LAW OF DELICT

64

applicant had

know

of the action andthatitaffected him”*buthad not applied tothe Courtfor leave to intervene; forthe applicant

may

haveheard from other sources of the default judgmentafter ithadbeen givenandthereupon havesought confirmation thereof from theCommissioner.

It is perhaps also as well to point out that the Commissioner erredin holdingthatit wasfor theapplicantto

show

thathehad not been in wilful default as in applications in which such default is an issue the onus of proving it is on the respondent, seeSilberversus Ozen Wholesalers (Pty.),Ltd., 1954,(2) S.A. 345 (A.D.), at page 352.

The

Commissioner’s attention is also invited to the fact that the default judgment is ineffective insofar as the award of the progeny of the stock is concerned as such progeny has not been specified in the claim or judgment.

The

appeal should be dismissed, with costs.

Yates and Fourie, Members, concurred.

For Appellant: Mr. F. G. Airey of Umtata.

For Respondent: Mr. K.

W.

A. Muggleston of Umtata.

SOUTHERN BANTU APPEAL COURT.

MWANDA

vs.

KUSE.

N.A.C.

CASE

No. 27of 1962.

Umtata:

18th September, 1962. Before Balk, President, Yates and Fourie,

Members

ofthe Court.

65 Cases referred to:

Viviers versusKilian, 1927 (A.D.) 449.

Nodada

versus

Mokoena,

1942, N.A.C. (C.

&

O.) 80.

Nazo

versusLuhisi, 1946, N.A.C. (C.

&

^{O.) 18.}

Bukulu versus Cehisa, 1946, N.A.C. (C.

&

O.) 45.

Zihaya versusMaguga, 1947, N.A.C. (S.D.) (C.

&

O.) 7.

Mdinge

versus Kotshini, 1 N.A.C. (S.D.) 270. atpage 272.

Matolengwe ^{versus Pateni,} 1 N.A.C. (S.D.) 106.

Appeal from judgment of Bantu Affairs Commissioner’s Court, Cofinvaba.

Balk (President);

This ^is an appeal from the judgment of a Bantu Affairs Commissioner’s Court awarding tothe plaintiff (presentappellant) the

sum

of

R40

and costs in an action in which he sued the defendant (now respondent) for

RlOO

as damages for adultery.

The

plaintiff averred, interalia, in the particularsof claim in his

summons

that the adultery had been committed with his wife to

whom

he was married according to Christian rites and that the adultery resulted in her pregnancy.

The

appealis brought on thegroundthatthedamages awarded are inadequate.

The

Assistant Bantu Affairs Commissioner’s reasons for judgment are of little assistance.

The

only relevant factor mentioned by him isthat the plaintiffcontinued to live with his wife afterthe adultery.

He

also referred to certain Bantu Appeal Court decisions but did not state in what respects he relied on them.

Why

in connection with the damages awarded by

him

in the instant case he shouldhavereferred to

Mwanda

versus Simayile 5 N.A.C. 7 is not understood seeing it was laid

down

there that the plaintiff was not entitled to recover any damages in respect of adultery committed with his wife married according to Christian rites ashe hadcondoned theadulteryand continued to live with her as is the case here.

However

that m.ay be,

Mwanda

s case fallsto be regardedas overruled bythe dictumin Viviers versusKilian, 1927 (A.D.)449,followedin

Nodada

versus

Mokoena,

1942, N.A.C. (C.

&

O.) 80, that damages are recover- able in such a case seeing that they arise from two entirely separate and distinct grounds, viz. (1) from the injury or contumelia inflicted upon the husband by the adulterer and (2)

from his loss of consortium i.e. of the comfort, society and services ofhis wife, so that wherethere isno loss ofconsortium the claimfor damagesis still maintainable on the ground of the injuryorcontumelia.

In the instant case there was no loss of consortium and the damages accordingly fall to be assessed solely on the ground of injury orcontumelia.

The

only point taken by Mr. Airey in his argument on behalf of the appellant as regards the inadequacy of the damages awarded by the Commissioner is that those damages should have borne some relation to Native customary damages awardedfor adulteryfollowed by pregnancy inthe light ofthe judgment in Nodada’s case {supra)and other decisions of thisCourt tothesameeffect,see

Nazo

versusLubisi, 1946,N.A.C.

(C.

&

O.) 18,Bukulu versusCebisa, 1946,N.A.C. (C.

&

^O.)45and ZibayaversusMaguga, 1947, N.A.C. (C.

&

^O.) 7. Inthisconnec- tion Mr. Airey submitted that as the customary damages for adulteryfollowed by pregnancy were^fiveheadofcattlethe

Com-

missioneroughtin thecircumstances ofthiscasetohave awarded theplaintiffthe

RlOO

claimedby

him

asthiswasthe present value of the cattle.

He

intimated that it was not his contention that the plaintiff was entitled to damages higher than the customary ones. That the customary damages for adultery followed by pregnancy in the district from which the instant case emanates, viz. St. Marks, is five head of cattleemergesfrom the judgment

in Zibaya’s case(supra.).

66

<•

As

pointed out, however, by Mr. Muggleston in his argument for respondent, there is nothing in the pleadings nor in the evidence indicating the value of the cattle paid in respect of Nativecustomary damagessothatthereisnobasisforthisCourt to increase the award beyond an additional

RIO

as in such a case the standard value of

RIO

per beast applies, see

Mdinge

versusKotshini, 1 N.A.C.(S.D.) 270, atpage111 andMatolengwe versusPatent, 1 N.A.C. (S.D.) 106 cited by Mr. Muggleston.

Mr. Muggleston further contended that the fact that the plaintiff had been

away

at work leaving his wife at

home

for a continuous period of three years fell to be regarded as a mitigating feature in the assessment of the damages. But, it

seems to

me

thatan inference of blameworthinessis not properly inferablefrom thisabsenceasit

may

wellhave been unavoidable.

On

thecontrary, assubmittedby Mr.Airey, thereareaggravating circumstances, viz., that the defendant took advantage of the plaintiff’s absence to seduce the latter’s wife and to commit adultery with her on a

number

of occasions at the plaintiff’s kraal.

In the circumstances the appellant ^is entitled to the increased damages within the limit mentioned above.

The

appeal should accordingly be allowed, with costs, and the judgment of the Bantu Affairs Commissioner’s Court altered to one forplaintiff for

R50

and costs.

Yates and Fourie, Members, concurred.

For Appellant; Mr. F. G. Airey of Umtata.

For Respondent^: Mr. K.

W.

A. Muggleston of Umtata.

SOUTHERN BANTU APPEAL COURT.

SELANE

vs.

NDZIBA.

N.A.C.

CASE

No. 18 of 1962.

Umtata:

24th September, 1962. Before Balk, President, Yates and

Maytham, Members

of the Court.

PRACTICE AND PROCEDURE.

Notice of appeal

—

^ground of appeal ^thatjudgment against weight of evidence ^suffices.

NATIVE CUSTOM.

Adultery

—

claim for damages

—

recognised custom for witnesses sentwith wife toalleged adulterers kraal to be questionedthere whereclaimdisputed.

Summary:

Plaintiff (now respondent) successfully appealed to a Bantu Affairs Commissioner’sCourt from thejudgment of a Chief’s Court for defendant (present appellant) in a claim for damages for adultery by the latter with his (Plaintiff’s) wife.

A

witnessto the adultery

who

accompanied plaintiff’s wife to the defendant’s kraal in connection with the claim for damages, admitted, under cross-examination, in her evidence for the plaintiff, that she (the witness) had not been questioned there.

The

defendant appealed to this Court on the ground that the judgment wasagainst the weight of evidence.

67

Held: That the Bantu Affairs Commissioner in remarking in his reason for judgment on the lack of particulars contained in the ground of appeal lost sight of the fact that in an appeal of this nature from the judgment of a Bantu Affairs Commissioner’s Court it was competent to word the ground of appeal as was done in the instant case, viz., that the judgmentwasagainst the weight ofthe evidence.

Heldfurther: Thatthe recognisedcustomaryprocedureiswhere witnesses are sent by the husband to the alleged adulterer’s kraal in connection with a claim for damages for adultery with the wife,such witnesses are questioned there as to their knowledge ofthe alleged adultery ifthe claim isdisputed.

Casesreferredto: PonyaversusSitate, 1944,N.A.C.(C.

&

O.)13, page 14.

Appeal from judgment of BantuAffairs Commissioner’s Court, PortSt. Johns.

Balk (President):

This case had its inception in a Chief’s Court in which the plaintiff sued the defendant for five head of cattle as damages for adultery with his wife, Mavanya. That Court found for defendantfor five head of cattleortheir value, RlOO, with costs, meaning no doubt no

more

thanthatit wasfinding for defendant onhisplea denying theadultery.

The

appealfrom thatjudgment to the Bantu Affairs Commissioner’s Court was allowed, with costs, and the judgment altered to one forplaintiff for five head of cattleand costs.

The

appeal to this Court is confined to fact.

The

Bantu Affairs Commissioner in his reasons for judgment remarked on the lack of particulars contained in the ground of appeal losing sight of the fact that in an appeal of this nature from the judgment of a Bantu Affairs Commissioner’s Court, it is competent to word the ground of appeal as was done in the instant case viz., that the judgment is against the weight of the evidence, see Ponya versus Sitata. 1944, N.A.C. (C.

&

^{O.), 13} at page 14.

As

the defendant’s denial of the alleged adulteryin the Chiefs

Court stood as his plea in the Bantu Affairs Commissioner’s Court, the onus ofproofrested onthe plaintiff.

As

stressed by Mr. Muggleston in his argument on behalf of the appellant, there is a vital discrepancy between the evidence of the plaintiff’s witnesses,

Mavanya

and Mandilavu, which renders suspect theirtestimonyon which the Commissionerrelied to found his judgment for the plaintiff, viz., that Mandilavu had recognisedthe personinbedin theplaintiff’shutasthedefendant onthe evening she calledthere for a potand found

Mavanya

in the same hut in her petticoat.

The

discrepancy arises from Mavanya’s statement that Mandilavu had asked her

who

the

man

lying on the bed was whereas Mandilavu denied that she asked

Mavanya

this question.

The

discrepancy appearsto havebeen overlooked bythe Bantu Affairs Commissioner for he states in his reasons for judgment that there were no discrepancies between the evidence of tnese witnesses.

As

also stressed by Mr. Muggleston, the discrepancy referred to above is heightened by Mandilavu’s admission in cross-exami- nation that

when

she accompanied

Mavanya

to the defendant’s kraalinconnection with the instantclaim,shewasnot questioned there notwithstanding that the defendant was told that she was a witness tothealleged adulteryand that thedefendanthaddenied this adulteryand had called two

men

to be present on his side

68

at the meeting; for it is inconceivable that she should not have been questioned anent what she

knew

of the alleged adultery if it had been stated that she was a witness thereto as this is the recognised customary procedure

when

the claim is disputed by the defendant; and this improbability in Mandilavu’s evidence lends colour to the evidence of Sibaka for the defendant that it

wasnotmentioned that Mandilavu was a witness

when

she

came

to the defendant’s kraal with

Mavanya

in connection with the claim. Admittedly as stressed by Mr. Airey in his argumentfor respondent, Sibaka stated in his evidence in chief that he had seen Mandilavu for the first time at the church enquiry which took place after

Mavanya

had been at the defendant’s kraal in connection with the claim. But assubmitted by Mr. Muggleston,

it is manifest from Sibaka’s replies under cross-examination that what he hadintended to conveyinhis evidencein chiefwasthat at thechurch enquiry Mandilavu was producedfor the firsttime as a witness, she having been at the defendant’s kraal

when

the claim was

made

there but she was not questioned then as there wasnothing to associateher with the matter.

In addition, as submitted by Mr. Muggleston, the discrepancy

isfurther heightened bythedefendant’sand Botha’stestimony for thedefendant that at thechurch enquirywhich preceded thetrial in the BantuAffairsCommissioner’s Court, Mandilavuhadstated thatshe had seena

man

covered with a blanketlying on the bed

in the plaintiff’s hut

when

she called there on the evening in question but that she had not recognised the man. It is true that, as stressedby Mr.Airey, theevidence ofthe defencewitnes- ses, Botha and Sibaka, indicates that the defendant’s evidence that Mandilavu had been questioned at his kraal and had stated that she

knew

nothing about the alleged adultery is false. But Botha’s and Sibaka’s evidence here shows that they were reliable witnessesasthey did not hesitate to stateundercross-examination that the defendant’s evidence was not correct in the respect in question so that Mr, Muggleston’s submission anent the discre- pancy being further heightened is sound.

Mr. Airey’s contention that the defendant’s false evidence served to establish the plaintiff’s case is not well-founded as it

goes no further than that the defendant did not establish his case as the discrepancy in the evidence for the plaintiff and the features heightening it referred to above indicate that it is unreliable; and there is no other evidence establishing the plain- tiff’s case.

It follows that the judgment of the Chief’s Court should on appeal to the Bantu Affairs Commissioner’s Court have been altered to one of absolution from the instance, with costs.

As

this alteration is not, however, a matter of substance butone of form in that there is nothing to indicate that the plaintiff has furher witnesses available, the Bantu Affairs Commissioner’s Courtshouldhave dismissedtheappealfrom the judgmentofthe Chief’s Court, with costs, but altered that judgment to one of absolution from the instance, with costs.

In the result the appeal to this Court should be allowed, with costs, and the judgment of the Bantu Affairs Commissioner’s Court altered to read as follows:

—

“

The

appeal is dismissed, with costs, but the judgment of the Chief’s Court is altered to one of absolution from the instance, with costs.”

Yatesand

Maytham,

Members,concurred.

For Appellant: Mr. K.

W.

A.Muggleston of Umtata.

For Respondent: Mr. F. G. Airey of Umtata.

69

SOUTHERN BANTU APPEAL COURT.

GUYANA

and

ANO.

vs.

MAROYANA

and

ANO.

N.A.C.

CASE

No. 5 of 1962.

Umtata:

24th September, 1962. Before Balk, President, Yates and

Maytham, Members

of the Court.