THE
HIGH COURT OF SWAZILAND
LYDIA
THELMA MASANGO
Plaintiff
And
MAGWAZA
NDWANDWE
Defendant
Civil
Case No. 1733/2000
Coram S.B.
MAPHALALA - J
For
the Plaintiff MR. MAGAGULA
For
the Defendant MR. O. NDZIMA
JUDGMENT
(22/05/2002)
This
is an action by the plaintiff for the return of cattle from the
defendant purportedly given in a "sisaed" transaction
between the parties. The defendant denies any "sisa"
agreement between him and the plaintiff.
The
plaintiff avers in her particulars of claim that during or about
1996, an oral agreement was made between the plaintiff and the
defendant in terms of which the plaintiff placed five (5) herd of
cattle at the defendant's homestead for safe keeping in
2
conformity
with the Swazi custom of "kusisa". The said five (5) herd
of cattle placed at the defendant's place of residence have since
reproduced and are presently believed to be ten (10) in number.
During
1998, the plaintiff requested the defendant to return the herd of
cattle together with their progeny but defendant refused to do so.
Pursuant
to the defendant's refusal to handover the cattle as requested by
plaintiff, the plaintiff referred the matter to the Umphakatsi
(Chief's court) of the area for arbitration. The Umphakatsi and the
family members of the two parties failed to resolve the matter in an
amicable way.
The
plaintiff prays for an order directing the defendant to return the
five (5) herd of cattle together with the offspring reasonably
believed to be ten (10) in number; alternatively payment of the sum
of E10, 000-00 being the value of the said cattle and costs of suit.
The
defendant opposes this action and in his plea avers that at no stage
did he and the plaintiff enter into an oral agreement of "sisa".
There are no cattle belonging to the plaintiff in the defendant's
homestead.
The
defendant avers further that sometime in 1992, the plaintiff came
requesting for cattle from the defendant for "insulamyembeti"
on behalf of his mother.
When
the matter came for trial the plaintiff led her own evidence and then
closed her case. The defendant on the other hand called the evidence
of three witnesses, namely: Beauty Magagula, Robert Ndwandwe and his
own evidence.
The
plaintiff in her evidence claims the cattle in question where a
progeny of a beast given to her mother, Dlelaphi Magagula for
"kuphahla" since she was sick. The plaintiff claims the
beast came from her grandmother and it was male, but was exchanged
for a female which subsequently gave birth to others. The plaintiff
further claims that the cattle were kept by one Moses Ndwandwe. She
collected them from him because Moses was facing litigation.
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The
defendant on the other hand in his evidence claims that the cattle
belong to him as they were left by Dlelaphi Magagula, his mother by
virtue of the Swazi custom of putting someone in somebody's else
stomach "kufakwa esiswini". The defendant states that he
was put in the stomach of this Dlelaphi Magagula because she did not
bore any male child. This fact has not been denied by the plaintiff
who only stated in her evidence in chief that the defendant was
failing in his duties.
The
defendant denied any "sisa" agreement between him and the
plaintiff. The defendant called one Beauty Magagula and Robert
Ndwandwe to support his story. These witnesses deposed that the
cattle belonged to Dlelaphi Magagula. Further, the evidence before
court that the cattle were twelve (12) in number when the plaintiff
took them from Moses Ndwandwe. Only three (3) herds of cattle ran
away from the plaintiff and returned back to Moses Ndwandwe who
subsequently surrendered them to the defendant. This evidence has not
been denied by the plaintiff and thus remains uncontroverted. The
defendant testified that these are the cattle which form the subject
matter before court.
When
the matter came for arguments Mr. Magagula for the plaintiff
contended that in terms of the laws of interstate succession the
plaintiff is entitled to inherit from the estate of her mother as she
is the only natural child of the deceased Dlelaphi Magagula who owned
the cattle in dispute. He referred the court to A.J. Oosthuizen, The
Law of Succession (1982) at page 15 where the learned author states
that the law of interstate succession indicates the order in which
the interstate heirs inherit from the deceased, and this order may be
per capita or representation per stirpes - (See Voet 38. 17 .4). An
heir inherits per capita when he inherits on the ground of the degree
of consanguinity in which he stands to the deceased. In casu it was
argued that the plaintiff as the only natural child is automatically
entitled to inherit from the estate of the deceased following the
above mentioned legal authority. On the other hand, so goes the
argument the defendant is far removed in the order of succession as
he was put into the deceased's stomach and that his rights to succeed
in the estate of the deceased are subservient to those enjoyed by the
plaintiff who is a natural child of the deceased.
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Mr.
Magagula went on to punch holes in the evidence of both witnesses for
the defence. That Beauty Magagula is the mother of the defendant and
is a naturally bias witness. Her evidence should be taken with a
pitch of salt in the circumstances. She further contradicted the
evidence of the defendant on how the deceased acquired the cattle in
dispute.
The
evidence of Robert Ndwandwe is to the effect that the defendant was
given the cattle to look after and not to own and this is more reason
that the cattle should be returned to the plaintiff.
Mr.
Ndzima argued at length au contraire. The gravamen of the defendant's
case is that the plaintiff has failed to prove that there was a
"sisa" agreement as per paragraph 3 of the Plaintiff's
particulars of claim which spells out the cause of action in this
matter. There was actually no "sisa" agreement between the
plaintiff and the defendant. The cattle in issue here forms part of
an estate of the late Dlelaphi Magagula and as such should have been
dealt with in terms of Rule 6 (23) of the rules of court.
After
careful consideration of the issues before me, I agree in toto with
the submissions made by Mr. Ndzima for the defendant on a number of
points. Firstly, the plaintiff has not called corroborative evidence
to support her story that the cattle in question were progeny of a
beast given to her mother, Dlelaphi Magagula for "kuphahla"
since she was sick. The plaintiff claims that the cattle were kept by
Moses Ndwandwe and that she collected them because Moses was facing
litigation. The evidence of Moses would have gone a long way to
support her case. Secondly, the evidence of the defendant that the
cattle belong to him as they were left by Dlelaphi Magagula, his
mother by virtue of the Swazi custom of putting someone in somebody's
stomach "kufakwa esiswini" is more credible. The plaintiff
has not denied this evidence and it remains uncontroverted. The
plaintiff only stated that defendant was failing in his duties.
Thirdly, the evidence of Beauty Magagula and Robert Ndwandwe support
the defendant's version in all material respects and that the cattle
belonged to Dlelaphi Magagula. Lastly, on the evidence presented
before court there was no "sisa" agreement as averred by
the plaintiff at paragraph 3 of her particulars of claim which founds
this action.
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It
is my considered view, that on the totality of the evidence before me
the plaintiff has not proved her case on a balance of probabilities
and I agree with Mr. Ndzima for the defendant that the matter should
have been dealt with in the traditional way, in that it involves
Swazi law and custom.
It
is still open to the parties to take the matter to the appropriate
forum for proper adjudication on these issues of Swazi law and custom
on how succession should proceed in these circumstances.
In
the result, I dismiss the action and costs to follow the event.
S.B.
MAPHALALA
JUDGE
