaintiff (iRespondent) claimed from Defendant (Appellant) the return of one heifer or its value £5 and £6 damages. Ke alleged that the heifer was his own property having been paid to him as dowry, that it was lost or stolen or strayed and was subsequently found in possession of the Defendant who refused to deliver it to him on the ground that it belonged to one kazaleni Lusawana.

The claim for damages was based on the trouble and expense to which Plaintiff was put in searching l‘or and proving his ownership to the beast in question.

The Defendant failed to enter an appearance and default judgment was entered against him on the 24th .aril 1934, and a warrant of execution issued. Application to rescind the default judgment and set aside the warrant of execution was made on the 16th May 1934 and grantee . , ttach-

:ed to the application for rescission was a plea to which Plaintiff objected as being no answer to the ouirmons. Thereupon Defendant on 7th June 1934 filed a further plea. Plaintiff was not satisfied with this plea and called upon Defendant to plead specifically on certain points.

Defendant then filed a further plea , withdrawing that dated 7th June 1934, in which he alleged:-

(1) . That he was in possession of the heifer not on

his own behalf but on that of Mazaleni Lusawana in whom the legal possession was.

(2) , That the legal position of Defendant was that of

agent to Mazaleni Lusawana as principal.

(3) . That as agent for Mazaleni and being in a

position of trust in regard to the heifer it was not possible for him to release th ' beast on his own responsibility except under penalty of having to reimburse Mazaleni without as agent being allowed in law to deny his title and that he had always referred Plaintiff to his principal.

(4) . That as agent he could not be sued in place of

his disclosed principal.

(5) . That he never maintained that the hell • was

the property of Mazaleni but merely that he was

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PAGE 40 .

holding it as agent for Mazaleni.

(6) . That the proper parties were not before the

Court to decide the ownership of the heifer and that he could not be expected to prove Mazaleni’ s title to it.

(7) . That as he had been placed in charge of the

heifer and having infor ,ed Plaintiff on whose behalf he held there was nothing wrongful or tortious in his conduct.

(8) . That Mazaleni Lusawana who had been absent at

work in East London was back in the district of Kents ni of which fact Plaintiff was informed.

(9) . None of the damages claimed in the Lummons

are recoverable at Law.

The Plaintiff filed an exception to this plea on the ground that it did not disclose a ground of defence to the action in that the action was a vindicatory one and the plea furnished no reply to the averments in the Summons and the conclusions of Lav/ detailed in the plea were erroneous.

The exception was upheld and defendant ordered to file an amended plea by the End July 1934, which he did in the following terms

The defendant pleads as follows

(1) That the heifer in question is the property of one Mazaleni Lusawana who placed defendant in charge of

it.

(2) That in that capacity of trust the defendant refused and still refuses to hand the beast to the Plaintiff on his own responsibili ty and without a judgment of a competent Court as to the ownership of that beast.

(3) The Defendant admits the value placed on the beast.

(4) The Defendant does not deny the various things which the Plaintiff avers he has done to prove the o' ner- ship of the beast; but the Defendant says these are not consequential to his attitude;

(a) When the Plaintiff lost his beast he naturally had to search for it and the Defendant was not the Plaintiff’s herd to be chargeable for the cos ts of search ;

(b) The attendance at the Defendant's kraal and the claiming of the beast are only natural consequences of the Plaintiff ever allowing his beast to stray and his claiming a wrong beast as his own ;

(c) Witness expenses are only payable on a bill of costs after the issue has been decided by the Court.

(5) The -defendant submits to the Court tha u the

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Plaintifi can claim witness expenses according to tariff in the same way as the defendant is entitled to claim his costs at the termination of the case and final determination as to the ownership of the beast in question.

The case thereupon went to trial and, after hearing considerable evidence, the Native Commissioner found that the heifer in question belonged to the Plaintiff and ordered its return or payment of its value £5 and further granted damages in the sum of £2.

Against this judgment an appeal has been noted. As the grounds of appeal are merely a repetition of the averments made in the Defendant's plea there is no necessity to detail them.

Phe Native Commissioner, after hearing evidence at great length, found that the heifer in uuestion was the property of the Plaintiff, and in the opinion of this Court, his finding is supported by the evidence.

Before this Court it was strenuously contended that the defendant was in the position of a depository who was not the possessor, in a legal sense, of the animal, and that as he had indicated the person who had placed it with him the Plaintiff had no right of action against him but should have proceeded against Mazaleni Lusawana who claimed to be the owner.

In the opinion of this Court the action is clearly a vindicatory action and not a possessory action.

Maasdorp in his Institutes of Cape Law (Vol. 2 page 91) states:- "Ihe form of action for the recovery of "ownership was under the Roman Law called 'vindicatio rei ' "which was an action in rem, that is aimed at the recovery "of the thing itself which is in the possession of another, "whether such possession was rightfully or wrongfully "acquired, together with all its accretions and fruits and "compensation in damages for any loss sustained by the "owner through having been deprived of it. The Plaintiff's "ownership in the thing is of the very essence of such an "action and will have to be both alleged and proved and the "claim may therefore be met that the ownership is not in the "Plaintiff but in a third party."

But where a defence that the property is in a third party is alleged it must necessarily also be moved and if the Defendant fails to prove this the Plaintiff must succeed. That a vindicatory action lies against a person v/ ho is merely in physical possession of a thing, as opposed to legal possession, is clear from the decisions in the cases of Kemp vs. Roper N.O. (Buchanan's appeal Court Zere s 1885-86 p. 141) and Ncunu vs. Kula (19 E.L. Court Reports p.338).

In the present case the Defendant pleaded that the ownership lay in Mazaleni Lusawana but failed to prove the allegation and in the opinion of this Court he was rightly ordered to return the heifer in question or pay its va lue .

The. . ./

^nnne^Mvt efendant, if he desired to relieve himself *f

^VS f?llcwed the procedure laid down ^M^hdKo ^roc Nation No. 145 of 1923, under

which he could have taken out an Interpleader sunmons

calling upon the Claimants to appear and state the nature and particulars of their claims and either maintain or relinquish them. As he did not do so he cannot nov com- . plain because judgment has been given against him in an action which he was not called uoon to defend.

.. .. action to ordering the return of the heifer the Native Commissioner also awarded £2 damages but he does not state on what grounds he bases his award. The claim for damages in the Summons is based on the trouble and expense to which Plaintiff was put in proving his ownership and lodging his claim. In every case* in which a Plaintiff makes a claim which is disputed he has to go to the trouble and expense of obtaining witnesses to sunport his claim and in lodging his claim and the Defendant is put to similar trouble. If damages were granted on such grounds it would open the door to similar claims being made in every contest- led case vhich came before the Courts.

In the opinion of this Court the damages claimed were too remote and should not have been awarded.

The result will be that the judgment in the Court below will be amended to read ’‘Judgment for Plaintiff for the return of the heifer or its value £5 and for Defendant in respect of the claim for damages. Defendant to pay cos ts . ”

As the Appellant has succeeded in obtaining a substantial variation of the judgment he will be allowed the costs of appeal.

CAST NO; 16.

RAFANA MBANGI vs . NJAJI 1V1AVIYQ .

PORT ST. JOHN’S. 7th August, 1935. before H.G . jcott

Esquire and Messrs. S.F.Owen and P.A.

Lining ton members of the N.A.C.

Practice - Irregularity - Magistrate's reasons on appeal form part of record but not evidence - Judicial Officer giving decision on facts without hearing evidence of both parties - Proceedings set aside - Agreement not binding on person not party thereto,

(Appeal from the Court of Native Commi sioner: TADANKULU)

The Plaintiff (Respondent) claimed from Defendant (Appellant) (a) the return of his wife or return of the dowry paid for her less the usual deductions for the children born of the marriage and (b) custody of the 1'our surviving children and in his particulars of claim stated:-

Both parties are Pondos , Defendant being of the .-.enci Clan.

(2) In or about the month of November 1921 Plaintiff married one Ivlankanti (or Ntaminani) the daughter of

Defends nt. . ./

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£AS£..33«

Defendant by Native Law and Custom and paid 12 head of cattle to Defendant as dowry and which marriage still subsists, (vide Rafana Mbangi vs. Njaji No. 15 of 1924. Native Conrnis si oner’s Court Tabankulu, which went on appeal to Native Appeal Court Lusikisiki) ,

(3) *our children were born of the said marriage , the eldest of which died in infancy and was buried at the defendant's kraal.

(4) About two years ago Plaintiff went to work in Johannesburg leaving the said Mankanti and his three surviving children at his kraal. On his return he found that Mankanti had deserted to Defendant's kraal with the three children, where she and the children still are despite repeated requests to return to Plaintiff and vhere the said Mankanti has been delivered of a female illegitimate child.

Wherefore Plaintiff prays for judgment for the return of Mankanti together wi th her four children, failing which refund of dowry paid less deduction for five children born of the marriage and custody of the four surviving children, with costs of suit.

The plea was as follows

(1) Admits para. (1) of Summons.

(2) Denies para. (2) of Summons as far as marriage is alleged and payment of 12 head as dowry. Admits case No. 15 of 1924 was sent to appeal but appeal was withdrawn and says said judgment was novated and made null and void by agreement between Plaintiff's father and Defendant dated 9th August 1924 and to which agreement Plaintiff consented which agreement Defendant prays may be considered as inserted herein and is attached hereto.

(3) Admits para. (3) of Summons.

(4) Denies that Mankanti with her three children ever went to Plaintiff's kraal and says that Mankanti and her children remained at his Defendant's kraal and that the Defendant gave Mankanti in marriage to Mosha 3 years ago with Plaintiff's fUll knowledge and said female child is not illegitimate.

The Plaintiff filed the following replica tion:-

(1) Admits appeal in case No. 15 of 1924 was withdrawn but denies that it was withdrawn for the reasons stated in paragraph (2) of Defendant's plea; also denies all knowledge of an agreement dated 9th August 1924 and puts Defendant to the proof thereof.

(2) Denies paragraph (4) of Defendant's plea and states that his marriage with Mankanti has never been dissolved .

According to the Ac- ting Native Commissioner's reasons for judgment the record of case No. 15 of 1924 was put in by consent but no note appears anywhere on the record to this effect. As however this is not challenged

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by either of the parties on appeal this Court is prepared to regard the record as having been duly admitted", in that case Ref ana Mbangi (present Defendant) sued Njaji Maviyo (present Plaintiff) for fourteen head of cattle as damages for the seduction and pregnancy of his daughter, Ntabinani , on two occasions „ N j a j i pleaded that the woman

was his wife and that he had paid Rafana six head of cattle as dowry. He admitted owilng a further four head as balance of dowry. The Magistrate who tried the case stated in his reasons for judgment:- ’’The Court found that the woman did live with Defendant for a considerable time and marriage must be presumed. Judgment was therefore entered for Defendant.” He did net, however, enter judgment for Defendant but merely granted absolution from the instance which seems to indicate that he v.as not satisfied that a marriage had been proved, 3e that as it may Rafana noted an appeal to the Native Appeal Court sitting at Luhikisiki but this was withdrawn as the result, it is alleged, of an agreement between Maviyo (father of Njaji) and Rafana the terms of which, shortly, were as follows

MIn consideration of the said Rafana withdrawing his "appeal against the said judgment Maviyo father of "Njaji agreed to pay to Rafana a chestnut filly to "cover costs in the case and ten head of cattle to "settle Rafana' s claim for damages for the seduction "and pregnancy by Njaji of Rafana rs daughter Taminani" ( ''presumably the same girl as that referred to in the ''case . )

The appeal v/as duly withdrawn and nothing further happened until the present action was instituted ten years la ter .

At the commencement of the present case evidence was led on behalf of Rafana (Defendant) presumably merely to prove the agreement and on oehalf of Njaji i.Plaintiii ) t1 disprove it but the Acting Assistant Native Commissioner allowed evidence to be given on the merits on the case but without hearing all the witnesses for both parties, thereby making confusion worse confounded -

At this stage the following note appears on the

record

"Court holds that agreement has no bearing on case. "Mr. Holmes addresses and pleads res judicata as "regards the marriage and quotes Ord. 29 oec. 1 C*1' "in support that the reasons for judgment in previou. "case form part of the record and go to show that a "marriage was proved. Mr. Uyason replies that they "do not apply as matter was decided as absolution "from the instance. Court rules that marriage "does subsist between the parties."

Thereafter further evidence on the merits was led and the Acting Assistant Native Commissioner entered judgment for the Plaintiff for the return of his wife the dowry paid for her consisting of seven he! cattle less iiv«

head for the children born, and, tfhile recognising tne Plaintiff’s claim to the children refused to make an removing them from the' care of their mother.

order

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Against tiiis judgment an appeal has been noted on the following grounds:-

"The Assistant Native Commissioner was wrong in "holding that the agreement between Maviyo and Rafana "had no bearing on the case as it was the crux of the "case before him was the very strongest evidence for "Defendant and was binding on both parties inasmuch as "Maviyo was head of Plaintiff’s kraal and Plaintiff "was living at Maviyo’s kraal at the time of the "alleged seductions and pregnancies and of the signing "of the agreement consequently Plaintiff was bound by "Maviyo1 s actions in signing the agreement. It is "true that neither Harry Sibaca nor Defendant's Attorney "could positively swear that Plaintiff was present "when the agreement was signed owing to the long lapse "of time since the hearing of the case No: 15 of 1924 "but the positive evidence of Madizana - and the "probability that Plaintiff would be present on such an "occasion go to show that he was present and consented "to the agreement.

"The finding of the Assistant Native "Commissioner that there was a marriage was wrong as he "was influenced by the reasons given by the Assistant "Magistrate in Case No. 15 of 1924 such reasons being "in conflict wi th the judgment of absolution from the "instance in that case and he could only find on that "point after having all the evidence of Defendant and "his witnesses who had not been called when he so "found, also bearing in mind the absolution judgment "and the fact that an appeal had been lodged against "the judgment in case 15 of 1924. See reasons for "appeal in that case.

"The finding of the Assistant Native Commission- 11 :er in Case No. 205/1934 shows conclusively that he "did not believe Plaintiff and his witnesses as regards "the number of dowry alleged to have been paid by "Plaintiff and his witnesses thus discrediting the "whole of Plaintiff's case whereas Defendant and his "witnesses conclusively prove that the necessary "Pondo customs to constitute a marriage were not com- " :plied with - to wit - (1) Consent of father of his "daughter to the alleged marriage (2) living of alleged "wife with alleged husband as his wife and (3) payment "of dowry - K.A.C. Reports Vol. 1 p. 99 Maxayi vs. "Fukani .

"It is significant that no reason is given by "Plaintiff as to why Defendant should stete that he had "not given his consent but Plaintiff does’ state that "Defendant was displeased with him - PlaintilY - and "ordered him not to come to his - Defendant's - kraal. "This apparently because Plaintiff had not p»aid fines "for successive pregnancies by him of Defendant' s "daughter on the sly and Defendant being of royal "blood was indignant."

In regard to the first ground of appeal th*s Court is of opinion that the Acting Assistant Native

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PAGE 46.

Cornrais si oner was correct in holding that the agreement between Maviyo and Rafana had no bearing on this case.

An attempt was made to prove that Njaji was present when the agreement was signed , which he denied, and this Court is of opinion that he was not present otherwise it is inconceivable that the Attorney who drew up the document would haVe ommitted to obtaih his signature esp- ecially ih view of the fact that he was a married man with his own kraal and that the father was not a oarty to the suit* Maviyo for purposes of his own may have made the arrangement with Rafana without consulting his son and the probability is that he did so otherwise it is impossible to explain why a man, who had been sued for damages for seduct- ion and pregnancy and had successfully resisted the claim on the plea that the woman concerned was his wife, should suddenly turn round, throw away all the advantage he had gained and admit to the very thing which he had previously denied.

Apart from these considerations it is clear from the document itself that Njaji was not a party to it and he cannot be bound by it.

The ^5 peal on this ground must fail.

Coming to the second ground of appeal it is clear from the reasons for judgment given by the Acting Assistant Native Commis si oner that he based his decision in regard to the marriage entirely on the reasons for judgment by the Acting Magistrate who tried case No. 15 of 1924 ana not on the evidence led before him. Apart from that he gave a finding on the question of marriage which was really the crux of the case before he had heard all the evidence of both parties. In doing this he committed a gross irregular- ity and it was a mere farce thereafter to hear further evidence as he had already made up his mind on the main question in the case. It is true that a Magistrate's reasons for judgment in a case on appeal form part of the record, but it is of no evidential value and does not relieve a Judicial Officer of the duty to found his judgment on the evidence as led before him.

The irregularity in the present case was seriously prejudicial to the Defendant and this Court is of opinion that the judgment cannot stand.

The appeal is allowed with costs. The proceed- ings in the Court^ below after the close of the pleadings aw aside and the case returned to the Court below to be

tried Qc »ovo before another Judicial Officer.

CASE NO : 17 .

TRfiMAS KWEZA vs. ALFRED KVkEZA

DM TATA . 14th August, 1935. Before H.G. Scott Esquire and

Messrs. R.Fyfe Ning and A.G.

Mc^oughlin members of the

N.A.C.

Practice . . ./

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Practice - Claim against agent Tor dowry received - Counterclaim for wedding expenses incurred and for cattle lent to Claimant's father - Set off - Costs - "Bottle" Custom.

(Appeal and Cross-Appeal from the Court of Native Conmissi oner : EKGCOBQ. )

In the Court below Plaintiff claimed from Defendant eight head of cattle and seventeen sheep or their value £32 alleging that he was the eldest son and heir of the late Vungama Kweza, that Defendant had wrongfully and unlawfully given his (Plaintiff's) sister Nontsikelelo in marriage to one Alec Mbotshelwa and received the stock mentioned as dowry for her, which, notwithstanding demand, he refused to hand over.

Defendant in his plea admitted giving the girl in marriage and receiving eight cattle and fifteen sheep as dowry for her, but states that Plaintiff authorised and directed him to arrange for her marriage and that he incurr- ed an expenditure of four head of cattle or £12 for wedding outfit and expenses and says further that he lent the late Vungama Kweza six head of cattle to make up the dowry for Plaintiff's mother, that Nontsikelelo is the eldest daughter of Vungama and he (Defendant) is entitled to reimburse himself from her dowry for these cattle as well as for the wedding expenses and he counterclaims for ten head of cattle or £30 their value.

In his plea to the counterclaim Plaintiff (Defendant in reconvention) denies authorising/ (Plaintiff in reconvention) to incur any wedding expenses and denies liability for those expenses. In regard to the claim for the six head of cattle he admits that Defendant (Plaintiff in reconvention) supplied one beast, not six, to Vungama to pay dowry but says Defendant has never claimed this beast and tenders delivery of it against delivery of the dowry paid for Nontsikelelo.

The Acting Assistant Native Commissioner entered the following judgment:- "For Plaintiff in original claim for delivery of eight head of horned cattle and 15 sheep or their value £31:1:2. For Plaintiff in counterclaim for 4 head of cattle or their value £12 in respect of wedding expenses and outfit and for 1 beast or its value xP in respect of the dowry beast advanced to Vungama. Defendant to pay costs in original claim and Defendant in reconvention to pay costs in counterclaim."

Against this judgment Defendant in convention appeals against that portion of the judgment aware?.:- Plaintiff in convention 8 cattle and 15 sheep or th i T‘ value £31:1:2 and costs and, as Plaintiff ii/ convention, against that part of the judgment awarding him only -ive head of cattle instead of ten and gives the following grounds of appeal :-

(1) That Plaintiff in convention having claimed that Defendant in convention wrongfully and unlawfully

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PAG±C

gave I'm on tsikelelo in marriage , and it being proved that Defendant in convention did not do so, but acted •. itn the consent and authority of Plaintiff in convention, and the other contentions in the plea of Defendant in convention being entitled to be upheld, the Court should have found that the claim of flaintiff in convention was extinguis ed and erred in awarding him costs.

(2) That the Court erred in awarding Plaintiff in re- convention only 5 head of cattle or £15 tneir value, Instead of 10 head of cattle or £30 their v.l ; . to which Plaintiff in reconvention established his ' claime.

(3) That those portions of the judgment above referred to are against the weight of evidence and the pro- babilities of the case and are bad in lav .

The Plaintiff in convention (Defendant in re- convention) cross-appeals against that part of the judgment awarding costs against him on the claim in reconvention on the following ground :-

(1) 'That the Court erred in awarding costs to .laintiff in re convention whose claim was contingent upon that of Plaintiff in convention, and could only be brought against Defendant in reconvention when and after Defendant in recon- vention had obtained possession of the stock as set out in the claim in convention, and that at most the claim or Plaintiff in reconvention could only operate as a set off against the claim of Plaintiff in convention.

The Acting Assistant Native Commissioner has :ound that Plaintiff (in convention) authorised Defendant (in con- vention) to arrange fonts ikelelo 1 s marriage, to receive her dowry on his behalf and to incur the necessary expenses in connection with the marriage and awarded him the very liberal allowance of four head of cattle in respect of these expenses. No appeal against this award has been note and no comment need, therefore, be made in regard thereto.

Defendant in convention also avers that he lent the late Vungama six head of cattle to pay dowry l‘or his vife, the motner of Plaintiff and Nontsikelelo , and that he is entitled to reimburse himself out of Nontsikelelo ’ s do\ ry in respect of these cattle and for the wedding expenses ich he alleges he incurred and he thus lays claim to the ..ole of the dowry paid. The claim for wedding expenses has been dealt with above. In so far as the claim fyr the ux head of cattle is concerned the Acting Assistant tfati Commissioner was not satisfied in th >

:ative evidence that Plaintiff in reconvention hod ' ve his claim and awarded him only one beast which Defendant in reconvention admited was due »nd ten< re< reply to the counterclaim.

The only evidence in regard to these cattle 1 tint of Plaintiff in reconvention and hi • twe sons, ‘ 1 Sofoniah* This loan 1

made some 24 years ago and it is somewhat •< . • : , • r. - * • • 1 •'

Thomas Kweza should not have t »ken teps acknowledged at any r t - ter Vu , ■ i *s

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PAGE 49,

As far as the record shows he makes no mention of the loan until the meeting in respect of Nontsikelelo • s wedding takes place and it is very doubtful whether at that meeting he specified the number of cattle he had advanced.

Matters connected with the payment of dowry are always well known not only to the members of the family but also to the neighbours and it is very significant that Plaintiff in reconvention should call only his two sons to testify on this point, one of whom was very young at the time of Vungama ' s marriage and certainly would not have been called in consultation. This Court is of opinion that the Acting Assistant Native Commissioner rightly regarded this evidence with suspicion and is not prepared to disturb his finding. The appeal on tftis ground must therefore fail.

The first ground of appeal and the Cross-Appeal are in regard to the order made in the Court below as to costs and it will be convenient to deal with them together. There was a claim in convention for eight head of cattle and 17 sheep or their value £32. Then there was a plea that this claim was extinguished by a set-off of ten head of cattle or their value £30, being the amount due for wedding expenses and cattle lent and then there was a claim in reconvention for the same cattle.

The Defendant, instead of keeping his counter- claim separate and distinct, confused it with that of Plaintiff by setting it up in his plea by way of compen- sation, his defence being that the Plaintiff's claim, the correctness of which he did not dispute, had been extinguish :ed by his own and that consequently the Plaintiff was not entitled to the judgment of the Court and he then counter- claims for the same cattle. The result of his plea, therefore, was that the Acting Assistant Native Commissioner could not give judgment upon the Plaintiff's claim, though its correctness was not disputed, without hearing evidence upon the claim in reconvention. For he had to determine, in the first place, whether it was of such a nature as to be capable of compensation, and, if so, secondly, what w«s the amount to which the Defendant was entitled.

It is quite clear that the Defendant's claims were not of such a nature as to be capable of compensation and that they were separate and distinct from that of Plaintiff and rightly formed the subject of a counterclaim.

The position in this case is almost exactly similar to that in the case of Fripp vs. Gibbon & Co. (1913 A.D. 354) in which the Magistrate in the Court below having found that on a consideration of the whole case there was a substantial balance due to Plaintiff had ordered Defendant to pay all the costs of the action, even though he had been successful to a very considerable extent in his counterclaim, and his order was upheld on appeal.

It will be seen from this case that where a Judicial Officer has exercised a judicial discretion in awarding costs the Court of appeal will not interfere

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no twith- standing that the general rule had not been observed that the costs in each claim should follow the result.

In the present case this Court is of opinion ' • that the Acting Assistant Nat&ve Commissioner has exercised a judicial discretion in following the general rule.

The appeal and cross-appeal on the question of

costs must therefore fail.

It is admitted that Defendant actually received in respect of Nontsikelelo 's dowry eight head of cattle and seventeen sheep. Defendant claims that two of +he sheep were given to him as a present and one of his witnesses stated "Of the seventeen sheep paid as part of the dowry two sheep represented the bottle to be given to the father of the girl. ”

As the Court was unacquainted with any such alleged custom it put the following questions to the Native

Assessors

(1) Is there such a custom?

(2) What is the Native custom in regard to presents made to the parent of a girl about to be

married?

(3) In the event oi the father of the girl being dead to whom would such p. esent be pays Le Would it go to the heir or to the head cf the kraal at which the girl live.?,?

The Native Assessors furnished the following replies

(1) According to Xcss custom the matter o: one bottle is not a custom and is An e an which a person may do as he likes.

(2) This is not a custom but a young man carries with him a bottle of brandy so that he mr y have a chat with the girl's father. _ acme- times it is difficult to get a permit U liquor 30 he pays If/-.. he cannot be called upon to pay it as it is nou a custom,

(3) If the girl's father is dead that bottle of brandy is given to his heir with whom the young man will speak. It is not a custom.

It cannot be the case tl\a '> two sheep coux< have been paid for the bottle but lust 1 ve been paid as dowry..

It would appear that the two sheep, whjch claims to have been paid to him as a gib ree^y portion of the dowry and should have been av.orce,

Dcfer dan t formed

to Plaintiff.

Even if they were paid custom which this Court would b is contrary to public policy.

as the "bottle" this i e prepared to recognise

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not a as it

The Plaintiff has, however : accepted the decision of ine rxan failed to include it in his cross-

the Court below and has

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appeal and in the circumstances this Court does not feel justified in interfering with that portion of the judgment.

The result is that the are dismissed with costs.

appeal and cross-appeal

CASE NO: 18.

NQLAIVI . GQALANA vs. OUMTIJ Gcftl.ANA .

« 17th August, 1935. Before H.G. Scott Esquire and

Messrs. R.Fyfe King and A.G. McLoughlin members of the N.A.C.

Claim against widow for delivery of Estate stock wrongfully removed - Counterclaim for removal of guardian and allotment of separate kraal to widow - Costs out of Estate.

(Appeal from the Court of Native Commissioner :M CAN PULI) .

Plaintiff, the eldest son and heir of the late Gqalana in his Great House, claims from Defendant, wife of the :^adi of the late Gqalana's Great House, who has no sur- viving male issue, the restoration of nine head of cattle and ten sheep or their collective value £32, on the ground that she wrongfully and unlawfully removed the said stock, being estate stock, from the kraal of the late Gqalana and out of the possession of Plaintiff .

Defendant denies the Plaintiff’s right to the possession and control of the estate stock on the ground that he has illtreated her and driven her from his kraal and has spent for his own purposes the dowries of two of Defendant's daughters and now seeks to obtain unfettered control of the last remaining dowry. She admits removing the stock in question but avers that she was justified in doing so for the protection of herself and her legal rights. She denies that the ten sheep are estate property and avers that they are the progeny of stock given her by her people about 1908.

In reconvention Defendant (Plaintiff in recon- vention) claims the removal of Plaintiff (Defendant in recon- vention) from his position as guardian and the appointment of some person in his stead and further prays the Court to appoint some place where she may reside with her stock free from the interference and control of Defendant in reconvention

On the claim in convention the Assistant Native Commissioner gave the following judgment :-

"For Defendant for 10 sheep. It is further ordered "that Plaintiff khall, within one month from the "date hereof, assemble all his adult relatives of "Tyalibongo 's ward in the presence of the Headman "for tie purpose of appointing some place, other than "Plaintiff's kraal, at which Defendant may reside "with the estate cattle herein, under the supervision "of a male adult relative of /Plaintiff , but subject "to Plaintiff's control. Upon failure of Plaintiff "to comply with this order, Defendant may reside with "Estate cattle with her own relatives.

"For Plaintiff for restoration of 9 head of cattle or "their value £27, subject to his having complied "with the order in regard to Defendant, with costs "of suit’.' and dismissed the counterclaim..../

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PAGE 52.

Against this judgment an appeal was noted on the following grounds

(1) That the judgment is against the v/eight of evidence and the probabilities.

(2) That the evidence establishes a failure on the part of the Plaintiff to observe the require- ments of Native Law in relation to the relative positions of the parties.

(3) Ihat the evidence and the probabilities establish a definite illtreatment and a driving away.

(4) That the order of the Acting Native Commissioner leaving the selection of a kraal to the Plaintiff's relatives is in the circumstances tantamount to allowing Plaintiff to adjudicate upon his own case. The Acting Native Commission :er having found that there is sufficient cause to separate the parties should have selected the place himself, and should in all the circum- stances have sanctioned the widow returning to the kraal at which she lived after her husband's death.

(5) That the Acting Native Commissioner has not used a judicial discretion in awarding costs dm favour of the Plaintiff.

(6) Judgment should have been entered in favour of the Plaintiff in reconvention on her claim in reconvention with costs in reconvention.

The onus being on Defendant she proceeded to give evidence of illtreatment and maladministration by Plaintiff and cites the following instances :-

(1) That on the death of the late Gqalana Plaintiff accused her of being the cause of his death and drove her away.

(2) That Plaintiff took her property without consulting her.

(3) That the dowries of three of her daughters who were married while she was living in Mqanduli were taken by Plaintiff and used by him to pay dowries for his wives.

(4) That if the cattle (estate stock) trespassed on his lands he made her pay damages.

(5) That he took away her land.

In regard to point No.l the only witness called to support Defendant is her brother Mfanta and his evidence is hearsay. He states that vhen Defendant returned to he r own people she reported that she had been driven away by her husband, not, it will be noticed, by Plaintiff.

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Her evidence in regard to the second ground of complaint is entirely unsupported and is not credible in view of the fact that she has never, as far as the record shows , made any complaint in regard to the disposal of stock by

Plaintiff

In regard to the third ground of complaint she is also unsupported. Her own evidence on this point however is quite inconsistent for she says '’All my daughters got married while in Mqanduli location, I had their dowries. My ov'n son died and Quint u became interested in me again and oersuaded me to come to his kraal. I went to live at late husband s

kraal for about 8 years. Stock from daughters’ dowries went

with me to husband’s. Had six cattle ana 40 sheep and goats.11 Later she says "Dowries of three daughters married at Mqanduli location were taken by Plaintiff. He has paid these away as dowries for his wives." It is clear that these two statements cannot be reconciled for in the first she says she got the dowries of her daughters and only took with her to Umtata six head of cattle whereas in the second she says that Plaintiff took all the dowries of the three daughters married in Mqanduli, She does not attempt to explain how many cattle were paid as dowry for each daughter nor how Plaintiff, who resides in a different district, got hold of these dowries. Furthermore her statement chat Plaintiff took all the dowries is evidently an exaggeration seeing that she was still in possession of six battle from these dowries when she removed to Plaintiff's kraal in Umtata. The fact that she returned willingly to Plaintiff shows that she had no real grievance against him up to that time.

The complaint in regard to the Plaintiff demanding damages from Defendant when her cattle trespassed in his lands is also unsupported.

The complaint about the land is also unsubs tanti at- :ed and it is significant that the sub-headman made no mention of this in his evidence.

In the opinion of this Court Defendant has not shown such ill treatment and maladministration on the part of Plaintiff as would justify an order removing. him from h:'s guardianship, and placing the estate stock with her free Yom interference and control by him.

The correct perspective in this case is obtained when viewed from the standpoint that up to the time oi the death of Defendant's son her house was established as r separate unit in the Mqanduli district with the knowledge and consent of the Plaintiff. Certain stock was le^t with that house by the Plaintiff himself for the use of that house.

It was at his instance that this state of ’fairs nr-

:upted and now when, through di sagreernents which have .ar sen comparatively recently, it becomes necessary to restore the sta tus quo this Court sees no reason why the Defendant should not be allowed to revert to the position she occupied originally, viz. that she should return to the qdi . oure kraal in the Mqanduli district, and tn.at the stock formerly held there for her suoport be restored to that, kraal subject to such supervision as Plaintiff may deem necessary.

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Defendant will not be allowed to dispose of stock belonging to her house as distinct from those held in her cn right as the dominium in the house property vests in the heir (Plaintiff), The heir on the other hand has no right to remove the house stock to his own kraal against the widow's wishes. If he is not prepared to live at the late owner's kraal (here Defendant's late son) he must place someone else there ( Thoma s Z i buti vs . N oy e nk i 6 N . A . C . 21 ) .

This Court agrees with the .judgment of the Assistant Native Commissioner dismissing the counterclaim and also with his judgment awarding the sheep to Defendant in her own right for the reasons given by him.

The Assistant Native Commissioner has, in effect, refused to grant the claim for the restoration of the remaining estate stock as prayed but has made an order leaving the stock in Defendant's possession under Plaintiff's control and, only subject to this, has made an order for the res tor- ration of nine head of cattle to Plaintiff, a somewhat con- tradictory ruling.

This Court feels that justice will be done by varying the judgment to reaar-

"For the restoration by Defendant of the nine head "of estate cattle to the kraal formerly occupies by "her in the Mqanduli district, if available, or to "some kraal mutually agreed upon between the parties, "failing which to some kraal to be selected by the "Native Commissioner, Mqanduli."

On the question of costs this Court feels that while on the one hand the Defendant has not acted in accord- ance with custom in summarily removing the stock from Plaintiff's kraal yet plaintiff in not entirely free from responsibility for the situation which has arisen.

Although Defendant failed on the counterclaim she succeeded on the main claim in getting judgment "'or a portion of the stock wrongly claimed by Plaintiff as hds own; she obtained what is virtually an order dismissing the claim of Plaintiff for restoration to him of the balance of the stock claimed.

In all the circumstances of the case it would be unjust to make her pay the costs from the stock held n her own right, viz:- the sheep.

Subject to the variation in the judgment mentioned above the appeal is dismissed with costs but it is ordered that the costs in this Court and in th - Court b’ low be borne by the estate.

CASE NO: 19 .

fCOi_>I iviGADibnl vs. N KO AN jj Gyl B1 NKcu .0 .

IJMIAT&. 17th August 1935. Before ,G. Scott s ui *<

Messrs. R.Fyfe King and A.G. lVicDoughlin members of the N..\.C.

Marriage -"Tainted blood" - Right of father to repudiate son's marriage on ground of - Cannot do so after son'.; death where marriage recognized during his lifetime - Grandson may

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bring. action to be declared heir during his grandfather's lifetime - Twa.la - Tembu and Pondornise custom.

(Appeal from the Court of Native Conmiss ioner ;MQA3NDULI . )

The Fla inti ff (now Respondent) claims a declar- ation of rights declaring him to be the legitimate son of the late Gqibinkomo and as such the heir to the Defendant (Appellant) and in his particulars of claim states

(1) That Plaintiff is a minor and is assisted in this action by his mother and legal guardian Nogenile Gqibinkomo .

(2) That the said Nogenile entered into a customary union with the eldest son and heir of the Croat House of Defendant ? one Gqibinkomo, and the latter paid as dowry 9 head of cattle to Mzamo Sompa , the father of the said Nogenile.

(3) That Plaintiff is the eldest son and heir of the union between the late Gqibinkomo koli and the said Nogenile.

(4) That Plaintiff is also the heir of the said Koli Mgadeni .

(5) That the said Koli Ggadeni denies that Plaintiff is his heir through his eldest son Gqibinkomo and asserts that Plaintiff is an illegitimate child and that his late son Gqibinkomo had no legitimate issue .

Defendant's plea is as follows

(1) That he admits paragraphs (1) and (5) of the particulars of claim.

(2) That he denies paragraphs (2), (3) and (4) of the said particulars except that he admits tnat Plaintiff is a natural son of the said Nogenile by the late Gqibinkomo and that the latter was the son and heir to the Defendant Great House.

(3) The Defendant further pleads that if the said late Gqibinkomo did enter into a customary union with the said Nogenile it was without his, Defendant's knowledge or consent and would have been against his wish and that, therefore, he, Defendant, is not compelled in accordance v/ith Native law and custom to recognise the said union.

The Acting Native Commissioner entered jud.cmant '‘or the Plaintiff as prayed and Defendant has appealed on the following grounds

(a) That the judgment is against the probabilities of the circumstances surrounding the question at issue and the veight of the evidence adduced to the effect that there was no customary unior entered into between the late Gqibinkomo and Nogenile and that tne cattle paid to the sa .d

o. . ./

PAGE 56.

Mzamo Sompa were paid as fines.

(b) Should the Appeal Court hold that the said customary union has been established the Appellant will submit, further, that such union was entered into without his consent and against his wish.

That he had valid reasons for objecting to such union and that he is therefore not compelled to recognise such union as conferring rights upon Respondent of inheriting the Appellanc’s estate and that Native law and custom permit him to object to his estate being inherited by "tainted'1 blood .

'There is ample evidence on the record to support the Acting Native Commissioner's finding that there was a marriage between the late Gqibinkomo and Nogenile and that Plaintiff is the eldest son and heir of Gqibinkomo and as such the heir of Defendant.

At the request of the Appellant's Attorney the following summary of the facts of this case and certain questions based thereon were put to the Native Assessors, Viz:- Samuel Pantshwa, Mqandulij Longden Gotyato, Engcobo; E.C.Bam, Tsolo, Jongilizwe Tyali, Elliotdale; and Candilanga Makaula, Umtata

"Koli's son Gqibinkomo wanted to marry PLzamo’s daughter. "Koli objected to the marriage because he objected to the "family in that

'{1), Mzamo (girl's father) had metshaed with Koli's "sister Xelekazi .

"(2). Mzamo (Girl's father) married Koli's daughter-in- "law,

"(3). Mzamo' s son eloped with Koli's cousin.

"(4). Mzamo's son thereafter metshaed with Koli's "daughter. He was fined.

"(5). He again committed adultery and was fined in Court. "(6). Mzamo's son (Sopezu) committed adultery with Koli's "wife.

"(7). Sopezu committed adultery with another wife of "Koli ' s .

"Koli objected to the girl for above reasons as her "blood would spoil his estate .

"Notwithstanding this the son married the girl in "opposition to Koli's wishes and lived with her at loli's "kraal till his death, and had four children including a "son named Nkonwana a boy about seven years old now. "Koli paid Gqibinkomo 's taxes even after he got married "and paid for land used by his wife.

"Koli had woman struck off the tax registers two years "after Gqibinkomo 's death and now refuses to recognise "her or her children or any heritable rights of her* son "Nkonwana .

"Koli has waived all claim to cattle paid for the woman "or any claim to her daughters and objects to Nkonwana

"inheriting. . „ /

PAGE 57 .

“inheriting his (Koii's) estate.

"Nkonwana now sues to be declared the heir and "grandson of Koli.

"In these circumstances

"(1) Can he bring an action to be declared heir while "his grandfather is alive.

"(2) Is Koli compelled to recognise him as heir to his '(Koli ' s ) es tat e in view of the above facts and his (objection to the marriage.

"(3) If he had a genuine objection to the marriage "what action should have been taken at the time or "during Gqibinkomo’s lifetime to give expression co "his objection?

"(4) Ah at is the i'embu custom with regard to the "payment of ‘twala.1 cattle?"

The Assessors gave the following replies

(1) Yes. We say that the grandson has a right to bring an action to be declared heir although his grandfather is still alive. It is according to Native Custom that if thereiis a dispute and one considers he has a claim he may bring an action before the Chief so that the dispute may be settled.

(2) We consider that Koli is obliged to recognise Nkonwana as his heir. The seven reasons including the object- ion of Koli to Gqibirkomo marrying the girl in question - we don’t see that these reasons can oust Nkonwana from his heir- ship because his mother was married and dowry paid for her like any other woman. Koli cannot now take up the attitude that his grandson cannot be his heir.

(3) If Koli was definitely refusing he should not have paid dowry for Mzamo's daughter or allowed her to go through the marriage ceremony. The father of a youiig man if he refuses to allow him to marry a girl usually goes and gets another girl for him arc brings her to his son and says "Here is the girl I want you to marry because I do not wish to have any relation. ship with the family to which you are prooosing to marry into."

During Gqibinkomo ‘ s lifetime there is nothing Koli could have done because Gqibinkomo had already married the girl. Koli could not have taken steps to disinherit Gqibi- nkomo because the girl had already been married and he had recognised her.

Our opinion is based on the assumption that there was a marriage.

(4) According to Tembu custom there is only one beast payable for twala irrespective of the number of times a girl has been twalaed. Among the. Pondomise no beast is payable for twala. If as a result of the twala the girl became pregnant five head would be payable in addition to the twala beast.

If one twala beast were paid and then subsequently six were paid this would show that the latter were dowry and not damages for seduction.

This Court is in entire agreement with the opinion expressed by the Native Assessors,

The appeal is dismissed with costs.

case no; 20. . ./

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?3ge_53

CA3E_ND_._20.

MAKI MZIBA. vs, SHADE MGQOBOKA

BU T TE RW OR TTT : 28 Ah October 1935. before H«G * Scott, Esquire ,

President ? and 'losers. C. Ross Norton and 111. de Viliiersg Members of the N.AeC.

Engagement Cattle: Return of on re.i ecti.cn of bridegroom by

bride ;

■.lie ga ti on

tattle oaid as damages for forcible

abduction and seduction. Illegal contract must be proved and cannot be assumed. Whether parties in pari delicto, person who hands over property *n pursuance of en illegal agreement can only recover if he proves that he acted un duress and the other party f iled to carry out his part the agreement,

Twala : Retention of abduction beast cut of dowry when

marriage not completed and dowry returnable,

(Appeal from the Court of Active Commissioner! Nqamckwo./

In the Court tele

■e toon cert ov<

cross-appellant) claimed from defendant ^ appellant enc ci 23- respondent) three head of ca + tle or- their value lid and

CO!

i sur

;no

i states cr. at r//uk.e zi •

he became engaged go defendant s daughter December 1934, and paid four neat of cattle on account dowry, cne of which str -yed back to h'.s he abducted the said Lawukazi end c,’r' stored t o defe ncl a n t V, kraa 1 th e .

Law'ukazi was resecting him .

nraoJ , t men v. oer she : 3 tei notified him t*

paict out ' for the fc

'he Dies admits that Thr 3 head of c tie states that Ghoy ivei 5 p Id s s f t av nee i

•ci 1

aOcuctxon an

e due :io:

in

ihe Native uemmi s

plaintiff lo

eturn ox v.,yrc t

ner er.terec Juclgmer.

i -av.'uuas .

' -»r. J~ "N c

lii-a de no order as do cos us - not op the grounds set 'ut summons but on the ground of equity and public ^poiiC; * as v/a s alleged that plairtifl had *rap : ■ < ic i

on the follow:"

Against this judgmei - th ief< ndsnt ha s

13 £

2TCur:dr : -

(a) Phat the judgment of the Native Coctmd ssionei inco isist nt“ ith law, an< , alter r ti v

Co) 'That the principle adopted ihoulc onlj

regard to the third east paid over to appe by respondent .. r s 1 two head o

(on as fine to ' i tio and o * ; -

seduction) wer

ing to Native custom and we *o v/i si infly pe id,

and the plaintiff i :ross-o?pealed or. the following grounds

(1) Th* ' C

against u weight of evidence arc the probe- oil i f L e s

(2) That, r t . 3--t.au

evident vhich amounts to compounding s felon ’or wrl ich he w j prim • : 1 y i spob? blc , iho crus oi proof '.hereof 1 upon h 1 1 n to prove h

a 11 eg.-.; ti ox?

it

O Pi

. k-

Fa go §g?

? -S" ti ons beyond doubt, which the plaintiff claims he has failed to do.

ary for the Defen-

(3) In ord^r to succeed in his defence it is nec^ss-/ den^t to prove that the girl Lawukazi was in ffect raped by the plaintiff, which, as a result of his own admitted illegal conduct, he has made it impossible to substantiate beyond all doubt.

(4) Under these circumstances the Court should have entered Judgment in favour of the plaintiff in terms of the prayer in his summons contained.

The Native Commissioner does not find any facts proved but in the course of his reasons for judgment states

nIf this were an ordinary case the Court would have "given an absolution judgment, but assuming that the "defence evidence is true (and I am asked to b^li-oV^ it) "the following facts ^re established:- (1) That de- fendant knew that a serious criminal offence had "committed and by threats of a criminal prosecution "forced payment from plaintiff. (2) Th~t by »ccept- "ing payment and abstaining from prosecution defen- dant has compounded a crime. (3) That plaintiff "was not in pari delicto.

"Under these circumstances it became necessary to d._ - "tormina whether defendant should be allowed to rc- "tain the cattle".

and then proceeds to discuss the position of the parti s to an illegal contract and comes to the conclusion that in this case the plaintiff is not in pari delicto and ordered the cattle to be returned to him but made no order as to costs presumably on the ground that the plaintiff, while not equally at fault, was a party to the contract which he held to be illegal.

If the evidence established the fact that payment was forced from plaintiff under threat of a criminal prose- cution he might have been able to recover but only (if the defendant had failed to abide by his part of the contract by reporting the crime to the police after undertaking not to do so .

This is clear from the case of Wells & another vn du Preez (23 S.G, 284) quoted by the Native Commission r in support of his statement that Plaintiff in ths pres n ca. s4 was not in pari delicto . In that case the plaint, if , a person who had stolen two heifers, the property of Wells was induced by Wells and his attorney, one van dor* Po^f1 to deliver a horse and an ox to Wells, being led by v-e der Poel and Wells to believe that in consideration o such delivery he would not be prosecuted for t? - th ft. Wells , however , subsequently lai complaint ■ 1

thief was prosecuted, convicted and imprison .d. Aft r serving his sentence he sued Wells °nd van der Pc 1 for the proceeds of the horse and ox which had meantime b . n sold by van der Pool as auctioneer. The Count held t t he was entitled to recover the proceeds on the ground th^t there had been a total failure of the consideration uc n which the d . liv ry was . and furth< r, that the p r on to whom the property was delivered were in n position to* exercise and did oxercis such strong pressure in ord r to obtain deli /ery that it could not be said th- t deliverees we r - in pari delicto .

In the case of Katz vs. Levy (1914 W.L.D. 88) the Court said:-

"An exception is recognised in English Law, to thoi

rule ....

! t

:

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.3

!

' : •

rule that p rtics to fraudulent agreement cannot ue upon it; thet the less guilty party may recover. Assuming that this exception is in force in" the Reman Dutch .Law , it applies only where there has been oo- pression or extortion and does not cover the case of a voluntary purchaser."

On the authority of these cases it appears that a plaintiff who had handed over property in pursuance of an illegal agreement could only recover if it were proved that he had acted under duress and if the other party had failed to carry out his part of the agreement.

In the course of his reasons for judgment the Native Commissioner says

"It _ is common cause that the three head of cattle were "paid and if they were not paid as dowry they must "have been paid as fine and if this is so the only "possible conclusion one can come to is that the twsla "was an aggravated one, namely accompanied by seduc- tion and assault. Otherwise the number of cattle "paid cannot be justified.

"If this is the case there can be no doubt that the "cattle were paid under threat of a criminal orosecu- "tion. "

and he then quotes certain extracts from the evidence of defendant and his witnesses to support the finding that there was such a threat. But, in the opinion of this Court, that evidence does not support that conclusion for it goes no further than to indicate the intention of de- fendant to prosecute if plaintiff did not pay. In fact defendant definitely says "I did not threaten him with criminal prosecution." Consequently there is no evidence to show that plaintiff paid over the cattle under compul- sion and if he did not he would not be entitled to recov er them .

We are of opinion, too, that the Native Commission. r erred in holding that an illegal contract had been conclud- ed in the absence of positive evidence to that effect. In giving judgment in the case of Cstate Fuchs vs. D’Asson- ville, (O.P.D, 21/3/35, Justice Circular for March 1935 para. 152 j Vol. 25 Prentice-Hall (1935) L„4) Krause J.said :

"In Scott vs. Brown, Doering McNab & Co. (1892) 2 4,

B. "B . 724 Bindley J. says:- Bx turpi causa non oritur "actio. No Court ought to enforce an illegal con- tract or”allow itself to be made the instrument for "enforcing obligations arising out f contract or "transaction which is illegal, if the illegality is "duly brought to the notice of the Court, and if the "person invoking the aid of the Court is himself i. - "plicated in the illegality. It does not r

"whether the defendant has pleaded the ill; ' ity "whether he has net. If the evidence adduced b\ t le "plaintiff proves the illegality the Court ought nc t "to assist him. r In the sam< case at p Smitu

"L.J. says:- ’Now, how does the law st "subject? If a plaintiff cannot maint* in his :au • "of action without showing, as part oi icl u i

"action, that he has been guilty of ill Lty,

"the Court wi 11 not assist him in his caus< of ctd "This was decided in Taylor vs. 'e r (1869) L.R.

"4 Q.B. 3 3 tl L3 ,

"also in Be bd vs. Ph spate Sewag'e Co. (1876) 1. 7. "B.D . 679 when i d , , 1

"being app< rent, the Court would not interfere.*

"In th< resent ase, t L3 ill Lit;

was... .

"was neither pleaded nor was there any reliable evi- dence to prove it.... Furthermore there is no evi- dence on record of such a convincing nature, as dould entitle the Court, either ex mero motu or at "the request of the defendants, to deal with the mat- "ter.... The onus would have been on the defendants "had the special defence been timeously pleaded, crd "not on the plaintiff."

It is. clear therefore that the Court is not entitled, either of its own motion or on pleading, to assume that aft illegal contract exists unless there is convincing evidence on the record to prove it. It has already been stated that the evidence does not show that plaintiff paid over the cattle under duress and we are, therefore, of opinion that the Native Commissioner erred in enter- ing judgment for plaintiff for the reasons given by him. But that does not end the matter. It is still necessary to find out which of the parties is telling the truth.

The Native Commissioner states that there was nothing in the demeanour of the witnesses which would lead him bo believe or disbelieve any particular set and this Court is therefore in as good a position to assess the weight and value of the evidence as he was.

The plaintiff's witnesses speak to an engagement to marry between plaintiff and defendant's daughter, Lawu- kazi, and the payment of four head of cattle on account of dowry, one of which strayed back to plaintiff's kraal, and is not included in the claim. After the payment of these cattle plaintiff twalaed Lawukazi and took her to Goduka’s kraal (the kraal of his mother's people) in the Tsorno district. This was or a Friday. Ha says that he did not have connection with her at this kraal and is supported by her in this statement. Zenzile, plaintiff's brother, then went to Goduke 's kraal and fetched plain- tiff and Lawukazi and took them to his own kraal.. This was on the Saturday. On the Sunday defendant arrived and demanded his daughter and was very annoyed but did not demand a fine. Defendant took his daughter away -.no subsequently Zenzile sent messengers to him to advise him that the