The respondent on 6 September 1994 served a combined summons on the appellant claiming payment of R or the return of a tractor it had

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1 MAISELA v KGOLANE NO 2000 (2) SA 370 (T) 2000 (2) SA p370 Citation Case No A650/98 Court Judge 2000 (2) SA 370 (T) Transvaal Provincial Division Hartzenberg J, Lewis J Heard August 31, 1999 Judgment August 31, 1999 Counsel Annotations G J Scheepers for the appellant. M A Mokobi for the respondent. Link to Case Annotations Flynote : Sleutelwoorde Customary law - Applicability of - To contracts of sale - Indigenous law in cases of sale applying only where principles of indigenous law providing for sale of thing sold - Wrong to adjudicate on sale not governed by indigenous law according to principles of indigenous law merely because parties black - Also wrong to regard sale as regulated by indigenous law if common-law principles not known to indigenous law agreed upon by parties. Customary law - Proof of - By party - Law of Evidence Amendment Act 45 of 1988, s 1(2) - Unless judicial notice can be taken of applicable principles of customary law, party to allege and prove such principles - Must allege tribal connection of litigants, applicable system of indigenous law and applicable principles - Said allegations factual questions open to admission or denial by other party - If denied, up to alleging party to prove such principles. Practice - Judgments and orders - Rescission of - Of a default judgment - Where granting of application for rescission would render it unnecessary to deal with related application for interim interdict, application for rescission to be dealt with first. Headnote : Kopnota The respondent on 6 September 1994 served a combined summons on the appellant claiming payment of R or the return of a tractor it had 2000 (2) SA p371 allegedly sold and delivered to the appellant. The appellant resisted the action and raised a special plea of prescription that was dismissed by the magistrate. The main action was by agreement postponed to 3 September 1996, on which date the appellant and his attorney failed to appear because the latter had been informed by the clerk of the court that the matter had been postponed indefinitely. The respondent was granted judgment by default. Three days later, on 6 December 1996, the appellant brought an ex parte application claiming return of the tractor (which had been attached in terms of a warrant of execution granted by the magistrate) and an interim interdict against the respondent returnable on 3 January On the same day the appellant filed an application for rescission of the default judgment granted on 3 September The magistrate granted the ex parte

2 application. During January 1997 the magistrate discharged the rule nisi and refused the application for rescission. Before deciding the issues the magistrate invited the parties' legal representatives to address him on the question of which one of the two applications had to be heard first. He decided that the rule nisi had to take precedence over the application for rescission. After discharging the rule and granting costs to the respondent, the magistrate proceeded to hear the application for rescission, which he refused on the grounds that the appellant's attorney had been in wilful default and that his conduct had to be attributed to the appellant. The appellant appealed against the various orders made by the magistrate. There were three issues in the appeal: (1) whether the magistrate had been wrong to discharge the rule in terms of which the attachment was suspended pending the outcome of the application for rescission of the judgment and to award costs against the appellant; (2) whether the magistrate had been wrong not to set aside the judgment of 3 September 1996 as the appellant had shown good cause and had not been in willful default; and (3) whether the magistrate had been wrong to dismiss the special plea of prescription, in particular in his finding that indigenous law applied without any mention of it on the papers. In an appeal to a Provincial Division, Held, that the magistrate's approach had been wrong: it was clear in the first place that if the application for rescission had been successful it would have been unnecessary to deal with the application for the interim interdict because the default judgment, which constituted the entire basis for the warrant of execution, would have fallen away. (At 374E - E/F.) Held, further, as to the magistrate's refusal of the application for rescission, that the attorney for the appellant's explanation for his failure to attend to court on 3 September was perfectly reasonable and that the appellant himself had not put a foot wrong. Accordingly, the magistrate ought to have rescinded the default judgment. There had also been nothing wrong in the appellant's conduct in bringing the application ex parte and the magistrate ought not to have made any order as to costs in respect of the application for the interim interdict. (At 374F - 375C.) Held, further, as to the magistrate's application of indigenous law and his consequent dismissal of the appellant's special plea, that it was wrong to adjudicate on a sale that was not governed by indigenous law according to the principles of indigenous law merely because the parties were both black. It was clear that indigenous law could apply in cases of sale only where the principles of indigenous law provided for the sale of the thing sold. It would also be wrong to regard such an agreement as regulated by indigenous law if common law principles not known to indigenous law had been agreed upon by the parties. (At 376E - F/G.) Held, further, that s 1 of the Law of Evidence Amendment Act 45 of (2) SA p372 required a litigant who wished to have an action determined according to indigenous law to prove that indigenous law was applicable to the case unless judicial notice could be taken thereof. In the instant case it had been incumbent on the respondent, in order to be able to rely on indigenous law, to allege, firstly, the tribal allegiance of the litigants; secondly, the particular system allegedly applicable to the dispute; and, thirdly, what the applicable principles were. These were all factual questions open to admission or denial by the other party. If the opposing party denied the first party's exposition of the applicable indigenous law it was up to the latter to prove it. The respondent had failed to raise any of the above

3 issues in the pleadings and the magistrate had accordingly been wrong in his finding that indigenous law was applicable to the case. (At 376H - 377B.) Held, further, that the appellant's special plea of prescription had in any event been extremely vague: it had consisted of just one sentence stating that the respondent's claim had prescribed and had to be dismissed. The appellant did not allege when the debt had become payable or when it had prescribed. There had therefore been nothing for the respondent to replicate to. Thus, even if the magistrate had been correct in his approach to the matter, he could not have decided the issue of prescription without its having been properly pleaded and before hearing evidence. (At 377F/G - J.) Held, accordingly, that the appellant should succeed on all three issues except in his contention that the magistrate ought to have found that the respondent's claim was extinguished through prescription. (At 378A - A/B.) The Court therefore made an order setting aside (1) the magistrate's dismissal of the applicant's application for the rescission of the default judgment and (2) the default judgment itself. Leave was granted to the appellant to defend the action. The magistrate's order dismissing the special plea of prescription was set aside. (At 378B - D/E.) Cases Considered Annotations Reported cases Cavalinias v Claude Neon Lights SA Ltd 1965 (2) SA 649 (T): distinguished Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A): dictum at applied Union & SWA Insurance Co Ltd v Hoosein 1982 (2) SA 481 (W): dictum at 482G applied Statutes Considered Statutes The Law of Evidence Amendment Act 45 of 1988, s 1: see Juta's Statutes of South Africa 1998 vol 1 at Case Information Appeal from a decision in a magistrate's court. The facts appear from the judgment of Hartzenberg J. G J Scheepers for the appellant. M A Mokobi for the respondent. Judgment Hartzenberg J: On 6 September 1994 the respondent served a combined summons on the applicant and filed same with the clerk of the court, Nebo. The respondent claimed payment of a sum of

4 R or the return of a tractor sold and delivered to the appellant. The appellant resisted the action and also raised a special plea. The plea was one of prescription of the claim. The special plea was argued on 26 June 1996 before the magistrate, Nebo, who reserved judgment and subsequently found in favour of the respondent. On 26 June 1996 the parties agreed 2000 (2) SA p373 that the main action should be heard on 3 September 1996, thus the main action was postponed to 3 September On 3 September 1996 the respondent and his attorney of record appeared before the court, but neither appellant nor his attorney appeared. The respondent was then granted judgment by default. Precisely what judgment was granted does not appear from the papers. The prayers in the respondent's particulars of claim were the following: '1. Return of the tractor. 2. Alternatively, payment of an amount of R An order that the agreement had been cancelled. 4. Statement of an account by the appellant. 5. Payment of the income of the appellant insofar as it does not exceed R Interest a tempore morae. 7. Costs of suit.' It is not clear if judgment was granted for the return of the tractor alone or if there was also a judgment sounding in money or perhaps for a statement and debatement of account. On 14 November 1996 the respondent approached the clerk of the court, Nebo, for a warrant of execution, which was granted. The respondent forwarded the warrant of execution together with instructions to remove the tractor to the sheriff. On 3 December 1996 the sheriff served the warrant of execution on the appellant, attached and removed the tractor. On 6 December 1996 the appellant brought an ex parte application claiming return of the tractor and an interim interdict against the respondent returnable on 3 January On the same day the appellant filed an application of rescission of the default judgment granted on 3 September The attorney of the appellant in an affidavit stated that on 26 June 1996 the matter was postponed until 3 September 1996 and that he diarised it accordingly but he explained that, as judgment on the special plea had been reserved by the magistrate, he was uncertain if the matter would proceed on 3 September To make sure he telephoned the clerk of the court. The latter informed him that according to the court file the matter had been postponed indefinitely. He accordingly accepted that the matter would not proceed on 3 September He expected a new notice of set-down and advised the appellant accordingly. The appellant, according to his affidavit, at all times wished to put forward his defence. The magistrate granted the ex parte application with a return day on 3 January During January the rule nisi was discharged and the application for rescission was refused. The appellant appeals against

5 the various orders made by the magistrate. There are three distinct issues in this appeal. 1. The appellant maintains that the magistrate was wrong to discharge the rule in terms of which the attachment was suspended pending the outcome of the application for rescission of the judgment and especially to award costs against him. 2. He further contends that the magistrate was wrong not to set aside the judgment of 3 September as he had shown good cause and was not in wilful default. 3. He contends that the magistrate was wrong to dismiss the special plea of prescription; in particular he feels aggrieved by the magistrate's finding that indigenous law applies without any mention of it on the papers (2) SA p374 Before deciding the above-mentioned first two issues, the magistrate invited the legal representatives to address him on the question of which one of the two applications was to be heard first. On behalf of the appellant it was contended that the application for rescission was to be heard first. The respondent argued the opposite. The magistrate then ruled that the return day of the rule nisi was to be dealt with first. After argument on that aspect the magistrate discharged the rule and granted costs to the respondent. Thereafter the application for rescission was heard. The magistrate reserved judgment and thereafter gave written reasons. He found that the appellant's attorney was in wilful default and that his conduct was to be attributed to the appellant himself. He relied on the judgment in Cavalinias v Claude Neon Lights SA Ltd 1965 (2) SA 649 (T) for this latter finding. The headnote of that judgment reads as follows: 'A magistrate's court is entitled to refuse to grant an application for rescission of a default judgment even where the fault is that of the applicant's legal representative.' The magistrate's approach was not correct. In the first place it was clear that if the application for rescission of judgment was successful it would have been unnecessary to deal with the application for the interim interdict. The default judgment, the whole basis of the warrant of execution, would have fallen away. The status quo automatically had to be restored. Dealing with the application for rescission of judgment, there was only one respect in which the attorney for the appellant was remiss. That was his failure to attend court on 3 September His explanation why he thought that it was unnecessary to appear on that date sounds perfectly bona fide. After all he telephoned the clerk of the court and was told that the matter had been postponed indefinitely. That, he conveyed to the appellant. As far as the appellant was concerned he did not put a foot wrong at all. He wanted to defend the respondent's claim at all times. The defence proffered in his affidavit, namely that the agreement was amended and that the amount of R800 which was paid was accepted in full and final settlement, is not inherently improbable and, if true, is a defence against the plaintiff's claim. In any event the judgment given by the magistrate was not clear and ought to be set aside on that ground alone. I fail to see how the magistrate could have reached the conclusion that the attorney was in wilful default. Even if so, there is a vast difference between the facts in the Cavalinias matter supra and this case. There was definitely no reason to visit the appellant with the conduct of

6 the attorney. In my view good cause was shown. The magistrate should have rescinded the default judgment. As the appellant was asking for an indulgence to have the judgment set aside the appellant was to pay the costs of the application for rescission on an unopposed basis. On the other hand, the respondent was palpably unreasonable to resist the application and the costs incurred as a result 2000 (2) SA p375 of the opposition ought to be paid by the respondent. It would not have been necessary to deal with the interim interdict but, even if the magistrate dealt with it, the circumstances of this case are such, especially the fact that the tractor had been in the possession of the appellant for 12 years, that I cannot see anything reprehensible in the appellant's conduct to bring the application ex parte. After all the respondent dallied for three months before the tractor was attached. The default judgment was granted on 3 September and the attachment took place on 3 December. The magistrate in the circumstances ought not to have made any order as to costs in respect of the application for the interim interdict. The next question to be decided is if the magistrate was correct to find that indigenous law applies and to dismiss the special plea on that ground. In this connection it is important to note that in the respondent's pleadings, consisting of the original summons and particulars of claim thereto, its amended particulars of claim and its further particulars, no mention was ever made either directly or by implication that indigenous law applies. As a matter of fact, the attorney for the appellant argued the special plea, and only when the special plea was argued on behalf of the respondent was the question of indigenous law raised for the first time. It does not appear from the respondent's pleadings which particular system of tribal law is to apply and it also does not appear what the respondent alleges the relevant provisions thereof are. Section 1 of Act 45 of 1988 (the Law of Evidence Amendment Act) is applicable. It provides as follows: '(1) Any court may take judicial notice of the law of a foreign State and of indigenous law in so far as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles. (2) The provisions of ss (1) shall not preclude any party from adducing evidence of the substance of a legal rule contemplated in that subsection which is in issue at the proceedings concerned. (3) In any suit or proceedings between blacks who do not belong to the same tribe a court shall not in the absence of any agreement between them with regard to the particular system of indigenous law to be applied in such suit or proceedings, apply any system of indigenous law other than that which is in operation at the place where the defendant or respondent resides or carries on business or is employed, or if two or more different systems are in operation at that place (not being within a tribal area), the court shall not apply any such system unless it is the law of the tribe (if any) to which the defendant or respondent belongs. (4) For the purposes of this section ''indigenous law'' means the law or custom as applied by the black tribes in the Republic.' The section became necessary when the courts of the native commissioners where phased out. So long as black people could go to a native commissioner's court they could have had their cases heard according to indigenous law in appropriate circumstances. In the matter of Ex parte Minister of Native Affairs: In re Yako v Beyi 1948 (1) SA 388 (A) the Appeal Court

7 had to consider s 11(1) of Act 38 of 1927, according to 2000 (2) SA p376 which a native commissioner had a discretion to decide a matter according to the principles of black law. Schreiner JA explained that a commissioner could only exercise that discretion in cases where black law could apply. He pointed out that in actions between blacks, for instance arising out of their being members of a limited liability company, the discretion does not arise at all. At he said the following: 'What is intended is that wherever the case is one in which native law could be applied on the ground that the issues relate to matters in respect of which native custom exists, the discretion arises. In some cases it would doubtless be clear not only that native custom is involved but also that the native commissioner would not be exercising his discretion judicially if he did not decide the issue by applying such custom. In other cases, on the contrary, it would be clear that no native custom could possibly have any bearing. No one would, I apprehend, suggest that an action between natives arising out of their being members or directors of a limited liability company could ever involve such customs. But in many kinds of case it might be an open question whether the native custom could possibly or reasonably be applied. However that may be, it does not seem to me to be of great importance to fix precisely the kind of case in which the discretion exists, for if it appeared to the native commissioner to be doubtful whether the native custom had any bearing whatsoever on the case the discretion, even if it existed, would probably be exercised against the use of native law - so that the same result would be reached.' It is clear that indigenous law in cases of sale can only apply between black people in circumstances where the principles of indigenous law provide for the sale of the thing sold. It would be wrong to adjudicate upon a matter of a sale, which is not governed by indigenous law, according to the principles of indigenous law merely because the parties are both black people. It would be wrong if common-law principles not known to indigenous law were agreed upon by the parties to regard the agreement as regulated by indigenous law. In indigenous law and before contact was made with the western way of living there was no provision for payment in money. It was therefore difficult to distinguish an agreement of barter from one of sale. The law of contract was not sophisticated or highly developed. In this regard, see Joubert (ed) The Law of South Africa vol 32 para 160, Bekker Seymour's Customary Law in South Africa 5th ed at 332 and Olivier et al Die Privaatreg van die Suid-Afrikaanse Bantoetaalsprekendes 3rd ed at 544 and 545. Principles differ from tribe to tribe. Section 1 of Act 45 of 1988 requires of a litigant who wishes to have an action determined according to indigenous law to prove that indigenous law is applicable in the case. Unless judicial notice can be taken of the principles thereof, it is for the litigant to allege and prove those principles. If he fails to establish that, the common law applies. In this matter the respondent, in order to rely on the principles of indigenous law, had to allege, firstly, the tribal connection of the two litigants. That is a factual question which can be admitted or denied by the other party in the pleadings. Secondly, he had to allege the particular system of indigenous law which he alleges is applicable. Again it is a factual question which can be admitted or denied. Thirdly, he had to allege what the relevant principles applicable are. If the appellant denied 2000 (2) SA p377

8 the respondent's exposition of the tribal law it was for the respondent to prove those principles. Where the respondent failed to raise any one of these issues in the pleadings it was not competent for it to maintain that indigenous law applies. The magistrate was accordingly wrong to find that indigenous law does apply. There is a further reason why the magistrate's finding that indigenous law applies is at least questionable. It appears from the amended particulars of claim that the respondent equated the Massey Ferguson tractor, which was sold, according to the respondent's pleadings, 'voetstoots' to a cow in order to fit it into the framework of the principles of tribal law. It is highly unlikely that the concept of a sale 'voetstoots' forms part of any tribal law. According to indigenous law the purchaser of a cow which has been identified as his is entitled to the progeny thereof born whilst under the control of someone else. It seems fair to assume that by claiming a statement and debatement of account and the income of the crop for each year, that the crop was regarded as the progeny of the tractor and equated to the calf of a cow. Mr Makobi argued that this is really an acculturisation of a tractor into the culture of the tribe in question. In my view it is one thing to let the purchaser have the calves of a cow which lived on the grazing provided by mother nature. It is totally different to forfeit the income of a crop raised, inter alia, with the assistance of a tractor. To raise a crop, apart from planning and labour, significant other inputs than the use of a tractor are required, such as seed, fertiliser, fuel and tilling and reaping expenses to name but a few. Very often farmers produce crops at a loss. It is highly artificial to equate a crop to a calf. The appellant contends that the magistrate should have found that the respondent's claim became prescribed. In this case the appellant's special plea is extremely vague. It consists of one sentence in which the appellant states that the respondent's claim has prescribed and ought to be dismissed with costs. The respondent did not replicate thereto. In Union & SWA Insurance Co Ltd v Hoosein 1982 (2) SA 481 (W) at 482G, Goldstone J said about a plea of prescription: 'Prescription is normally raised by way of special plea and in no other way. It cannot, for example, be raised by way of exception. This is presumably for the reason that the plaintiff may wish to replicate a defence to the claim of prescription, for example, an interruption.' A plea of prescription is not an exception and need not necessarily be decided on the pleadings alone. If there are factual disputes the court must listen to the evidence, decide the facts and apply the law thereto. If the factual issues in respect of the special plea and the main case overlap the court can listen to all the evidence before deciding the special plea. In the present matter the appellant did not allege when, in its contention, the debt became payable and accordingly when it prescribed. There was nothing for the respondent to replicate to. Without any evidence there was no basis upon which a court could decide if the debt prescribed or not. Even if the magistrate approached the matter correctly he could not have decided the issue of prescription without it having been properly pleaded and before hearing evidence (2) SA p378

9 It follows from what has been said that the appellant is successful on all three the issues except that he does not succeed in the contention that the magistrate should have found that the respondent's claim was extinguished through prescription. Nevertheless it was substantially successful and is entitled to its costs of appeal. It is for the respondent to decide if it wishes to amend its pleadings and proceed with the case. I would make the following order: 1. The appeal succeeds with costs. 2. The order of the magistrate dismissing the appellant's application for rescission of the default judgment and ordering the appellant to pay the costs is set aside and substituted with the following: 'The default judgment granted on 3 September 1996 in favour of the plaintiff is hereby set aside and leave is granted to the defendant to defend the action. The defendant is to pay the costs of the application for rescission on an unopposed basis. The costs occasioned by the plaintiff opposing the application are to be paid by the plaintiff.' 3. The order of the costs in favour of the respondent in respect of the interim order is set aside. 4. The magistrate's order dismissing the special plea of prescription with costs is set aside. Lewis J concurred. Appellant's Attorneys: Van Zyl, Le Roux & Hurter Inc. Respondent's Attorneys: C O Morolo & Partners.