OPINION OF ASSESSORS

Names

ofAssessors:

1. ErnestZulu (Nongoma).

2.

Makhukhuza

Zulu (Melmoth).

3. GilbertG. Mkize (Nongoma).

60

Question:

A

kraalhead allocatesa daughterto his unmarried son of the samehouse. Should thegirl getmarriedand thelobolo for her be paid only after the father’s death in

whom

would the ownership of the cattle vest? In the heir of the late kraalhead or in the younger son to

whom

she had been allotted?

Replies:

Ernest Zulu:

The

ownership vests in the son to

whom

the girl was allocated.

The

cattle are received and accepted by the heir of the house but on behalf of the

man

to

whom

the girl had beenallocated because the allocation meansthe giftof thelobolocattle totheyoungerson.

Makhukhuza

Zulu: If thefather gives a girl to his son,

when

the girl marries then her lobolo cattle go to the son to

whom

^the girl had been allocated. Ownershipof such cattle cannot accrue to anyone else. If the father is still alive

when

the girl marries and the lobolo is paid he accepts the cattle. So the father takes one beast as compensation for his buttocks.

The

younger son would not be deprived of the cattle because they were given to

him

by his father.

Gilbert G. Mkize: I say the house of the younger son gets the lobolocattle.

Question: Should the girl

who

has been allotted be seduced and rendered pregnant after the death of the kraalhead, to

whom

would the

mvimba

beast in respect of her pregnancy be payable?

The

heir or the younger son to

whom

she had been allotted?

Replies:

Ernest Zulu:

The mvimba

beast in such case goes to the heir.

The

father's heir.

Makhukhuza

Zulu: I say if there are 2 sons living at the same kraal it would be alright if the

mvimba

beast goes to the heir but if the younger son has his

own

separate kraal then the

mvimba

beast should be delivered to him. I say this because after the seduction of the girl this son will not get full

number

of cattle if she had not been seduced.

He

expects to get the full

number

which includes the

mvimba

beast. If

my

father gives

me

a

cow

and the

cow

breeds thebreeding belongstome,nottoanyoneelse.

Gilbert Mkize:

The mvimba

beast must go to the heir of the house.

Question: Supposing that the allotted girl had given birth to an illegitimate daughter after the allocation but before her marriage, to

whom

would the lobolo of the illegitimate daughter be payable?

To

^the heir or to the younger son to

whom

themother ofthe childhadbeenallotted?

Replies:

ErnestZulu: Itwould go totheheirofthehouse.

The

lobolo of theillegitimategirl.

Makhukhuza

Zulu: It seems to

me

itwould not be rightifthe lobolo of the illegitimate daughter is taken by the heir of the house because the girl wasallocated to the younger son before she bore this illegitimate child and

now

that she has delivered this illegitimate child I do not see

why

the rights of the illegitimate child should go to the heir of the house instead of to the

man

to

whom

the mother was allocated.

Gilbert Mkize^:

The

lobolo of the illegitimate child goes to theheirofthehouse.

61

Question: Will it m;ike any difference if she dies after giving birth to the illegitimate daughter but before she gets married andlobolowaspaidforher?

Replies

Ernest Zulu:

The

lobolo of the illegitimate child goes to the heir of the house and not to the

man

to

whom

the deceased girl was allocated.

The

allocation of a girl to a son does not

make

anydifference as far as the rights ofthe houseare concerned.

The

position would be different if the father

made

astatement to his sonto the effect that this illegitimate child would be given to the son.

Makhukhuza

Zulu:

My

answer is still: If the father after allocating thisgirl to a young son dies I donot see

why

the young son should be deprived of the rights in regard to the lobolo. Because this illegitimate child is the bowels of the girl

who

^died.

The

girl had been allocated to him.

Gilbert Mkize^{: I} say the lobolo received for the illegitimate childgoestothe heirof thehouse.

Question: Supposing the girl had an illegitimate daughter at the time shewasallottedtothe youngerson,

who

would beentitled tothelobolo ofthe illegitimatechild?

Replies:

Ernest Zulu:

The

lobolo accrues to the house.

The

lobolo of the first illegitimate daughter accrues to the house, to thefatherortheheir.

Makhukhuza

Zulu: I say if the father allocates the girl

who

has already had an illegitimate child, that child is regarded as a debt of the house. It goesto theheir.

Gilbert Mkize:

The

child is re-allocated by the father of the houseorbytheheirof the house.

Question:

What

would be the position if the younger son married before lobolo had been paid for the girl

who

had been allotted to him and had provided his

own

lobolo out of his

own

earnings?

To whom

would the lobolo of the allocatedgirlgothen?

Replies:

Ernest Zulu:

The

lobolo ofthat girl that wasallocatedto him would gototheyoungerson.

Makhukhuza

Zulu:

The

lobolo of the girlwill go tothe

man

to

whom

^she had been allocated. That is, of course, if the evidence is that the father did allocate this girl to the man.

Gilbert Mkize:

The

lobolo paid for the girl

who

wasallotted to the younger son would go to the younger son. I think that arrangements should be

made

bythe heirofthe house

if he is alive and then passes the cattle on to his younger brother.

Mr.Nichaus: Isit thenclearNative custom andalsolawthat all that isgiven onallocation isthecattlethat are givenin respect ofthat girl?

Replies:

ErnestZulu: Yes.

Makhukhuza

Zulu: Yes.

Gilbert Mkize:

The

allocation simply means a gift of the cattle.

62

Mr. Niehaus: Should the girl die before lobolo is paid there is

nodebt createdinfavour oftheyounger son?

Replies:

ErnestZulu: Definitely not.

Makhukhuza

Zulu:

No

debt.

GilbertMkize:

No

debt.

Mr. van Heerden:

Can

you

remember

an instance where a girl

was allocated to the younger sonwhereshe had anillegitimate child and she died before lobolo was indicated?

Replies:

Ernest Zulu: It is

common

occurrence but I cannot point out anyparticular case.

Makhukhuza

Zulu: No, ¹ cannot indicate such a case.

Gilbert Mkize: I can not

remember

oneparticular case. It is

common

amongstthepeople.

CraigandBotha,

Members

concurred.

For Appellant: Adv.

W.

O. H.

Menge

(Hellett

& De

Waal).

For Respondent: Mr. J. B.

Tod

(J. B.

Tod &

Co.).