It was only natural that the Isangoma judgment should be conveyed to the head of the family. If, therefore, the appeal was against the refusal of the Chief to set aside the default judgment, there was no need for the Additional Native Commissioner to have gone into the evidence in the main case.
NORTH-EASTERN NATIVE APPEAL COURT
It is accordingly ordered and as the circumstances are such that there is no question of costs, the Native Com- is taken into account in this case.
PRACTICE AND PROCEDURE
The Native Commissioner held “that the judgment recorded, especially after the lapse of so considerable a period, must be regarded as the judgment of the Court, and that the only way in which it could be varied was by the Native Commission. sion's Court would be the avenue of appeal." It is therefore ordered that the appeal be dismissed, and it is hereby dismissed with costs, but the judgment of the Native Commissioner.
RULES OF COURT
But this Court cannot accept this contention unless it is qualified by a condition that all the interested parties be cited in the application made to the Court; we do not hold it on the basis of the analogy pointed out by the appellants' counsel, but rather on the powers conferred on Native Commissioners Courts by section ten, sub-sections (1) and (2) of the Native Administration Act No. 38 of 1927. In the circumstances the appeal must be dismissed with costs because the Native Commissioner's judgment was correct in so far as he dismissed the application although the dismissal was not correctly founded and his directive observations were not correct not.
CONDONATION OF LATE NOTING OF APPEAL
This is a request for condonation of the late filing of the appeal against the decision of the Local Commissioner's Court. The reasons for the late filing of the complaint are such that this Court is not prepared to entertain the request on their own.
APPEAL FROM CHIEFS COURT
This court has made numerous decisions regarding the need to comply with the requirements that the Chief's reasons must be given in terms of rule 7 of the old rules and held that they form part of that record. Those decisions were based on the old rules, but they apply to the current rules, except that under the latter, the home commissioner's court may, in its discretion, proceed with the hearing without the chief's reasons for judgment. The absence of the boss's reasons for the judgment was initially commented on by the appellant's lawyer, who informed the court that although it was an irregularity, he did not want to use it on behalf of his client.
Facts proven" in the explanation of the judgment on page 9 of the typed minutes and also in paragraphs 1 and 2 under the heading "C.
STATUTORY LAW
The reasons why the Chief made his decision, especially since the 1891 and 1932 Codes did not apply to Zululand at the time the events took place. The Home Commissioner will then, if reasons are given, take those reasons into account and if no reasons are given, he will exercise his judicial discretion in accordance with the rules to set them aside and then issue a new judgment. If this judgment is still adverse to the respondent, the Home Commissioner forwards the record to this court for consideration of the appeal on the merits at the next hearing at Eshowe Court on October 25.
As mentioned, the correct decision in this case depends on the original law in force in Zululand at the time of the events.
STARE DECISIS RULE
On the day of the hearing of the case, there was no evidence, but the following admissions were recorded by the legal representatives of the parties:-. C” the defendant's attorneys wrote to the plaintiff's attorneys requesting the transfer of the property and a bond in terms of section seventy-two of law no. 72 of Act No.
It also appears to be an instance in which we have to invoke the wide powers conferred on this Court by section fifteen of the Local Government Act.
CUSTODY OF CHILDREN ON DIVORCE
PARTNERSHIP
One of the grounds of appeal is that the partnership agreement was not stamped under the Stamp Duty and Fees Act, 1911, making the agreement null and void. A translation of the partnership agreement drawn up in the Zulu language and consisting of Annexure "E" to the record should be detailed here:—. Here he wants to return to not stamping the social contract.
In view of the foregoing, the partnership agreement was rightly filed with the court and its contents can rightly be taken into account.
DEFAMATION : PRACTICE
AND PROCEDURE
The appeal is ordered to be allowed and it is hereby allowed with costs, and the judgment of the Native Commissioner is modified into a judgment of absolution of the case with costs. The Chief found that the statement was made maliciously in public and that it was defamatory and accordingly awarded the plaintiff damages and costs of £5. Having concluded that the defendant's defenses failed, the Native Commissioner entered judgment for the plaintiff in the sum of £5 plus costs.
The appeal to this court accordingly fails and the appeal is ordered and it is hereby dismissed with costs; However, the judgment of the Native Commissioner is hereby modified to read as follows:
CENTRAL NATIVE APPEAL COURT
He should deliver judgment in these words: "The appeal is dismissed with costs and the judgment of the Chief is affirmed." The plaintiff produced no evidence of claim, but stated in her answer to the Native-Commissioner that she had been married by Native custom. No decision was made on the defendant's request, as the court rejected the summons at the rehearing on June 6, 1955 on the grounds that the plaintiff did not have legal standing.
Now the plaintiff appeals on the grounds, first, that this objection should not have been upheld, i.e.
SOUTHERN NATIVE APPEAL COURT
LAW OF PROCEDURE
In the specific case, the claim, as stated in the chief's written record, reads: "The plaintiff demanded 3 head of cattle from the defendant. It is understood that the registrar requested the manager to submit a written record of the proceedings in this case in his court. Held: (1) That the criterion in relation to pleadings and judgment in the chief's court is the written record of the chief and where is the correctness of that record. he did not challenge the defendant's admission in the main court.
It should be added that during cross-examination at the Native Commissioner's Court, the accused admitted that the complainant's wife was never near him during mjadu dancing.
NATIVE LAW OF SUCCESSION
As to the marks on the accused's body, the evidence of his own witness, Lindaswe, shows that they are very faint and only noticeable at very close range. Dressed, these factors serve to corroborate the testimony of the plaintiff's wife in the Native Commissioner's Court. The failure to mention these features by the plaintiff's wife at the initial examination of Lindaswe's kraal does not appear to have been put to her in cross-examination at the Native Commissioner's Court, so that this factor can hardly be said to weaken her. proof if she can. As regards the second ground of appeal, apart from the fact that the details of the acts of adultery given by the plaintiff's wife at the time of her recall by the Court do not, in my opinion, advance the plaintiff's case, the Court was open to recall provisions of the rule. 53 (12) of the Rules for Native Commissioners' Courts, published under Government Notice No.
If so, and since there is nothing to indicate that the defendant's attorney was not permitted to cross-examine this witness upon her recall or to adduce any evidence in rebuttal to the testimony then given by her, there may be there is no evidence of any prejudice against the suspect. so that this ground of appeal also fails and the appeal to the Court of Appeal must be dismissed with costs.
PONDO CUSTOM)
In a case which is the subject of this appeal, the plaintiff applied for an order in the NativeCommissioner's Court declaring him to be the heir of the deceased. Therefore, the defendant requests that the plaintiff's claims. may be dismissed with costs and that the defendant Mbuyelwa may be declared the rightful heir of the late Mgimhibi and that the defendant Mamelana may be declared entitled to the custody of the estate of Mgimhibi so long as she remains at the said Mgimhibi's kraal." The plaintiff objected and answered the pleas as follows:—.Plaintiff objects to the plea being entered and allowed by the second defendant and states that the second defendant sued him.plaintiff) in the Chief's Court, Qaukeni, who sought to be declared heir of the late Mghimbi, and the plaintiff's claim was dismissed on 12 August.
The deceased called a meeting of the relatives to make it known that the plaintiff and Velelekaya were adulterous children whom he had left in the kraal of the first defendant's people when he struck him.
CENTR \L NATIVE DIVORCE COURT
Moreover, his only witness, a neighbor, admitted that he was often absent from work and his evidence does not help the plaintiff. It is true that it is unusual for natives not to claim compensation for adultery even when they have been away from home for a long time, but the explanation here given does not seem unreasonable under all the circumstances. In the circumstances, it does not seem to be possible to say that the Assistant Native Commissioner erred in finding that the presumption of legitimacy was rebutted by the evidence for the respondents; and as the plaintiff is an adulterous child,.
As to the main ground of appeal, it appears from the record of the previous proceedings relied on by the plaintiff to justify a defense of res judicata that the judgment therein was the dismissal of the claim of the then plaintiff (current second defendant) and that such a sentence amounts to one of absolution from the case, see Beckerv.Wertheim, Becker and Leveson, 41 P.H., F.
There is no reported decision on the question of whether the Native Divorce Courts have jurisdiction to entertain such claims against co-respondents, but I have had occasion to peruse a copy of a recent judgment of the Southern Native Divorce Court which dealt with the point and in which the court found. that it had no jurisdiction to deal with such a claim. As the legislature did not specifically confer jurisdiction over such an accessory claim, the native divorce courts cannot entertain it. The jurisdiction which section ten (1) of the Act confers on the Native Divorce Courts is.
If this is the law applied in the Supreme Court, the same law must apply in the native divorce courts. For if the Legislature had intended that the Native Divorce Courts should have a Divorce Jurisdiction distinct from the Supreme Court. Manners has pointed out that there is nothing in Wyk's case to suggest that the Native Divorce Court would not have jurisdiction if the co-respondent is a Native and the cause of action arises within its jurisdiction.
REPORTS
OF THE
NATIVE APPEAL COURTS
VERSLAE
VAN DIE
NATURELLE-
APPELHOWE
DIE STAATSDRUKKER, PRETORIA
