King William's Town: June 11, 1968, before O'Connell, President, and Adendorff and Warner, Members of the Court. Held (after consultation with Xhosa and Fingo assessors): The child becomes a member of the kraal in which he has grown up and been maintained, and the leader of that kraal, i.e.
NOORDOOSTELIKE BANTOE-APPELHOF
He said he tried to reconcile and get his wife to return to him, but she refused to do so. The defendant's evidence is that the plaintiff took his wife to Swaziland and that Constance and the children later returned to his kraal when a report was made to him.
2) JEREMIAH BEMBE
According to the plaintiff's evidence, he lived with his wife in the Ingwavuma District and in 1963 or 1964 he obtained employment in Swaziland, visiting his home on weekends. He stated that after the plaintiff was released from prison, he did come to his corral, but said he only wanted to see his children and had nothing to do with his wife.
PRAKTYK EN PROSEDURE
Beslis: dat die applikant sy reg tot appèl verbeur het weens sy versuim en dat die uitspraak van die kaptein se hof finaal geword het. Daar word gelas dat die uitvoering van die Kaptein se uitspraak van 7 September 1965 aangaande die toesig, toesig en beheer van die minderjarige kinders gestaak word.
NORTH-EASTERN BANTU APPEAL COURT
Onder hierdie omstandighede het die hof verkeerdelik versuim om 'n bevel daartoe toe te staan. Die appèl word met koste van die hand gewys, maar die uitspraak van die Bantoesakekommissaris word gewysig deur die volgende woorde by te voeg:-.
BANTU LAW
EVIDENCE
When a dispute arises after the death of the head of the kraal, the only means of ascertaining his wishes is by the evidence of those present when the disposition was made, and in the circumstances of the present case this corresponds to the exception known at common law, that hearsay evidence is admissible in respect of statements made by testators about the contents of their wills - see S.A. Nhlangano was present at this meeting and according to him the sisa cattle were not mentioned then but at a subsequent meeting his father sent for the Defendant and in the presence of the Plaintiff, Bulani and he himself said that the sisa cattle belonged to the House of Commons.
COMMON LAW
Bangani spent some time after assigning his property, which would not help the defendant for kraalhead maj. However, this issue was not raised in the notice of appeal and was therefore not addressed.
CONFLICT OF LAWS
The second defendant filed a special plea to the effect that the summons did not give rise to any action against him and in the alternative both defendants denied the allegations. 227 It was held that an ordinary case of defamation within the meaning of section 132 of the Natal Code of Native Law is a tort and that the Commissioner should have applied the Bantu law in the exercise of his discretion.
CHIEFS’ COURTS
The Commissioner for Bantu Affairs did not accept the plaintiff's evidence and preferred the defendant's evidence. The learned Commissioner for Bantu Affairs erred in not accepting evidence that the defendant was responsible for the absence of the plaintiff's daughter-in-law in view of the fact that the defendant had indeed brought the plaintiff's daughter-in-law from Pretoria.”
HUSBAND AND WIFE
Moreover, in such investigations, it is the duty of the presiding officer to investigate all relevant aspects of the case and may hear and cross-examine both sides. 344 (T.P.D.) and in this connection it should be noted that the respondent is a rebuttable witness in terms of Section 4 (1) of the Maintenance Act, although he. The amount of possible alimony to be paid is the discretion of the court and here again details of the income and expenditure of both parties as well as details of their obligations and other important facts are necessary for a fair decision, as alimony does not have to be paid to the wife when she has sufficient means and if the husband's income is limited, see p.
She received an order of R5 per month for the maintenance of the child and her earnings were R10 per month so the order that the Defendant must pay R7 per month was not justified.
MAINTENANCE
PATERNITY
On the basis of a complaint lodged with the maintenance company by the complainant (now the defendant) that the defendant (now the complainant) is the father of her two children and that he did not support them, an investigation was carried out in accordance with Articles 4 and 5 of the Child Support Act, no. . The first matter to be dealt with here is the application to grant late notice of appeal. 97 dated January 22, 1965, provided that the appeal should be filed within 21 days from the date of the order appealed against.
As there is no prospect of success on appeal, the application for leave to be notified of the appeal is dismissed with costs.
MAHOVEEA KUMALO
BANTU LAW (NATAL)
CUSTOMARY UNIONS
PRACTICE AND PROCEDURE
COURTS
SPOLIATION
That the learned Bantu Commissioner erred in upholding the judgment of the Chief therein. a) The writ of the Chief's Court is vague and embarrassing and discloses no cause of action;. The chief came to the conclusion that the cattle had belonged to Hadebe, and accordingly gave judgment for the plaintiff. Plaintiff's evidence merely established that the cattle had been delivered to him by the messenger of the Chief's Courtin settlement for his judgment against.
The evidence proved that the defendant had taken the law into his own hands and this cannot be allowed. The maintenance of law and order is infinitely more important than the mere rights of certain individuals to regain possession of their property, and the courts will summarily restore the status quo ante as a preliminary. for any investigation into the basis of the dispute.
SUCCESSION
The effect of this is that the property rights of the spouses are governed by Bantu law. The devolution of the estate to the Applicant and his appointment as heir according to Bantu law was therefore correct and the estate vested in him when his father died immediately. Noren opposed the granting of condonation of the late registration of the appeal and pointed out that the Applicant acquiesced in the appointment of his mother as heir for 13 years.
It is not the function of this Court to determine whether it is bad; and whether the respondent is entitled to the property again seems to depend on the terms of the agreement between the two parties, and the only way in which the case can be resolved is by granting the application for condonation of the late service of the complaint and by setting aside the appointment of defendant to heir.
CUSTODY
Found: That the estate settlement has nothing to do with custody of the children. The appointment of a receiver for the plaintiff on August 18, 1967 could not cure the incompetence of the writ as adjournment to hearing. In light of this decision, it follows that the Commissioner's second interim order awarding the applicant custody of the children pending the outcome of the main appeal is correct and should not be disturbed.
The first issue to be considered here is an application for forgiveness for the late notice of the appeal.
BANTU LAW AND CUSTOM CUSTODY
Mr Langley argued that the best interests of the children were paramount; that in the present case, apart from very meager evidence, that issue had not been examined and from a perusal of the “Reasons for Judgment” it was clear that the Commissioner had not considered that aspect at all and therefore this court as “Upper Guardian” should do that. He pointed out that if the father was legally entitled to custody of the children, the present proceedings were unnecessary and a waste of time and money. He also submitted that at one point the care of the children had been entrusted to the defendant and that the onus was therefore on the plaintiff to show good reasons why the position should be changed.
As noted above, a father has the right to custody of his children and therefore the onus is on the defendant to allege and prove that he is not a fit and proper person to care for them or that any other reason is not in the interest of the children that he should exercise guardianship over them.
MUNICIPAL LOCATION
The defendant failed to obtain the approval of the said Superintendent for the said sale, but terminated his (defendant's) right to occupy the said site. For anyone purporting to purchase such a right otherwise than subject to the approval of the Superintendent is clearly unlawful. The appellant does not state the date of the proposal and it may have been an afterthought which took place long after the transaction.
Consequently, I am of opinion that the judgment of acquittal passed by the Court a quo is correct and that the appeal should be dismissed with costs.
CENTRAL BANTU APPEAL COURT
ADE8E vs. RADEBE
The defendant further states that the appointment of a receiver is of decisive importance at the discretion of the court and that the court should not appoint a receiver in this case. Instead, the problems were obscured. i) "The defendant denies that it will be in the interests of the estate to have a curator and liquidator appointed", and. ii) "The court should not appoint a receiver in this case." although the defendant conceded that the court had a discretion in the matter. Since the defendant has not given a witness statement, the court has doubts about this. i) "why it would not be in the interests of the estate to appoint a receiver" and.
In view of the circumstances outlined above, the court found that the appeal was not properly before it and struck it from the roll with costs.
CENTRAL BANTU APPEAL COURT MOSHOESHOE and HLONGWANE v. BANTU AFFAIRS
CITY COUNCL OF SPRINGS
ESTATES
The case was struck from the docket and the Court said that full reasons would be given later.
NOTICE OF APPEAL
On the basis of these two documents, the Assistant Commissioner for Relief Affairs (hereinafter referred to as the Assistant Commissioner) issued a certificate that Richard Hlabati "is appointed heir" to the estate of the late Jacob Hlongwane. It is not clear that the Assistant Commissioner had jurisdiction to make any finding affecting the distribution of property in the estate of the late Jacob Hlongwane. I will quote the minutes of the proceedings of February 5, 1968, and indicate the manner in which it lacks an inquiry under Rule 3 (3).
Wilhelmina Elizabeth Moshoeshoe—born Hlongwane Ethel Hlongwane—daughter of the deceased. is the only living child of the deceased.
DEFAMATION
The judgment of the Bantu Commissioner is reversed and the case remanded to this Court for default judgment against the defendant and an award of an appropriate amount of damages. I agree with the learned President's view that the Commissioner erred in refusing a default judgment and that the case should be remanded for entry of such judgment with an appropriate sentence. Guardianship - illegitimate child of spinster - no fine paid by natural father - mother subsequently lobolased by another man, on whose kraal child is brought up and supported.
Chief Justice - default judgment - failure to apply for annulment - rule determining interim period - final judgment.
