Ndauti v Kgami & Others

• Jurisdiction: South Africa
• Judge: Ettlinger AJ
• Judgment Date: 18 December 1947
• Hearing Date: 09 December 1947
• Court: Witwatersrand Local Division

Ettlinger, A.J.:

This is the return day of a rule nisi calling upon the first and second respondents, the latter of whom was cited as Samuel Dhlamine, to show cause why they should not be interdicted and restrained from dealing with a certain winning double tote ticket, issued by the third respondent on the 1st November, 1947, or from cashing the said ticket, pending an action to be instituted by the applicant against the first and second respondents for a declaration that the said ticket is the property of the applicant and the first respondent in equal shares and for delivery of the said ticket or half the proceeds thereof to him.

One James Nobela opposes the confirmation of the rule nisi on the ground that the said ticket is his property and that the applicant has no rights whatever thereto, but the first and third respondents have not appeared in opposition to the confirmation. Indeed, the first respondent supports the applicant in his claim. The third respondent disavows any interest in the proceedings and abides by the judgment of the Court.

At the hearing it was admitted by the applicant and the said James Nobela that the latter is the person whom the applicant intended to interdict and restrain pendente lite and against whom the action will be brought. It was also admitted by the applicant that the said James Nobela is not known as Samuel Dhlamine and that the said James had never told anyone that he was known as Samuel Dhlamine. The second respondent was cited as Samuel Dhlamine because the first respondent told the applicant that the person whom she identified as being in possession of the ticket in question was named Samuel Dhlamine.

In the circumstances no objection was raised to the amendment of the name of the second respondent to James Nobela, and this amendment will be granted. I may also mention at this stage that there is only one winning double tote ticket issued by the third respondent, on the 1st November, 1947, which has not yet been

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cashed, and this ticket is admittedly presently in the possession of the second respondent, James Nobela.

According to the applicant he is married to one Ellen Ndauti by native custom and on the 1st November, 1947, he and she went to the Eastern Districts Sporting Club at Benoni to attend the race meeting there being held by the third respondent. The applicant says that he authorised Ellen to act as his agent in placing money on the results of horse races on the course and at this race meeting; and he says that, in pursuance of that authority, Ellen, in partnership with the first respondent purchased a ticket on the double tote, which ticket cost £1, the ticket being on horses Nos. 13 and 15 on the race card. He says that Ellen paid first respondent 10s. as her share of the ticket and that the first respondent kept the ticket.

On that footing it is clear that the applicant and the first respondent were the owners of this ticket in equal half shares. He goes on in his petition to say that at the meeting, and after the second race of the double had been run, he was told by Ellen and by the first respondent that the ticket had been successful and that the first respondent would cash it. Later, he says, he was told by Ellen that the first respondent alleged that the ticket had been lost. He says that he has not received his half share of the ticket, or of the amount falling due thereon and that it now transpires that the first respondent has handed the ticket to the second respondent, who has endeavoured to cash it and to obtain the proceeds from the third respondent. He then goes on to say that on the following Monday, the 3rd November, 1947, he, in company with a friend of his named Lawrence and Ellen, went to the offices of the third respondent and told a Mr. Stevenson, who is the secretary of the third respondent, of the position. While they were there the second respondent came to the office and endeavoured to cash a ticket identical with that in dispute. When the second respondent tried to cash this ticket he was questioned as to his right to the possession of it and he said it was his. Some trouble ensued and eventually the parties went to Marshall Square, but no proceedings were taken by the police, on the ground that the dispute was really a civil matter.

This version of the applicant is corroborated by Ellen, who goes somewhat further than the applicant in that she says that prior to the running of the first race of the double she was told by the first respondent that she had taken out a double ticket on horses

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Nos. 13 and 15, and the ticket was actually shown to her. She says that after the conclusion of the second race of the double, and after it had been ascertained that the ticket was a winning one, she asked the first respondent where the ticket was and the first respondent then untruthfully alleged that she had given it to Ellen and that it was in Ellen's handbag. In fact this, according to Ellen, was not true, and no ticket was found in her bag. The applicant's allegations are also corroborated, to some extent, by Lawrence, who says that after the second race of the double had been run Ellen and the first respondent approached him while he was talking to the applicant, and both said that they had taken out a ticket on the double, that it had been successful and that the first respondent was going to cash the ticket and pay half the proceeds to the applicant.

Maggie Kgami, the first respondent, also filed an affidavit in support of the applicant's petition and says that she corroborates the facts contained therein. She goes on to say that she originally intended to defraud the applicant to the mutual benefit of herself and the second respondent, but that she has now changed her mind and wishes the ticket to be dealt with in accordance with the agreement between herself and Ellen. She says that she gave the ticket to the second respondent with the intention of defrauding the applicant, and she also says that he has got that ticket and that it is the ticket which he is now endeavouring to cash. On these papers a rule nisi was obtained, and thereafter affidavits were filed in opposition by James Nobela.

He says that he works at the Dunswart Iron & Steel Works at Benoni and that a certain Mr. Connellan also works there. He says that he and his brother are in the habit of attending race meetings and that he often asked Mr. Connellan for tips for the meetings which he attended. He says that on Friday, the 31st October, 1947, that is the day before the meeting at the Eastern Districts Sporting Club, he asked Mr. Connellan for a tip for the following day. He says he had already purchased a race card and he asked Mr. Connellan to mark...