In the County Commissioner's Court, Bulwer, the plaintiff claimed from the defendant fourteen head of cattle. That the learned Native Commissioner erred in finding that there was no evidence of the true value of the property at the time and place of sale.
NORTH-EASTERN NATIVE APPEAL COURT
We are of the opinion that the deed of sale dated 17 November 1950 was merely a repetition of the previous agreement, especially as there is evidence that it was done on legal advice. We can well understand that the lawyer giving the legal advice may have had doubts about the legality of the previous agreement, but it does not follow that this Court had to subscribe because he had doubts. We cannot find anything wrong with the 1947 agreement and hold that there was a valid sale agreement in existence on that date and therefore the plea of limitation was well accepted as decided by the Native Com-.
MDHLULI
ESTATES
There is no indication that any other person or candidate for heirship was present, but the presiding officer states in his reasons for ruling that he decided that the most practical procedure would be to interview each witness in turn and provide affidavits. to be taken as his/her identity became known. during the course of the investigation and when their presence could be assured. I have therefore made every effort to secure the presence of persons known and believed to be able to assist in arriving at a correct decision in the case, as quickly as possible and without the knowledge of any of the parties to the dispute, where necessary, to ensure, as far as possible, that neither party can interfere with the witness. That judgment and the ruling of Nicholson (M.) provide a clear indication of how this type of research should be conducted. C.O.), 109, it was definitively established that an investigation in the absence of the parties involved is irregular.
There was late notice of the appeal and before the application for condonation of the late note was argued, both counsel agreed to the condonation and although any consent on the part of the Respondent does not bind this Court to grant condonation. not, we believe that in the circumstances as disclosed above condonation should be granted.
SOUTHERN NATIVE APPEAL COURT
Both counsel further agreed that the appeal should be allowed and that each party by consent should pay their own costs and the proceedings be remanded for retrial. It is ordered that the proceedings before the Assistant Native Commissioner Mapumulo be set aside. At the request of the two advisers, it is proposed that the investigation be carried out as soon as possible, as the parties very much want to achieve finality, and that in the new investigation they be given the opportunity to cross-examine the witnesses in person or through a legal representative.
MJIKULU AND AND
DEFAMATION
The bailiff correctly found that the words complained of were 'liar' and 'troublemaker on the spot', but erred in law in finding that such words were not in themselves defamatory in the context in which they were allegedly used. . However, in her evidence she said they used the words 'You are a troublemaker at the venue'. Her witness, Edgar Mjaba, did not mention these words in his statement in chief or during his cross-examination, but in response to the Court he stated that he had heard defendants say that she was a troublemaker at the location. In the instant case, there is no evidence to show that defendants intended to convey that plaintiff's general character was that of a liar.
It is not possible that you cannot have twelve cents" means no more than "You are not telling the truth because you are saying something that is impossible." In other words, the circumstances show that the words were used for the purpose of enforcing an argument and not for the purpose of defaming the plaintiff's character.
MGIJIMI AND AND
In Nathan's Law of Defamation in South Africa, the learned author states on page 65 that the general trend of opinion. Smith, 1943, C.P.D., 321, Sutton, J., states (at page 324) that the words "You are a liar," or similar words, have on a number of occasions been considered by the courts as defamatory or not . ThelearnedJudge reviewed the authorities and concluded that they show that one must consider all the circumstances of (he case, and when one has done so, one can conclude that the word.
I therefore conclude that the plaintiff has not made out a case for the defendants to meet and the appeal must be dismissed with costs.
PRACTICE AND PROCEDURE
In their plea, the defendants denied that the plaintiff was the heir to the estate of the late Mgijimi Ndzipo. It was admitted that the plaintiff was born of Mgijimi's wife during the continuation of a customary union between her and Mgijimi, but it was alleged that Mgijimi was absent from home for a long period and that his wife had committed adultery during his absence , which caused the plaintiff to be born in such a way that Since the plaintiff is an adulterous child, he cannot claim the state of Mgijimi. After hearing this evidence, the Assistant Native Commissioner ruled that the second defendant was an heir to the estate.
The case was then adjourned subject to the hearing of evidence as to the stock claimed by the plaintiff as his personal property.
MVAKWENDLU
Summary: Judgment The creditor appealed against the judgment in this interlocutory action on the ground that the plaintiff did not have locus standi in the judicioto action since the claimed property was attached by the bailiff in the judicial process, and the latter was the proper person to sue . from the summons of the intervenor in terms of section 70 (2) of the Local Commissioners Court Rules published under Government Notification No. Held: That as no evidence was adduced to show that the summons was not prepared by the Messenger of the Court and as the summons was substantially in the form prescribed by the Rules,. To the entire judgment of the plaintiff's suit, the creditor excepts that the summons discloses no cause of action in that the plaintiff has no locus standi to sue as the property claimed was attached by the bailiff according to the process of the Court, and the person of appropriate to sue the party in question is the herald of the judge of sub-rule (2) of rule 70 of the Regulation for Local Commissioners' Courts published in Government Notice No.
In this case, no evidence was adduced to show that the summons was not prepared by the court's messenger and that the summons was substantially in the form prescribed by the rules.
NOORD-OOSTELIKE NATURELLE-APPELHOF
Form No. 39 of the Second Schedule to the Rules and section 70<5) (h) of the Rules provide for the Clerk of Court to sign and issue the intervenor's summons. In any case, even if there was an irregularity, this Court would not be entitled to set aside the trial on that ground, unless there was substantial prejudice, in view of the provisions of section fifteen of Act No. The parties appeared before the court and gave evidence as to whether the attached cattle were enforceable or not, after which the Com-.
Court and the first ground failing, the appeal must be dismissed with costs.
NATURELLEREG EN -GEWOONTE
Nou het die verweerder na die Hof geappelleer en sy redes vir appèl is soos volg:-. Die hof se beslissing is teen die gewig van die getuienis en die waarskynlikhede van die saak. Dit is nodig om na die volgende gevalle te verwys om aan te toon dat so 'n ooreenkoms nietig, onregverdig of teen gebruik is. Ciliza, 1, N.A.C., 391 (N.E.), is die leerstuk in pari delicto toegepas en daar is bevind dat indien 'n Nature!, reeds getroud kragtens die siviele reg, onderhandel vir 'n gebruiklike verbintenis met 'n vrou anders as sy gade, kan hy nie eis terugbetaling van lobolo.
In hierdie omstandighede word die appèl toegelaat en word die besluit van die Natuurkommissaris tersyde gestel.
ZULU
Daar is dus geen twyfel dat die eiser ten volle bewus was daarvan dat hy beeste na 'n ander man se vrou en dies meer oorgedra het nie. Alhoewel die man in daardie saak reeds sivielregtelik getroud was, bly die beginsel dieselfde en geld dit in die onderhawige appèl. Die pleidooi van contra bone mores of in pari delicto is nie deur die laer hof aanvaar of as 'n grond van appèl ingesluit nie, maar die Hof het die reg mero motii om enige saak aan te hoor wat nie met sulke beginsels en argumente strook nie.
Die bevel van die hof is: Die appèl word toegelaat en die uitspraak van die Naturellekommissaris word gewysig om te lees:—.
PROCEDURE; RULES OF CHIEFS’ COURTS
This Court has made many rulings on the need for compliance with the requirements for giving the Chief's reasons under Rule 7 of the old Rules, and held that they formed part of the record. These decisions were based on the old rules, but they apply to the present rules, except that under the latter the Court of the Native Commissioner may, in its discretion, continue the hearing without stating the Chief's reasons for the judgment. 1953, 191 (N.E.) it was emphasized that the reasons of a Chief are a sine qua non in all appeals against Chiefs'Courts and that when the Native Commissioner exercises his discretion - which is judicial and not arbitrary - in the omission leave it, he must make a decision and make a note on the file of the circumstances and his reasons for such an exemption.
In the case now before this court, the Home Commissioner apparently did not know or ignored the fact that the Chief's reasons were not recorded and the matter was consequently not dealt with properly.
NYEMBEZI AND AND
The Home Commissioner then, if reasons are given, takes those reasons into account and if no reasons are given, he uses his judicial discretion in accordance with the rules to set them aside and then issues a new judgment. If this judgment is still adverse to the plaintiff, the Home Commissioner will forward the record to this Court for consideration of the appeal on the merits at the next hearing of the Courtat Vryheidon on the 4th October, 1955. In this case the plaintiff sued his wife, the first defendant, for divorce on the grounds of adultery, which she allegedly committed with the second defendant, the custody of the minor children of the marriage and the deprivation of the benefits arising from the marriage.
The fact that, when divorced, he can claim additional damages based on the loss of his wife's comforts, society and services, does not, in my view, make the divorce questionable.
ADULTERY
APPEALS: FROM NATIVE CHIEFS’ COURTS
CONTRA BONES MORES
DAMAGES
DISPOSITION BY KRAALHEAD
ESTATES: DECEASED NATIVES
EVIDENCE
IMMORAL AGREEMENT;
JURISDICTION: NATIVE DIVORCE COURTS
KRAALHEAD
LAESIO ENORMIS
LOBOLO
NATIVE CUSTOM: NATURELLEGEWOONTE
NATIVE DIVORCE COURTS
OMNIA PRAESUMUNTUR RITA ESSE ACTA
SUCCESSION;
CORRIGENDUM
VERSLAE
VAN DIE
NATURELLE-
APPELHOWE
REPORTS
OF THE
NATIVE APPEAL
COURTS
DIE STAATSDRUKKER PRETORIA THE GOVERNMENT PRINTER
