OWNERSHIP AND POSSESSION

Vindicatory action distinguished from spoliatory proceedings.

EVIDENCE.

Onus

of proof in vindicatory action where Plaintiff despoiled of property in dispute.

Summary:

This was an appeal from the judgment of a Native Commissioner’s Court for Plaintiff (now Respondent) as prayed, with costs, in an action in which his claim against the Defendant (present Appellant), as

amended

with the leave of that Court, was for fourteen head of cattle and one calforpaymentof their value,£143Os.Od.

The

Plaintiff averred, interalia, in the particulars of claim in his

summons

that he was the owner of this stock and that the Defendant had unlawfully taken it from his posses- sionwithout hisconsent.

Ground

two of the notice of appeal reads as follows:

—

“

The

action was in the nature of a spoliation action, and the two main essentials (a) that Plaintiff was in peaceful and undisturbed possession of the livestock and (b) that the Defendantdeprived him ofthat posses- sion forcibly or wrongfully against his consent, were not clearly proved^”.

Held: That the action was a vindicatory and not a spoliatory one in that the Plaintiff as an alternative to the return of the cattle claimed theirvalue.

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Held further: That, as the Plaintiff established the alleged spoliation the onus of proving the ownership of the cattle rested on the Defendant.

Cases referred to:

Sihanyoni versus Molise, 1929, T.P.D.342.

Ntlantsana versus Ntlantsana, 1957, N.A.C. 80 iS), at page 84.

Balooi versus Balooi, 1952, N.A.C. 154 (N.E.), at page 156.

Artcr versus Burt, 1922,A.D. 303, at page306.

Appeal from the judgment of the Native Commissioner, Fort Beaufort.

Balk (President):

This is an appeal from the judgment of a Native

Commis-

sioner’s Court for Plaintiff (now Respondent) as prayed, with costs, in an action in which his claim against the Defendant (present Appellant), as

amended

with the leave of the Court, was for fourteen head ofcattle and onecalfor payment oftheir value, £143Os.Od.

The

Plaintiff averred, inter alia, in the particulars of claim in his

summons

that he was the owner of this stock and that the Defendant had unlawfully taken ^it from his possession without his consent.

In her plea the Defendant denied the alleged spoliation and that the Plaintiff was ^the owner of the stock and stated that it

had been given to her legally ata family meeting concerning the affairs of the kraal atwhich itwas decided thatthe Plaintiff had no ^right, claim or title thereto or interest therein.

The

appeal isbrought onthe followinggrounds:

—

“_1. That there was evidence of permission given to the Defen- dant to remove the cattle, supported by the Mother of the Defendant but the Court stated this evidence did not impress the Court.

2.

The

action was in the nature of a spoliation action, and the two main essentials (a) that Plaintiff was in peaceful and undisturbed possession of the livestock, and (b) that the Defendant deprived

him

of that possession forcibly or wrongfully againsthis consent werenot clearly proved.

3. That theevidence of the Plaintiff

was

extremely conflicting, and the judgment was therefore wrong in law.

4. This was not a vindicatory action, but a spoliation case, and the evidence adduced wasin favour ofthe Defendant.

5.

The

evidence of the Mother of the Defendant was of a very solid and important nature, and corroborated the story of the within Defendant, that she had permission to take thecattle.

6.

The

judgmentshould have been in favour of the Defendant with costs.”

The

action is a vindicatory and not a spoliatory one in that the Plaintiff as an alternative to the return of the cattle claimed their value, see Balooi versus Balooi, 1952, N.A.C. 154 (N.E.), at page 156.

It.is

common

cause that the cattle were removed by the Defendant whilst they were in the Plaintiff’s possession and the Plaintiff’s evidencethat theDefendantdid so illicitly,i.e.,without his consent, is to be preferred to the Defendant’s testimony that the Plaintiff consentedthereto in view of the blatant discrepancy between it and her mother’s evidence for her in regard to this aspect, the Defendant stating that the Plaintiff gave his consent to her taking the stock ata family meeting whereas her mother

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stated that all that was discussed at that meeting was

money

and that the Plaintiff had told the Defendant to take her cattle

when

hedrove her

away

afterthemeeting.

The

Native

Commis-

sioner, it should be added, stated in his reasons for judgment that the Defendantandhermother did not impress himas honest witnesses.

It follows that the Plaintiff established the alleged spoliation so that the onus of proving the ownership of the cattle rested on ^the Defendant, seeSibanyoni versus Molise, 1929,T.P.D.342, cited in NtUintsana versus Ntlantsana, 1957, N.A.C. 80 (S), at page 84.

In her evidence the Defendant claimedto bethe owner of the cattle which it is not disputed are the increase of a

cow

paid as dowry for her to the Plaintiff, on the ground that it was customary for the dowry cattle paid for a bride to be given to her. But, apart from the fact that this is not the custom, there is nothing to indicate that the cattle actually paid as dowry for her were givento her but on thecontraryit is manifestfrom the evidence of her

own

witness, i.e., her mother, that this was not thecase as the latterstated that the Defendant’s brother was the owner of the cattle.

The

only other evidence relative to the Defendant’s ownership of the cattle is her statement and that of her mother that the Plaintiffhad told her (Defendant) totake the cattle presently in dispute which are the increase of one of the dowry cattle, but as pointed out above theirevidence in this respect is unacceptable.

The

Defendant, therefore, failed to prove that she was the owner of the cattle so that thePlaintiff wasentitled to judgment as prayed, with costs, there being no

room

for absolution from the instance as the onus of proof rested on the Defendant, see Arler versus Burt, 1922, A.D. 303, at page306; andthe fact that the Plaintiff also does not, on the evidence, appear to be the owner of the cattle as they arc the increase of a

cow

paid to him as dowry for the Defendant

when

he negotiated her custo-

mary

union whilst she lived at his kraal and as the Defendant’s brother appears to be her senior surviving male relative on the paternal side and as such the “ eater” of this dowry, docs not affect the position that the Plaintiff was entitled to judgment seeing that the criterion is the Defendant’s failure to discharge the onus of proof of ownership resting on her.

The

appeal should accordingly be dismissed, with costs, Yates and Neuper, Members,concurred.

For Appellant; Mr. B. Barnes of King William’s

Town.

For Respondent: Mr.

M.

Anderson of King William’s

Town.

SOUTHERN ^NATIVE APPEAL COURT.

NOKOYO

vs.

GIDA.

N.A.C.

CASE

^No. 39of 1961.

King William’s

Town:

1st March, 1962. Before Balk, President, Yates and Neuper,

Members

of the Court.

EVIDENCE.

Where

nature of defence evidence not disclosed by putting it to Plaintiff’s witnesses in cross-examination, open to Plaintiff to apply to the Court for leave to call evidence in rebuttal.

Evidencial value ofdocumentscomprising a record ofpayments and receipts for

money

issued by third persons to one of parties.

53

Summary: The

facts of (lie case are not material to this report.

Held: That, where the nature of the defence evidence is not disclosed by putting it to the F’laintiff’s witnesses in cross- examination. it is open to him to apply to the Court for leave to recall them in rebuttal of such evidence.

Held further: 'Ihat, documents comprising a record of pay- ments and a receipt for

money

issued by third persons to one of the parties are not probative of the truth of their contentsas they arehearsay in this respect.

Cases referred to:

Holland versus Piccione. 1937, (1) P.H., F. 21 (N.P.D.).

Middleton versus Carr, 1949, (2) S.A. 374 (A.D.), at pages 385 and 386.

SOUTHERN ^NATIVE APPEAL COURT.

MCWEBENI TRIBAL AUTHORITY

vs.

NDAMASE.

N.A.C.

CASE

No. 59 of 1961.

Umtata: 16th May. 1962. Before Yates, Acting President, Collenand Warner,

Members

oftheCourt.