Nor could he derive jurisdiction from clause (h) of this section as the cause of action viz. the seizure in execution of the cattle, took place in the district of Mahlabatini and not Vryheid. The appeal is accordingly allowed, and the judgment of the Native Commissioner is altered to one of "Petitions dismissed."
CENTRAL NATIVE APPEAL COURT
NATIVE LAW AND CUSTOM
Die verweerder het 'n appèl teen hierdie uitspraak aangeteken op die volgende gronde: a) Die Naturellekommissaris het verkeerdelik bevind dat die verweerder die vader van die kind was. h). Die Naturellekommissaris het fouteer deur te bevind dat die eiser kon dagvaar.''.
PRACTICE-PROCEDURE
The application for condonation of the late registration of the appeal is accordingly refused with costs. It is also not clear to this Court how, in light of the Plaintiff's evidence, the attorney for the Plaintiff could persist in his demand for a default judgment.
SOUTHERN NATIVE APPEAL COURT
Helman, who represented the plaintiff, submitted that the second defendant was only concerned with the issue of custody and that she had not suffered any prejudice because she could request a modification of the custody order at any time. His handling of the case under these circumstances deprived the second defendant of an opportunity to present her case to the court, and constituted a very grave irregularity (LJeckernumn v. Feinstein, 1903, T.S. 913).
EVIDENCE
The chief who presided over the trial of the case in the Court of First Instance gave evidence for the plaintiff in the Local Commissioner's Court at the hearing of the appeal from his decision of the admissions made by the defendant in the trial before him. Held: That the evidence of the Chief who presided over the trial of the case in the Court of First Instance, as to the admissions made by the defendant at such trial, was admissible in the Local Commissioner's Court when the case came on appeal.
MAINTENANCE
As the local Commissioner pointed out in those reasons, the defendant's salary is in itself showing either R32.00 or R42.00 per month and in addition he has the assets mentioned above. As also pointed out by the local Commissioner, the defendant did not disclose the extent to which he contributed to the support of his mother, three unmarried sisters and the youngest brother, i.e., the monthly cost of such support; nor is there any indication that they were unable to work and support themselves.
NATIVE CUSTOM
The plaintiff is the elder brother of the defendant and has paid thirteen head of cattle and ten sheep as dowry for the defendant's wife. According to custom, the said dowry became repayable from the dowry of the eldest daughter of the defendant on her marriage.
PRACTICE AND PROCEDURE
In the course of their evidence for the Defendant, Yilata and her "usury-eater" stated that the Plaintiff had accepted two keta cattle to dissolve his customary relationship with her. Further found: That the criterion in respect of the guardianship of the three children was whether there was a dissolution of the Plaintiff's customary relationship with Yilata at the time stated by the Defendant.
DELICT
Defendant alleges that the presence of said George at said ceremonies was the result of plaintiff's negligence. 3. That he has delivered to the plaintiff the equivalent of eleven head of cattle, including seven of the eight head of cattle referred to in the plaintiff's statement of claim. 1 hat seven of the eight cattle named in plaintiff's writ are now registered in the.
That he delivered to the Plaintiff the equivalent of eleven head of cattle, including seven of the eight head of cattle listed in the Plaintiff's particulars of claim.
COURT
Since the Plaintiff pointed out in his summons that his daughter was prepared to return to the Plaintiff's son implying an offer by him to return her, there can be no objection to the Plaintiff's claim on account of his daughter's desertion from son of the defendant who had no e putuma, see Dlamini v. Kuhoiii and Ano., 1953, N.A.C. It should be added that the value set by the Plaintiff for the cattle claimed in his summons was not contested by the Defendant in his claim, so the value falls to be accepted. Accordingly, the plaintiff was entitled to a judgment as prayed, with costs, on claim (3) except judgment for the two head of cattle or their value in claim (1) and the order sought in claim (2), with costs, as that the appeal should be allowed, with costs, and the decision of the Local Commissioner's Court amended as follows: -.
In the first place, the Native Commissioner should have noted in his notes of the case the nature of the amendment of clause (8) of the particulars of claim in the writ which the plaintiff's counsel applied for, and the result of that application, the note in brackets on the writ itself as to what the amendment was not sufficient, as it is not part of the case.
COSTS
In the result, the appeal should be allowed, with costs, and the judgment of the Native Commissioner's Court modified to read as follows:—. The action was based on the alleged seduction of the plaintiff's daughter, Siphokazi, by the second defendant, followed by pregnancy. The omission of the nqutu animal from the amended judgment was discovered by the plaintiff's admission in the course of his evidence in the Native Commission-.
It is perhaps just as well to add that in the recovery of the dowry where the recognized deductions equal or exceed the.
APPEALS
MUNICIPAL NATIVE LOCATIONS
As regards the appeal, the judgment of the Assistant Native Commissioner is based on the exercise by the claimant of the option referred to in Article 6 of the written agreement entered into. In case of inability and/or default of the said Skey to pay the said. As a result, the appeal should be dismissed with costs, but the judgment of the Native Commissioner's Court on the claim in the convention should be modified by substituting the words.
The defendant must transfer the said property to the plaintiff and sign all possible documents.
OWNERSHIP AND POSSESSION
Held further: That, as the Plaintiff established the alleged spoliation, the onus of proving the ownership of the cattle rested on the Defendant. In her pleading, the Defendant denied the alleged spoliation and that the Plaintiff was the owner of the stock, stating that it. The action is a justiciatory and not a spoliatory one in that, as an alternative to the return of the cattle, the Plaintiff claimed their value, see Balooi versus Balooi, 1952, N.A.C.
303, at page 306; and the fact that the plaintiff, on the evidence, does not appear to be the owner of the cattle either, as it is the proceeds of a cow paid to him as a dowry for the defendant when he negotiated for her client.
JURISDICTION
2. That the local Assistant Commissioner was wrong in preferring the defendant's evidence to that of the plaintiff." Summary: The Respondent filed an objection, pursuant to Rule 14 of the Rules for Domestic Appellate Courts, to the panel. Thereafter, the respondent filed an objection in terms of Rule 14 of the Local Court of Appeal Rules contained in Government Notification No.
As a further consequence, there was no delivery (as defined) of the Notice of Appeal in terms of Rule 9.
SOUTHERN NATIVE DIVORCE COURT
There is no indication whatsoever that the Notice of Appeal was served either personally or by the messenger of the Court on the Respondent nor was the Clerk of the Court notified of any such service as required by sub-rule 6 (3) . The case was therefore not properly before the Court and the case is struck off the roll, with costs.
HUSBAND AND WIFE
At the resumed hearing on the latter date, counsel tendered an affidavit from the defendant, containing a bare admission by her of the alleged treason at the same time, showing that she refused to appear in Court, and then closed the plaintiff's case. The court in an uncontested divorce action based on adultery must be satisfied that the plaintiff's testimony of the alleged adultery and/or the defendant's confession thereof. Defendant's bald confession of adultery did not advance Plaintiff's case as it did not show that Plaintiffs' version was true, nor did it serve to dispel the implied collusion from impossibility.
It follows that the Court was not convinced that the plaintiff's evidence was true or that the defendant's confession was true and that there was no collusion between the parties.
SOUTHERN BANTU APPEAL COURT
The appeal is filed by the petitioner for the following reasons:—. That the verdict is against the weight of the evidence and the probability of the case. a) The court recognized the applicant's right to. to file a request for annulment of the judgment. in a case in which the said petitioner was not a party, he could not claim that it was a willful default, nor did he attempt to prove it; The respondent in his counter affidavit denied that the appellant was the sheiran of the deceased and evidence was adduced to settle this dispute at the instance of the Assistant Commissioner for Bantu Affairs. Moreover, the evidence of the respondent that the appellant admitted that he (the respondent) was the heir of the deceased was not challenged.
But the question whether such possession shows that the applicant was affected by the default judgment does not need to be examined as it is clear from the applicant's statement that he did not rely on it.
LAW OF DELICT
The appeal must therefore be allowed with costs and the judgment of the Bantu Court reversed to one for the plaintiff for R50 and costs. It follows that the judgment of the High Court in relation to the appeal to the Bantu Court should be converted into a judgment of dismissal with costs. In the result, the appeal to this Court should be allowed with costs, and the judgment of the Court of Commissioner for Bantu Affairs should be amended to read:—.
The appeal is dismissed with costs, but the judgment of the main court is changed to a judgment of release from the instance with costs."
CONFLICT OF LAWS
It is true, as Mr. Airey that the second defendant admitted that the first defendant did not have a kraal of his own at the time of the seduction, that the first defendant was the kraalhead and that he was in control of it at the time of the seduction. In the result, the appeal must be allowed with costs and the judgment of the Bantu Court amended to read:—. Consequently, the appeal should be allowed with costs and the judgment of the Bantu Court amended to read.
The appeal should accordingly be allowed, with costs, and the judgment of the Bantu Affairs Commissioner's Court should be varied into a judgment for the plaintiff, as prayed for, with costs.
NORTH-EASTERN NATIVE APPEAL COURT
38 of 1927 provided for an appeal by a person convicted by a chief to the "court of the native commissioner". 13 of 1955 to make the appeal no longer to the "court of the native commissioner", but to the "native commissioner". The chief gave judgment for the plaintiff for the twelve cattle with costs and furnished a written record of the case to the clerk of the court pursuant to rule six of the regulations for Chief's and Headman's civil courts contained in .
In short, the plaintiff's evidence was that the defendant in the main court had acknowledged his claim and had not given evidence because he conceded the claim.
REPORTS
OF THE
BANTU APPEAL
COUR'I’S
VERSLAE
VAN DIE
BANTOE-APPELHOWE
THE GOVERNMENT PRINTER. PRETORIA DIE STAATSDRUKKER, PRETORIA
