Mlombo v Fourie

• Judge: Trollip J
• Judgment Date: 29 May 1964
• Court: Transvaal Provincial Division

Mlombo v Fourie
1964 (3) SA 350 (T)

1964 (3) SA p350

Citation	1964 (3) SA 350 (T)
Court	Transvaal Provincial Division
Judge	Trollip J
Heard	April 15, 1964; April 16, 1964; April 17, 1964; April 21, 1964; April 22, 1964; April 23, 1964; April 24, 1964
Judgment	May 29, 1964

Flynote : Sleutelwoorde D

Vindication — Offspring of animals — Fruits accruing after litis contestatio — Value to be paid by bona fide possessor and mala fide possessor — Evidence — Witnesses — Recall of witness for further examination — Discretion of Court.

Headnote : Kopnota

F In a vindicatory action for the recovery of an animal its offspring should and would generally follow the mother.

After litis contestatio, i.e. when pleadings are closed, any fruits that accrue and are gathered by the possesor must be accounted for to the owner of the principal thing. The value must be that taken at the date of trial. Where the possessor is mala fide the value is the value of the article to the plaintiff. In ascertaining that value the Court is no longer bound to accept the plaintiff's evidence of that value but must have regard to all the evidence adduced.

G The Court has a discretion to recall a witness for further examination or cross-examination before the person, who has called the witness, has closed his case. Furthermore the Court has such a discretion at any time up to judgment, that is, even after the parties have closed their respective cases.

Case Information

H Vindicatory action. Facts not material to this report have been omitted.

D. Soggot, for the plaintiff.

Z. P. le Roux, for the defendant.

Cur. adv. vult.

Postea (May 29th).

1964 (3) SA p351

Judgment

Trollip, J.:

This is a vindicatory action for the recovery of certain cattle or payment of their value.

The plaintiff alleged that he owns and, up to the beginning of 1962, was in possession of 21 head of cattle; that one Johnson Mtsjali on 4th A January, 1964, unlawfully sold them to defendant; and that defendant is still in possession of them. The defendant in his original plea dated 26th October, 1962, admitted purchasing and receiving delivery of the cattle from Mtsjali in January, 1962, and that they were still in his possession, but he put the plaintiff to the proof that he owned them. When the case was first called for trial on 24th April, 1963, the B defendant applied to amend his plea by modifying his admission that he was still in possession of all the cattle by alleging that prior to the issue of summons he in good faith, sold 10 of them which he in consequence no longer possessed. The Court granted leave for the plea to be so amended, and postponed the trial at defendant's cost. The effect of the amended plea, dated 20th May, 1963, was, and according to the C Court's leave could only be, that except for the 10 cattle the defendant was still in possession of the remainder. The plaintiff denied that the defendant had sold any of the cattle.

The defendant did not plead or at any stage of the case rely upon D estoppel; indeed, during the course of the hearing Mr. le Roux, who, it should be here mentioned, was only briefed to undertake the defendant's case very shortly before it was due to commence, expressly disavowed any intention of relying upon estoppel. The question of such a defence therefore does not arise.

The only issues that did arise were - (i) whether the plaintiff proved that he was the owner of the cattle; (ii) whether the defendant E did sell the 10 cattle; and if so, whether and what plaintiff can recover in regard thereto; and (iii) the value of the cattle still in the possession of the defendant.

The credibility of the witnesses must first be assessed. The villain in F this whole unfortunate incident, Mtsjali, was not called, because, according to Mr. le Roux, he could not be traced. Of those who were called, the evidence of the following was not attacked and their credibility is beyond reproach as being quite independent and impartial.

[The learned Judge then dealt with such witnessess and proceeded.]

I conclude, therefore, that the cattle Mtsjali sold to the defendant on G 4th January, 1962, belonged to the plaintiff, and that Mtsjali had no right to stell them.

Mr. Soggott for the plaintiff, maintained that the defendant, when he purchased the cattle, knew that Mtsjali did not own or have the right to sell them, and that he was therefore male fide. This raised the issue of the credibility of the defendant and some of his witnesses.

H [The learned Judge then dealt with the evidence of the defendant and proceeded.]

In other words, in my view, it is quite impossible to rely upon the defendant's evidence at all by itself.

Despite that severe criticism of the defendant's credibility I think that it is reasonably possible that when he purchased the cattle from Mtsjali he genuinely believed that they belonged to the latter. Both Seiling and van Vuuren held that belief and communicated it to the defendant

1964 (3) SA p352

Trollip J

when he bought Sun Valley. Moreover, it is reasonably possible that when the plaintiff had to move from Joynt's farm, after being there for only two months, he was desperate to obtain grazing for his cattle A temporarily until he could accommodate them at Balfour where he intended retiring; that he agreed that Mtsjali should represent to van Vuuren and Seiling that the latter was the owner of the cattle in order to facilitate his getting grazing for the cattle as an employee; and that such a representation was made by Mtsjali. That accords too with the plaintiff's evidence at Mtsjali's trial quoted above. In conformity with that arrangement, it is reasonably possible that Joubert was told that B he had to pretend that the cattle were Mtsjali's and that he did so. That is borne out by a significant piece of evidence in Joubert's testimony where he supports the defendant's version that Mtsjali was supposed to feed and pay him for his services as herdsman. That would C also explain the evidence of Abram Mohali and Amos Mpambo that Joubert told them that the cattle belonged to Mtsjali. In the light of all that evidence, Joubert's evidence to the contrary was not convincing.

I also think that the defendant probably did sell ten of the cattle as he testified. He said that he sold them together with two of his cattle D to one Kotze of the Central Butchery, Vereeniging, in March, 1962, for R720, for which he received a cheque. For some unexplained reason Kotze was not called to corroborate him, and the document, exh. C, that purports to be the latter's written declaration confirming the transaction is, of course, worthless as evidence; but the defendant did E produce and hand in an authentic bank deposit slip in his favour of 2nd March, 1962, for R720 which tends to support his version of the sale. Moreover, it is probably true that he purchased the cattle, as he said, for speculation and that as soon as Mtsjali's trial was concluded he sold off most of the old cattle that he had bought. This seems to be borne out by the schedule I have prepared and annexed to this judgment F for easy reference giving what I think is the effect of the evidence. (In regard to this schedule I should point out that the correlation of the animals pointed out by the plaintiff at the inspection - see the last column of the schedule - with those mentioned in the pleadings - see the first column thereof - was done during argument by Mr. G Soggott, but I agree with him that such correlation is probably correct according to the description of the animals). Of all the animals that were fully grown in February/March, 1962, the defendant only produced two cows (Nos. 11 and 12 on the schedule) at the inspection on 16th April, 1964. As seems to be customary with cattle owners (cf. H plaintiff's evidence) I think that the defendant probably sold off the balance of these older animals about 2nd March, 1962; that is, the eight oxen (Nos. 1 - 8) and the other two cows (Nos. 13 and 14).

The plaintiff fixed the number of his cattle at Sun Valley at 21, including one calf which at that time was four to five months old (No. 19 on the schedule), and which would be about 21/2 years old now. If the ten sold by the defendant are deducted the balance is 11. Possession of at least that number was admitted by defendant in his plea, and by his producing that number of mature cattle for inspection

1964 (3) SA p353

Trollip J

as being the balance of the herd. Of the eleven so produced the plaintiff satisfactorily identified eight (Nos. 9 - 12A, 15 and 18 on the schedule) as being his and being part of his original herd. Consequently the plaintiff has, in my view, proved his title to those eight animals, and is entitled for an order for their restoration.

A The remaining three animals the plaintiff firmly rejected as being his, and because of the adverse views I hold about defendant's integrity, I strongly suspect that those three were foreign animals introduced by the defendant at the inspection in order to confuse and trap the plaintiff. However that may be, it is still clear that on the B defendant's own admission he still has three of the cattle in his possession, which are Nos. 16, 17 and 19 (the above-mentioned grown calf) which he must also return to the plaintiff, except No. 19 which, as appears later, is probably not his.

C According to the defendant's evidence he received 22 (not 21) head of cattle from Mtsjali on 4th January, 1962, which included two calves. One was obviously No. 19; the other was a very young animal which the defendant valued at R2 - R3 (I shall refer to this animal as No. 20). I think that it is clear that No. 20 was born after the cattle arrived on Sun Valley, the plaintiff being probably unaware of its birth. That would reconcile the plaintiff's and defendant's respective figures in D regard...