Appeal - From Chief's Court - Counterclaim for recovery of attached stock - Nocause of action 14 Appeal - FromChief's Court - Casetobered by Native. Appeal - From the Chief's Court - Summons of the chief as a witness in the appeal from the decision - Consideration 67 Appeal - From the Chief's Court - Local Commissioner.
NORTH-EASTERN NATIVE APPEAL COURT
PRACTICE AND PROCEDURE
The only issue: is whether or not the defendant is the father of the child. It is therefore clear that the defendant has not established on the basis of the evidence that he is the father of the child.
NATIVE CUSTOM
The plaintiff appealed against the chief's ruling to the native commissioner, and there the applications were reconsidered. It was held that there being no evidence that the bull had evil tendencies, the verdict of the Native Commissioner of dismissal could not be overturned.
NATIVE LAW
The appeal is upheld with costs and the judgment of the Native Commissioner in relation to defendant no. 1 is changed to one of absolution of the institution with costs. 2. The appeal as far as it relates to the seizure of the cattle is upheld and the words "and it is ordered that the 20 head of cattle and 12 goats attached be returned to the defendant" appearing in the Native Commissioner's judgment, is deleted.
MAITENANCE
The order of the Native Commissioner is set aside and replaced by the following: 'The matter is struck from the roll. A daughter of the house created by the resulting marriage was designated as the source of loan repayment.
CONFLICT OF LAWS
It is clear from the alternative pleadings that the Minister of Native Affairs — at least in the opinion of the plaintiff — has the right to prevent the transfer of a defined share. With regret then I agree with the judgment of the learned President and Member that the appeal be dismissed with costs. However, on the 11th the parties appeared according to the record and the case was adjourned by the Registrar of the Court in the absence of the Native Commissioner until the 22nd January 1958.
On 29 May the Registrar of the Court heard the case under the provisions of Rule 41(1) of the Native Commissioners. Defendant's affidavit also does not contain any basis on which Defendant claims to have prospects of success in a lawsuit.
EVIDENCE
This Court further orders that the appellant shall prosecute the complaint within three months from the date of this order. In the title of the petition and in the accompanying affidavit, it is stated that the petitioner is assisted by her father, but no claim to this effect appears in the body of the affidavit. It was contended on behalf of the petitioner in the Local Commissioner's Court in respect of the first point, that there was no need to make such a plea, more so as the petitioner's position had not been contradicted in the respondent's reply.
However, as the Permanent Member points out in his judgment, the applicant's rights in this case are probably independent of domestic law. The rule is not confirmed with costs, provided the petitioner proves by affidavit that the parties are natives.
NORTH-EASTERN NATIVE APPEAL COURT,
His case according to his statement is this: He is "the President of the Ethiopian Church in South Africa". In it they do not deny the claims of the plaintiff, except that they deny that he is the president of the church. The plaintiff now appeals on the grounds briefly stated that he actually had rights over and above the interests he has as a priest or servant of the church.
The finding of the local Commissioner that "under the constitution of the Ethiopian Church of South Africa, the church buildings at Leslie are controlled by a church council". The petitioner merely described himself, quite unnecessarily, as a minister of the church, but he did not state or say that he was suing in a representative capacity; and the defendants categorically deny that he represents the church.
SOUTHERN NATIVE DIVORCE COURT
That this is so is evident from the procedure which is admissible under Rule 21 (7) (ii), viz. a defendant may be allowed to enter a plea for the first time at the hearing of the action on the terms of adjournment and costs as it may. At the hearing of the application, the applicant asked for leave to give viva voce evidence. I was of the view that such leave should be granted to him because the issues involved were in dispute and could not otherwise be properly determined.
Accordingly, I allowed the viva voce evidence to be adduced and dismissed the application to strike out paragraph 11. Counsel for the defendant could have applied for an adjournment and costs at this stage but did not do so.
SOUTHERN NATIVE APPEAL COURT
This is an appeal from the judgment of a Native Commissioner's Court for the plaintiff (now the respondent) of £25, with costs, and dismissing the defendant's (the present appellant's) counterclaim, with costs, in an action in which the plaintiff sued the defendant for £48 as damages for the wrongful banishment and slaughter of a certain bull owned by him (plaintiff) and i.
PARTICULARS OF PLAINTIFF’S CLAIM
DEFENDANT’S PLEA
DEFENDANT’S COUNTERCLAIM
The plaintiff is the guardian according to local custom of a Zipete Duma and at all material times has been the head of said Zipete and responsible according to local custom for the torts of said Zipete. In or about June, 1956, the said Zipete unlawfully and unlawfully seduced the said Beilina and impregnated her, as a result of which the said Beilina gave birth to a male child on March 15, 1957, the father of whose is Zipete. Due to the aforesaid seduction and pregnancy, the plaintiff is bound to pay Minah Mngcangceni, the mother of the said Beilina a maqoba (sic) beast and owes the defendant 5 head of cattle as damages for the seduction.
PLEA TO COUNTERCLAIM
The Native Commissioner accordingly found that Zipete could not be considered an inmate of the plaintiff's kraal. The plaintiff's evidence was not contradicted by that of the defendant's only witness, July Madubedube. That the verdict is against the weight of the evidence and the probabilities of the case and is not supported by it.
There are also several differences between the testimony of the plaintiff's wife and the content of the letters (exhibits "B" and "C"). The false denial is therefore consistent with the testimony of the plaintiff's wife and inconsistent with the defendant's innocence, as pointed out by the Native Commissioner in his reasons for judgment, and therefore provides corroboration, see Wichman v.
NATIVE LAW AND CUSTOM
The plaintiff came into possession of the cattle bona fide and without notice of any previous claim, and they remained in his possession for three months before they were seized. This practice of the promised payment of a debt from the dowry of a daughter is not unknown among natives, as pointed out by Seymour on page 95 of his book "Native Law in South Africa", but as the father the custody of the girl is retained, the dowry is paid. for her clothe him, and he must pay the debt. The position here is that he failed to do so, and the Native Commissioner, not being sure of the position, applied the Common Law and, in accordance with these principles, concluded that the essential terms constituting a mortgage has been fulfilled in that the pledged goods have not been delivered to the pledgee and third parties cannot therefore be bound.
In the case where a man owes money and promises to pay the debt from his daughter's dowry when she marries, but then, when the dowry is paid, he passes it on to a third party for payment of the dowry of his own son, Does the original creditor have any claim on the cattle?”. However, once the livestock has left the debtor's possession without prior notice, the creditor is no longer entitled to claim the third party's livestock.
CENTRAL NATIVE APPEAL COURT
The plaintiff can only succeed by conclusively proving that he is not the father." In this case, we are faced with the point of view that the defendant admitted cohabitation on 26/10/1957 and must therefore prove that he is not the father of the child. Knopf admitted that the defendant, although it was unlikely, could not prove that it was impossible for him to be the father, and that he could not say that the decision was in Manakazav.
Held: That the defendant's failure to dispute the amount of damages in his piea must be accepted as an admission by him of the amount claimed. The defendant appealed on the grounds that, first, the verdict is against the weight of the evidence and the circumstances of the case, and second, that the damages are excessive.
ACOMODATUM
However, the defendant's lawyer chose to proceed with the case in his client's absence, and judgment was subsequently given in favor of the plaintiff. Traub conceded that the plaintiff was not in default in the technical sense of the word. This presentation of these versions of the claim in the Chief's and Native Commissioner's Courts has certainly not caused any prejudice.
I agree with the judgment of the learned President but with regard to the views expressed in ground 2 of the appeal. The notice of appeal was also headed “In the Court of the Bantu Affairs Commissioner..” and the appeal was filed against the judgment of the “Bantu Affairs Commissioner.
NATAL CODE OF NATIVE LAW
The appeal is allowed with costs and paragraph (3) of the judgment of the Native Commissioner in relation to a refund of 11 head of cattle is struck out. A reminder was sent to the Clerk of the Court on March 5th and this official responded on March 6th. That the respondent failed to show that the appellants took notice, or knew, of the Court's order (i.e. the interdict).
The appeal is allowed with costs and the proceedings in the Local Commissioner's Court are quashed after confirmation of the ban. The appeal is allowed and the decision of the Local Commissioner is changed to read "Called dismissed.
