The defendant denied that the plaintiff was in bona fide occupation of the premises and denied that he had made repairs or improvements to the sum of £131. After trying the issues the Native Commissioner gave judgment in favor of the plaintiff for £131.
1\GREEMENT : DEAF AND DUMB PARTY
In the present case, the defendant provided evidence that she had not received any notice to leave the premises and that she did not in fact know the complainant. Now, in favor of defendant assuming she was lawful}. upon occupying the premises it was equally lawful for the plaintiff to give notice to vacate her, and failing which he complied therewith, to apply for an order of the court for her eviction. A deaf-mute is a competent witness, provided he can express himself adequately by writing or by means of signs and symbols and he understands the nature of an oath.
Now it will be clear from the foregoing, that the question whether a deaf-mute understands the matter or not, is a fact to be deduced from the circumstances, and from the common experience of men in matters of this kind. The method of communication with the deaf-mute in question will be the one best known and practiced by and with him. He was stopped and asked to wait for the next of kin to interpret the signs.
We are in no better position than a native agent to draw conclusions from the facts and circumstances of the transaction, and unless we were satisfied that the usual precautions in dealing with a deaf-mute had not been taken, we are in no position to interfere.
The Native Commissioner satisfied himself that the claimant understood the agreement he was signing. In the reasons for his judgment, the Homeland Commissioner refers extensively to Emma as Benjamin's mother. We have therefore failed to reconcile the evidence with the Native Commissioner's finding that William Tunzi was the only son of the deceased Emma Tunzi.
Now, the only documents produced at this inquiry related to William's report of the estate to the Native Commissioner, Vereeniging, in 1942. At the inquiry the Native Commissioner appears to have accepted this certificate as evidence of a Christian community marriage property between Emma and James Tunzi. In his reasons for judgment, the Native Commissioner did not give any further reasons to support the claim regarding Christian marriage.
Now, assuming that Emma and Jamcs Tunzi were legally married by Christian rites in community of property, there can be no justification for the finding of the Native Commissioner.
TENANT LANDLORD
RENTS ACT AND
The defendant (counterclaimant) appeals against the rejection of the counterclaim. Where the Rent Tribunal orders repayment of an actual amount, a writ of execution may be issued by the Registrar of the Magistrate's Court pursuant to such order to enable the tenant to recover the amount from the landlord. But by reading Article 9 of the Act it becomes clear that if the landlord has unknowingly charged too much rent, he cannot be convicted and the tenant therefore cannot rely on this remedy.
I would like to make a few comments about the main argument being flawed. addressed to us, namely whether a tenant who has been charged an excess of rent has no legal remedy, other than the remedy provided for in Article 9 of the Act. It is clear that Article 9 provides for only one contingency. in the event that an e<;sor J. now deliberately charges too much rent. The Defendant would not be able to obtain redress under Section 9 of the Act. The purpose of the law is that no higher amounts may be demanded or paid than the amounts determined by a rental committee.
Such relief could only be obtained by way of civil action outside the scope of the Tenancy Act.
REVIE\V GROSS IRREGULARITY
The appeal is allowed with costs. the decision of the local Commissioner is annulled and the case is returned for trial. This is a request for review, due to the serious irregularity of the proceedings in case no. 703 of 1947, between Andries Masiea, plaintiff, and Michael Seemi, defendant, heard before the Native Commissioner of Johannesburg. In the relevant notes in the minutes of the proceedings, the Local Commissioner noted:-.
Salakoff (counsel for the defendant in case no. 703/49) objects to this on the grounds that it is irregular for the court to take evidence after the case is over. There is no evidence of the identity of the person who received the summons. The identity of the real defendant was only revealed after the plaintiff, Andries Masiea, began his evidence on June 22, 1948, when th!.
We have no doubt that the Native Commissioner was clear in his own mind as to the identity of the real accused.
NATIVE CUSTOMARY UNION-DOWRY
In our view, grounds (1) and (2) of the revision application have been well argued and we must find that the appellant, Micbael Msimango, was not properly before the trial court. The submission for the second respondent, Andries Masie, that the appellant's proper course was to apply to the Native Commissioner to set aside the judgment rendered in his absence, is not recommended to us. The plaintiff is legally entitled to custody of the children, while the defendant is entitled to custody regardless of the claim.
The plaintiff now wishes to claim that this document was merely a receipt for compensation of £15 paid for seducing Elizabeth by the defendant. He further claims that there was no formal handover of the bride. Formalities in handing over the bride are often lacking. This essential often has to be deduced from the circumstances of the individual case. The third essential condition, the consent of the contracting parties, is too obvious to require further proof.
As previously noted, the real issue in this case is plaintiff's attempt to enforce the payment of dowry by gaining control of the minor children.
ADULTERY DAMAGES
It follows that the Native Commissioner's judgment was technically wrong and in the ordinary course of things, as the Native Commissioner found that the respondent had failed to prove payment of the balance of £48. It clearly had no effect on the marital relations of the plaintiff and his wife and that in itself must be against any claim for substantial damages. Let us not forget the fact that the parties are natives who, though they claim to follow our civilized marriage customs, actually adhere to their tribal customs, e.g.
Lusiza Busakwe (1944 N.A.C.T. & N. lb) it was held that it is the duty of the Court and not that of the interested parties to assess any damage suffered. The claimant has not proven that there are circumstances in this case that entitle him to compensation above the usual level and based on the ruling in the case of Vivicrs v. The claimant is described as a farmer from the Vryburg district and does not appear to be one . stay in an indigenous reserve.
Although the Home Commissioner's ruling is technically wrong, it actually manages to provide both sides with considerable fairness on the merits of the case.
ACQUISITION OF STOCK
Moreover, he did not seek by way of cross-appeal to correct the sentence according to the issues implicit in the proceedings. In the exercise of our powers as an appellate court we have seen fit to correct the matter.
PURCHASE, BARTER OR OTI-IER\VISE
It states that the court is obliged to refuse to enforce a contract that is illegal, even if the parties do not object to the legality of the contract. In the case of many other authorities, which we dealt with on the basis of the consequences of the same decree, the matter was dealt with in the appeal phase and was decided by the Court of Appeal. The use of the word "kwitansie" may be the local equivalent in the relevant area of the prescribed certificate.
The Native Commissioner appears to regard the 'receipt' as documentary evidence confirming the party's ownership rights. Nor can we find any reference in the file to the effect that the implications of Article 29 of the Regulation have been taken into account in this case. In order to enable the parties and the Native Commissioner to give further consideration and consideration to the matter now before us, we are of the opinion that the judgment of the Native Commissioner should be set aside and the matter sent back for further treatment.
Then the parties may again apply to the Court with reference to the provisions of the Regulation and their bearing on • the issues between the parties and the Native Commissioner should give a fresh judgment.
CIVIL MARRIAGE - SETTING ASIDE ABSENCE PARENTAL CONSENT
3 of 1897 of Transvaal, and that a certificate of authorization issued by the Marriage Officer for Colored Persons was entirely invalid. To that extent, the plaintiff's consent was not required, nor could its absence affect the validity of the marriage. For example, persons of color coming from outside the borders of Transvaal must demonstrate by a certificate or other sufficient evidence that there is no obstacle to marriage.
During the trial reference was made to a p_llmphlet issued by the Union Home Office entitled "Coloured Marriages. Although dowry is important in the native concept of marriage, dowry was never considered in the common law of the Transvaal. 3 of "1897) required , that a certificate must be issued that there are no obstacles to the proposed marriage in accordance with the law and that there was no issue of dowry payment.
3 of 1897 in Transvaal did not confer plaintiff. the right to refuse consent to the marriage.
OF THE
NATIVE APPEAL COURT
CENTRAL DIVISION 1950
VOLUME I
