Chief Courts—Recognition of liability reflected on Chief's written record on appeal denied—Procedure to correct. Court—Consequence of—Application for revocation of such judgment—Non-compliance with requirements 60 Evidence—Court cannot take cognizance of evidence in.
NORTH-EASTERN NATIVE APPEAL COURT
NATIVE LAW
In this case isondhlo was demanded in respect of the children, but the record is silent as to whether the defendant was asked to take them or not. To the plaintiff for one beast of isondhlo or its value £15 with costs relating to the claim as to the woman.
PRACTICE AND PROCEDURE
Can a maintenance recipient claim isondhlo while he is still supporting a child, or must he wait until he has finished supporting the child? Answer: Normally the claim is not made while the child is still with the maintainer, but a maintainer can make an appeal.
4 Cases referred to
The Chief's written record must be presumed to reflect the true elements of the trial before him. Kuse 1957 N.A.C., 92, where the question of the correctness of the chief's record was precluded on appeal.
NORTH-EASTERN NATIVE DIVORCE COURT
The appeal is allowed and, as the evidence shows that the wrong party sued in the Chief's Court, the decision of the Chief is quashed and the suit before him dismissed. As the Chief and the parties before him were in error, there will be no order for costs in the Chief and Local Commissioner's Court.
DIVORCE ACTION: AGREEMENT NOT TO DEFEND
It is worrisome to find that a NativeCommissioner, a Solicitor and a Solicitor could think that it was right and to put another person in the place of the respondent in an appeal during the hearing of the appeal and after a judgment of a competent court had been ruled. Similarly, costs will not be awarded in this court as the point on which this decision was made was not raised on appeal.
DIVORCE ACTION: RESTITUTION
DIVORCE PRACTICE AND PROCEDURE
In the interim, the plaintiff requested a contribution to cover the costs of the case and for alimony pendente lite. He has not established that the second child is not his and admits that the passage of time is insufficient to prove that he is not the father of the child.
SOUTHERN NATIVE APPEAL COURT
NATIVE CUSTOM
Sub-Chief Mbovane's evidence for the plaintiff confirms that the defendant made the admissions testified to by Monqezi and Kolben and that the £10 was paid because of the. It follows that the plaintiff's version alleges that the beast was paid for by the second defendant as non-lonely and.
SOUTHERN NATIVE DIVORCE COURT
But that operative part must be regarded as having been rejected in the light of the judgment in Gecelo vs. Summary: Plaintiff, a married woman, sued her husband for dissolution of customary union on the grounds of desertion and for custody of a child. Plaintiff, a married woman, sued her husband for dissolution of customary bond on the grounds of malicious desertion, custody of one child and costs.
The claim in reconvention demanded dissolution of the association, custody of the child and repayment of 11 heads of lobola with costs. On the day of the trial Dinisi Sibiya was absent and at the close of the defendant's case an application was made that Dinisi be considered as cited in his capacity as the plaintiff's guardian and not in his personal capacity. An appeal is noted against that part of the judgment which awards six cattle to the plaintiff and is lodged by the second defendant.
No order will be made as to the costs of this appeal to express the Court's disapproval of the entire manner in which this case has been conducted.
CONFLICT OF LAWS
In the present case, the Native Commissioner himself could only cause the destruction of the plaintiff's hut if it failed to comply with a removal order. He was also deprived of the right to be heard in a criminal prosecution for violation of a provision of Article 21 of the proclamation. With regard to specific damages for loss of property, the plaintiff has failed to prove the damages claimed and the probabilities are on the side of the defendants.
In the absence of cross-examination, the plaintiff's attorney could not have known that the value of the cabin would be questioned. The appeal is allowed with costs and the judgment of the court below is modified in a judgment for the plaintiff for £14. Held: That a guardian was liable for the crimes committed by his ward while living in the same kraal as himself, regardless of the age or marital status of the district.
During the hearing of the appellant, the appellant's counsel relied solely on his contention that accused no.
PONDO CUSTOM
The undisputed facts are that the second defendant is the half brother of the first defendant, the latter's mother having been married by the defendant's father after the death of his first wife who was the mother of the second defendant. They have been residing in separate kraals since before the commission of the offense by the first defendant. The second defendant is the eldest male relative of the first defendant, their father and the second defendant's elder brother are deceased and the latter's sons are minors.
It is not clear from the evidence whether the first defendant was an adult or a minor at common law when he committed the crime. The Native Commissioner based his judgment against the second defendant on his finding that the latter was the kraalhead of the first defendant and in reaching that conclusion he relied on the evidence of the first defendant and his mother for the plaintiff that the second defendant exercised control. on their cattle instead of the first defendant giving his profits to the second defendant. Their evidence shows that the second defendant managed their affairs and was given the income of the first defendant in his capacity as guardian of the first defendant.
It must be mentioned here that the second defendant's denial in his evidence that he was the first defendant's guardian has no weight as the second defendant admitted in his evidence that the first defendant was a minor under local law and he did not countered that he was the first defendant's nearest male relative.
OPINION OF PONDO ASSESSORS
DAMAGES
It is common cause that the defendant injured the plaintiff by striking him on the head with a hunting stick, and it is not disputed that this injury consisted of a depressed fracture of the skull. The version of the defense that the plaintiff hit the defendant in the face with his stick and hit him twice before the latter struck the blow hitting the plaintiff is, as pointed out by Mr. The position is, however, as regards the defendant's claim that the plaintiff had made the offensive reply.
Moreover, the fact that the Plaintiff stated that he threw the document away lends color to Marekeni's testimony that he also wrote the prices paid for the stock on the paper. In light of the Native Commissioner's conclusion that judgment was for the Plaintiff on the eviction claim. Defendant now comes to this Court against that refusal on the ground that the evidence did not support the verdict.
It is therefore very clear that the appeal from the Chief's Court in this case could not legally be heard by the Assistant Native Commissioner.
DAMAGES FOR ASSAULT
The defendant further claimed that the dowry only consisted of seven cattle and one horse, and that two of the cattle were dead. The appeal is filed for the following reasons:—. That the verdict is against the weight of the evidence, the facts proved and the probability of the case. That the verdict is against the weight of the evidence, the proven facts and the probabilities of the case.
It did not appear likely that the claimant would have anything more to propose or adduce further evidence. It is clear from the concluding sentence of the reasoning of the domestic commissioner's judgment that he found in favor of the defendant only because the plaintiff did not prove his case. For these reasons it also appears that the Native Commissioner considered that the defendant had failed to prove his case, stating that there was a possibility that the plaintiff's claim was true.''
The evidence of the plaintiff's wife, Maswelinkomo, that the defendant committed adultery with her and made her pregnant, as alleged in the summons, is sustained by the plaintiff's witness, Madinabantu.
DOWRY CATTLE
But this argument loses sight of the fact that the Clerk of Court is. This position is entrenched by the proviso to section fifteen of the Native Administration Act, 1927. Muggleston rightly did not support the second ground of appeal as there is no substance in that the only reason advanced in respect of the application for adjournment by the defendant's attorney in the Native Commissioner's Courtwas.
In relation to the application by the plaintiff's lawyer to recall his witnesses, this was a matter in the Native Commissioner's discretion in terms of rule 53 (12) of the Rules for Native Commissioner Courts. But in introducing this argument, counsel lost sight of the fact that the defendant was over by native law and custom. He claimed that, in accordance with Item 7 of Table C of the Second Schedule to the Native Commission-.
In hearing the appeal, the Home Commissioner applied the provisions of the Pound Ordinance to the case.
MAINTENANCE
Thirdly, he argued that if the isondhlo was paid by the defendant, he paid it only to Amos, the protector of the mother of the children. As regards claim 5 of the notice of appeal, it is clear from the reasons for judgment that the Native Commissioner applied the common law in awarding the maintenance amount of R156 over theisondhlobeasts. For these reasons the appeal is allowed in part with costs and the judgment of the Native Commissioner is modified to read.
The execution creditor, residing in the district of Vryheid, obtained a judgment in the Court of the Native Commissioner of that district for £210. These thirteen cattle were subsequently reinstated on 22 July 1960 at the Mkonjeni dipping tank by the messenger of the Native Commissioner's Court for the district of Mahlabatini following a new warrant issued by the Clerk of the Native Commissioner's Court, Vryheid. A summons was issued in court before the Native Commissioner at Vryheid, who, after hearing evidence, declared that the cattle could be executed with costs.
1. That the Local Commissioner's judgment is against the evidence and bad in law.
VAN DIE
BANTOE-APPELHOWE
REPORTS
OF THE
BANTU APPEAL COURTS
THE GOVERNMENT PRINTER, PRETORIA DIE STAATSDRUKKER, PRETORIA
