Hilleke v Levy

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Greenberg JA, Schreiner JA and Davis AJA
• Judgment Date: 11 December 1945
• Citation: 1946 AD 214

Greenberg, J.A.:

This is an appeal against an order granted against the appellant, Mrs. Hilleke, in favour of the respondent in the High Court of South-West Africa. In an ex parte petition brought by the respondent, the Court granted a rule calling upon

Greenberg, J.A.

the appellant to show cause why she should not be ordered to restore to and put respondent in possession of certain sheep and cattle. Before the return day affidavits were filed on behalf of the appellant in answer to the petition and further replying affidavits on behalf of the respondent. The Court, after hearing argument, confirmed the rule with costs.

A brief reference to the facts set out in the affidavits will be sufficient for the purposes of this appeal. On the 25th May, 1944, the parties entered into a written agreement in terms of which the appellant was to deliver to the respondent sheep and cattle belonging to the appellant which the respondent was to feed and tend for the period of a year; in consideration of his doing so he was to receive a share of the progeny. He was also to store certain articles of furniture and other movables on behalf of the appellant, who bound herself not to remove the livestock for a period of a year. The sheep and cattle were delivered by appellant to respondent in terms of the agreement. At the same time the appellant purchased from the respondent 45 cows and it was agreed between the parties that these cows should remain in the respondent's possession on the same terms as were provided in the written agreement. The sheep and cattle were kept by respondent on his farm Evril but during the course of the year a considerable number had died; he says in his petition that on the 16th January, 1945, he left his farm to go to Windhoek and when he returned on the 24th January, he found that the flock and herd belonging to appellant and held by him under the agreements, together with certain livestock of his own, had been removed during his absence and without his knowledge or consent. From the affidavits of two native employees of respondent who were on the farm during his absence it appears that it was the appellant who caused the animals to be removed and that this took place on the 22nd January.

On these allegations the rule nisi was granted; in the affidavits filed on appellant's behalf it is admitted that she caused the animals to be removed, took possession of them and was at all material times thereafter in possession. She says, however, that at a meeting which took place in Windhoek between herself and respondent and one Baum (who is the respondent's part-time bookkeeper) on the 19th December, it was agreed between the parties that the appellant, as soon as she arranged for grazing, could go to the farm at any time that suited her and remove her animals and

Greenberg, J.A.

other possessions, and that it was in pursuance of this agreement that the removal was effected on the 22nd January. This account of what happened is denied by respondent and Baum in replying affidavits filed on respondent's behalf. They admit the meeting and a discussion of a cancellation of the agreements of the 26th May, 1944, but say that it was only after the termination of their contractual relations had been arranged and their respective contractual claims had been settled that he would hand over to appellant her livestock, which she would then be entitled to remove from the farm.

One Bosman, on whose farm appellant had arranged for the grazing of her stock before the visit to Evril on the 22nd January, and who accompanied her on this visit says that Baum, in a conversation with appellant and himself, told them that he agreed with appellant's account of the meeting of the 19th December (and appellant corroborates Bosman on this point), but this is disputed by Baum.

I should add that in this appeal, and at any rate in the final stage of the proceedings in the Court below, nothing turned on the fact that among the livestock removed on the 22nd January some animals belonging to...