IN THE HIGH COURT OF
In the Appeal of :
MAKALO NKHABU Appellant
V'MATHOTHO NKHABU Respondent
J U G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on the
14th day of February, 1990.
The present appellant who was plaintiff in the Court of
first instance sued the respondent who was the defendant in that
three cattle, three donkey her Mafa Mosalemane before
The appellant is the deceased's heir in the deceased's
first house by 'Mamakalo. The respondent is the deceased's heir in
house by the deceased's 2nd wife 'Makhoboso.
The local court which is the court of first instance
partly found for the present appellant. He appealed to the Central
found for him in whole. The respondent appealed to the
Judicial Commissioner's Court
which reversed the results of the Central Court and made
order absolving the present appellant from the
instance; hence his appeal to this Court.
His grounds of appeal are that
(1) The learned Judicial Commissioner
misdirectedhimself in accepting Nyatso's statement thatthe
animals were dowry cattle for Khoboso
(a daughter of the respondent's mother), because neither
the respondent nor his witness said this is evidence, this having
by Nyatso in his address to the Court after evidence had
The learned Judicial Commissioner erred inholding
that the appellant did not prove thatthe animals belonged to his
father as it wasshown that they bore his deceased
father'searmarks and that the respondent's motherdid not
have any earmark.
The learned Judicial Commissioner erred in
interfering with the judgment of the local court whichsaw
the witnesses and believed the evidence ofthe appellant and his
The respondent never denied that the animals wereused
or had been taken by his mother and as theheir in the second
house he is liable for hismother's delicts.
The respondent was not represented by NyatsoNkhabu
during the proceedings.
The learned Judicial Commissioner erred inquashing
the judgment of the lower courtsconcerning the award of the
fields to theappellant as the respondent never disputedthat
the appellant was entitled to the sameand he never appealed
against the local court'sdecision in awarding them to the
The record of proceedings shows that the respondent did
not dispute the existence of the property involved in these
The respondent said the property was in the hands of
his mother and that he was looking after the animals on behalf of
The respondent did not dispute the appellant's heirship
to their late father's estate.
In the proceedings before the local court it was shown
that the respondent was using the property in dispute for the benefit
mother in his late father's 2nd house.
Evidence which was not disputed showed that the late
Mafa never ear marked any animals for his 2nd house * Neither the
his witnesses were taxed in cross-examination about
the ear-marks possibly being those allotted to the 2nd house.
It is common cause that after the evidence was led the
parties were given an opportunity to address the court.
However Nyatso to whom the respondent had resigned the
task of addressing the court on his behalf siezed that opportunity to
fresh evidence in the guise of addressing the court. It
was in this event that bewyses were produced and allegations made
that the animals reflected therein constituted Khoboso's dowry.
Needless to state the appellant was never given an opportunity
rebut this new evidence. Worse still it appears it was this piece of
evidence on which the Judicial Commissioner' s Court relied
deciding that there should he an absolution from the instance. I
need but just stats that absolution from the instance is granted
the plaintiff has not made out his case as thoroughly as he should
have, and the court feels that it would be inappre-priate
his case without giving him an opportunity to start his case afresh
if he wishes.
In the instant case the basis upon which the plaintiff
had founded his case was not breached nor was it appropriate to allow
which had not been canvassed in the evidence to influence
the court in favour of the party raising them during addresses. The
was not even advised that he could reply to them new as
they were when raised at the wrong stage even.
In view of the fact that the appellant's evidence that
the respondent's mother was allocated no ear-mark was unchallenged it
seem the Judicial Commissioner's Court erred in holding that
the appellant failed to prove that the animals existed for the
were in fact brought before the local court and it observed
bore ear-marks corresponding to the deceased's reputed
ear-mark. Thus the allegation that these animals were dowry cattle
hold because no evidence showed that their ear-marks were
altered from Khoboso's in-laws's ear-mark into Mafa's ear-mark which
as the respondent would wish the court to infer, was allotted
to his mother's house.
In my view it cannot be sustained that the respondent
should divest himself of his customary obligation towards his mother
to say that he was wrongly sued for his mother's wrongs. In
custom he is his mother's guardian.
He as the heir in the deceased's 2nd house is
responsible for his mother's delicts. He thus was rightly sued by
the appellant even
though he sought to say he was only his
mother's herdboy. It is to be observed that he did not even bring
his mother along to support him in his defence
at trial yet he wishes
to be heard to say he is not liable because he was using the property
for his mother' s benefit in no other
capacity than as her herdboy.
With regard to the fields no evidence was led showing
that they were re-allocated to the respondent's mother after the
death of the
The local court found for a fact that the fields were
allocated to the deceased Mafa and not to any of his wives
It would appear then pending the decision by the chief
to re-allocate to whomsoever he deems fit the appellant had a
that those fields formed part of the
unallocated estate of the deceased therefore as the heir to the
deceased's estate he would have
first priority to use them or
together with his uncles suggest to the chief how the fields are to
be re-allocated regard being had
to the respective needs of the
deceased's widowed houses.
Nyatso never disputed that the fields belonged to the
late Mafa nor did any of the parties who came before the
local court. It would seem therefore that the Judicial
erred in upsetting the local court's decision in
It is true that fields are not capable of being
inherited according to the customary law applicable to land
allocation in rural areas
but the law clearly sets out the procedure
to be adopted in the event of the allottee dying i.e. his heirs are
to be given priority
before the deceased's lands can devolve on the
chief of the area for re-allocation outside the members of the
It was argued for the respondent that the respondent.
being a layman should not be expected in conducting his case to
the proficiency of a trained legal practitioner. But in
C of A (CIV) No. 5 of 1908 Letlatsa vs Letlatsa (unreported) at 5
P. reacting to a more or less similar submission said :
"On the record damning answers were simply allowed
to stand. Mr Maqutu claimed that this happened because of the
of the cross-examiner. This may or may not be so, but if
he was inexperienced that fact should not be visited upon the
This Court makes a ruling confirming the order made by
the Central Court. Judgment is entered for the appellant with costs,
in this Court and the Judicial Commisssioner's Court.
The decision of the Judicial Commissioner's Court is
accordingly set aside.
J U D G E. 14th February, 1990.
For Appellant : Miss Ramafole For Respondent: Mr
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