The appeal is dismissed with costs.
For Appellant: Mr. Helman of Messrs. Helman & Mic he!.
For Respondent: Adv. G. A. Coetzee, instructed by Messrs.
Smit & Malan, Vereeniging.
GUARDIANSHIP : REMOVAL OF
wrongfully, unlawfully and without his knowledge and consent from his home at Sibasa in the Transvaal by defendants during December, 1949.
Defendant, Johanna, admitted removing the children, but alleged that plamhff was not the father and that she was the natural guardian and entitled to their custody, as the mother, whom plaintiff claimed to be his wife, was her younger sister and there were no male relatives in the family.
Certain facts were admitted by the parties, viz:-
I. The children were born before the alleged marriage between plaintiff and their mother, .Mita.
2. There were lobola negotiations, in pursuance of which some payments were made by plaintiff to first defendant.
3. That the children were staying at plaintiff's kraal at the death of their mother and were fetched therefrom by first defendant.
4. Actual paternity of children is in dispute.
5. Plaintiff is a Motsweda of Venda Tribe and first defendant is a .Mokwena of the tribe in Rustenburg.
6. Only matter outstanding is who is natural father of thl children, as this is disputed on both sides.
During the course of the trial it was sought on behalf of defendant to show that one Thomas Mokwena was the father of the children. He was called as a witness, but was not made a party to the action. It is clear from the evidence that for a short while before plaintiff took Mita and the two children to his home at Sibasa, plaintiff, Mita and the children lived together in Johannesburg. Three months after Mita and the children went to Sibasa M ita died. First defendant in evidence states: "I know plaintiff, Phillip, in this matter. I first met him in 1947.
He came to my house with Mita. There was no discussion. Mita came to introduce him to us, as a man who was courting her.
Afterwards we discussed their marriage. Plain~ifT said he wanted to pay lobola for my sister, Mita. We agreed upon /obola in
£40. Plaintiff paid £11 on first occasion . . . . I got a futher sum of £6 from plaintiff in 1948." It is clear also that about this time plaintiff and Mita and the children lived together until they were taken to Sibasa. The necessary elements of a customary union are present and we are satisfied that a customary union between plaintiff and Mita did take place. It is admitted that the children were born before the union took place. If plaintiff was the natural father the rights in the children would be his, as any claims concerning the children would be merged and liquidated in the payment of lobola. As no action was taken by first defendant or any member of her family in regard to the birth of the two children, they can have no better right to the children than plaintiff. The presumption of legitimacy must be exercised in favour of the children. As between plaintiff and defendants.
the parties to this case, the presumptions and probabilities are in favour of plaintiff.
Moreover, plaintiff gave evidence of long association and intimacy with Mita and claimed that he was the father of the two children. Against this defendant alleged that Thomas Mokwena was the father. The basis of defendants case was that first defendant was the guardian of the two children in default of male guardians but the introduction of their witness, Thomas .Mokwena had startling consequences. He stated that he had married Mita by Native Custom on payment of lobola. If that be true, then, defendant cannot be the legal guardian of the chil- dren, for Thomas himself would be the1r guardian. Defendants would be entirely out of Court liS they could have no legal rights in respect ot the chtldren.
In this case, however, we are concerned only with the parties to the action. First defendant, in our opinion, had no legal
right to remove the children from plaintiff's control. and had the action been spoliatory, as it purports to be, plaintiff would be entitled to the judgment given by the Native Commissioner in his favour. But we must point out that the subject matter of this action is human beings, not chattels. Claims in actions of this nature should be in the form of a declaration of rights.
It is entirely irregular to seek an order for the delivery of children. We observe that the Native Commissioner was perturbed on this aspect of the case and rightly so. Matthews v. Haswari, W.L.D., 1937, page 110.
Mr. Brodie, for defendants (Appellants) commendably admitted the difficulty facing him in arguing the case, in view of the decisions of the Courts that guardianship in Native Law is resricted to males. First defendant, a female, in Native Law is incapable of exercising rights of guardianship and on that score she is unable to resist plaintiff's claim. In her plea defendant claimed that she was the natural guardian. This of course is not so, nor, as we have pointed out, is she the legal guardian. On the evidence in this case there is no doubt that plaintiff is entitled to claim that the children be returned to him.
Mr. Brodie took the further point that there could have been no customary union between plaintiff and Mita because the lobola negotiation and agreement to pay dowry were transacted with females. There is provision, however, in Native Law. for dowry to be paid to a person other than the true guardian. The expression " dowry holder" includes a person to whom the dowry has been paid. See Whitfield's South African Native Law, at page 148, and the case there quoted. It is not neces- sary for the purposes of this case to decide whether a woman cannot be a dowry holder because that is not in issue and on other grounds it is clear that defendant has no rights of guardian- ship over the children.
The appeal is dismissed with costs. We must, however, exercise our powers of correction to ensure that the judgment be properly expressed. The judgment of the Native Commissioner is altered to read:-
.. As between the parties to this case plaintiff is declared to be the gaurdian of the two children, Fanny and Nana, and entitled to their custody. Defendants to pay costs."
At the outset an application for condonation for the late noting of this appeal was considered. We were satisfied that there was reason to believe that some misunderstanding might have existed between the defendants and their attorney in regard to the noting of the appeal which provided a reasonable excuse and explanation of the delay. Although the probability of success might be dubious, in view of the fact that children are involved we were prepared to grant indulgence and the irregularity was accordingly condoned.
For Appellant: Adv. J. Brodie, instructed by Messrs. Gratus, Sacks & Melman, Johannesburg.
For Respondent: Mr. D. I. Gordon, Johannesburg.