No appearance was made on behalf of the first defendant and a default judgment was entered against him. The age or kinship of the prisoners are factors that do not hinder the application of the custom. The defendant denied the trespass and that the plaintiff was lawfully using the property on which the trespass allegedly occurred.
On January 22, 1929, a writ of execution was issued, and on February 12, an application was made in the Native Commissioner's Court for an extension of time to apply to set aside the default judgment. The court is of the opinion that under Basuto custom, the remainder of the customary dowry may be sued for. No evidence was led by the defendant, who, knowing the (dose of the plaintiff's case, applied for release from the instance.
Judgment: In the opinion of this Court, the words spoken are not plaintiffs having regard to all the circumstances of the case. Judgment: In this case it is quite clear that the bull whose value is pleaded was spoiled and slaughtered by the women in the appellant's kraal. The appeal is allowed with costs and the judgment of the court below altered to judgment for the plaintiff in the sum of £12 and.
Respondent contends that there is no male issue in the Great House and that he, being the eldest son of the second or Right Hand house, is the heir of the Great House according to native law. It is argued on behalf of the appellant that the rights of the parties were obtained under Tembu custom and that such custom should have been applied. Plaintiff demands a declaration that he is the eldest son of the late Dinwayo in his first or Great house, and as such is entitled to inherit his father's estate.
The defendant, on the other hand, says that Macwera, a daughter of the royal blood of the "Amaewera" clan, was the first. Held: On the 9th January, 1929, Matshalaza and Mamdingezweni, widows of the late Gabu, commenced an inquiry before the Native Commissioner at Mount Frere in terms of sec. It is ordered that Isaac Sodwele (defendant) remain guardian of the estate and issue of the late Gabu.
Magabu's kraal, should be brought to the late Gabu's kraal and remain there under the custody of the defendant. All costs to be paid from the estate, in accordance with the tariff set out in Proclamation no. Solicitor Kidney, acting for the widows, had a writ of execution granted in terms of the decree.
For these reasons, this court has come to the conclusion that the issuance of the writ of execution was irregular. allowed with costs and Native Commissioner's judgment. amended to read: "It ordered that the writ of execution issued on April 10, 1929, be set aside and that the costs of the suit be paid by the respondent."
GIDI MJONGILE V. GILBERT MAKOMA
Now the first question that arises is whether this decision of the Local Commissioner's Court is appealable. It in no way disposes of a certain part of the case, nor does it cause any prejudice to the appellant or has. The donkey was then seized and subsequently released by the appellant on payment by him in protest to the master of the pound of his sum.
The appeal is against this judgment and is brought on the grounds that it is against the weight of evidence and that, as respondent did not comply with the provisions of the impounding regulations, his conduct was unlawful and that even if it had been lawful, respondent overpaid is. 387 of 1893, but in our opinion his non-compliance therewith and the action of the bailiff in collecting a sum due did not render the bailiff unlawful, and we concluded that the appellant could not succeed on the claim as formulated in the present summons. Seliultz (E.D.L. 1920, p. 339), that his correct course would be to claim repayment of the amount paid under protest to the impound master.
The defendant denies that the plaintiff and the lie are sons of the right house and states: (a) that his father, the late Dyantyi, had only two wives, namely, Xomhlaba, the great wife, and Xomahini, the right hand man, who are and the plaintiff. are sons of the Great Lady and that he is the eldest; (6) that Motiwe and Qanqu are the illegitimate daughters of a woman with whom the late Dyantyi lived in the Cape Province before he married the parties' mother; (c) he admits that Alven is Qanqu's illegitimate son, that he was given to the late Dyantyi Sonti, that he had two daughters and that he died seven years ago. He further says that he is ready to leave with Nomahini, who lives in the kraal of the late Dyantyi, the 3 cattle and 15 sheep, the progeny of her daughter's dowry, which belong to her house. He claims to be the owner of these shares as heir to the Great and Qadi House.
It is admitted in this case that Nowanti, the mother of Motiwe and Qanqu, had no sons and this court is satisfied that she was the wife and not the mistress of the late Dyantyi Sonti. The crux of the whole position is the question of whether it is. was competent to make Dyantyi the plaintiff the heir of the main or great house and thus exclude the defendant without first disinheriting the latter in a constitutional manner. The judgment was delivered on August 29, 1929, and according to the rule the appellant had 21 days to appeal.
A reference to Rule 6 of the Rules of Procedure of the Domestic Court of Appeal, which sets out the period within which an appeal must be considered, shows that the Court of Appeal may extend this period if good cause is shown. A different decision would undoubtedly lead to laxity and would be contrary to the will and spirit of the legislature. The Xative Commissioner approved the exemption and declared the defendant the guardian of the children.
As regards the second question, there can be no doubt that the appellant is not the guardian of the children. However, the question in this case is not whether the dowry is refundable, but the status of the children, and the fact that dowry or fine has been paid for their mother cannot have the effect of legitimizing them.
