COURT OF SWAZILAND
the matter between:
NYONGO MOTSA DEFENDANT
PLAINTIFF MS. Q. MABUZA
DEFENDANT MR. MDLULI
summons issued on 1st March 1999 plaintiff claimed the following:
of four heads of cattle valued at E7 500.00 being plaintiff's
property in the wrongful possession of defendant. ALTERNATIVELY:
of the sum of E7 500.00 being the value of the said heads of cattle.
and/or alternative relief.
claimisannexure"A"whichfully describes the four heads of
cattle. 1 red cow without horns
black bull with white dotted spots on the forehead
white and black dotted bull
1 and 2 of the particulars of claim are admitted by defendant. The
rest of the paragraphs are denied by defendant and plaintiff is put
plaintiff on whom lies the onus of proving his case on a balance of
probabilities went into the witness stand and gave evidence.
was his evidence that on the 4th January 1995 he drove his herd of
cattle to the dipping tank. He and others of the area i.e. Diamond
Dipping tank had to connect some water pump in order to get water
into the dipping tank. A spanner was necessary to get the water pump
working. Plaintiff was sent to go and see if he could" obtain
the spanner. It was his evidence that as he walked he noticed four
men driving his cattle. One of these men wore a camouflage army
uniform. The man in the army uniform suddenly raised a gun he was
carrying and started pointing it at him and firing. Plaintiff stated
he fell to the ground when a second shot was fired. He got up and a
third shot was fired. He enquired what the problem was but he was not
favoured with any answer. Plaintiff said he then crawled on his knees
and beckoned for his companion who came and he explained to them what
told the court that the man he alleges fired at him is the defendant.
Finally when Plaintiff stood face to face with the defendant he asked
again what the matter was as defendant swore at him by referring to a
woman's private part. He also said if he wanted the woman's private
part he must stop talking. Plaintiff then decided to keep quiet. They
then proceeded to the veterinary assistant and in the presence of the
veterinary assistant, defendant claimed that one of
beasts was amongst plaintiffs. The beast defendant claimed was his he
had exchanged it with a farm owner who gave him a female beast for an
ox. This particular female was dark brown and the name of the man
with whom the exchange was done is Sigi Dlamini. When Sigi was
confronted, he denied that the beast he had was the one he exchanged.
told the court that he had the beast in his possession since the 4th
October 1995 and had regularly dipped it at Diamond Dipping tank. It
was his evidence that all the beasts were in his register. Plaintiff
said defendant was then, and there taking possession into his
possession eight from his herd. Plaintiff said the veterinary
assistant protested to no avail. It was plaintiff's evidence that
defendant threatened to kill him if he resisted that his eight cattle
be taken. The veterinary assistant asked defendant if he had a stock
removal permit. In response, defendant told the veterinary assistant
that when his beast went missing no stock removal permit was used.
Plaintiff said at that stage defendant said plaintiff should release
the beast and its calf and two more beasts. Plaintiff said he then
instructed his herdboy to do as defendant was demanding. Plaintiff
described the beasts taken by defendant as follows:
One red cow with white hooves and its calf. He said the red cow had a
white adder.The calf was red like the mother. It was a male calf.
The other beasts taken by defendant was a bullock with a white spot
on the forehead and white tail.
The third was also a bullock with white and black spots.
said he remained speaking to the veterinary assistant and as he was
speaking defendant came back and asked plaintiff if he was agreeable
that the beasts he had taken be registered in his defendant's
register. Plaintiff said he could not resist as he feared defendant
who was still armed.Thereafter defendant took the beasts
to date. Plaintiff said he then went and reported the incident to the
police. He has not heard from the police since. He gave the value of
his beasts taken by defendant as E5 700.00. The amount he broke down
two bullocks he valued at El 500.00; the value of the female E1
asked for the return of the beasts or alternatively payment of the E5
700.00 and also asked for the costs of the suit.
was cross-examined at length by Mr. Mdluli on behalf of the
defendant. The cross-examination was particularly aimed at denying
that defendant ever fired at plaintiff but only fired in the air and
that this firing in the air had nothing to do with frightening
plaintiff but merely aimed at calling those in his company that he
had spotted his missing beast.
also admitted that when Sigi Dlamini denied that it was not the beast
he had exchanged with plaintiff, he did not challenge Sigi Dlamini.
Plaintiff denied that he voluntarily agreed that defendant take
possession of the beasts.
denied that he and others had gone to defendant's homestead to
apologise for having stolen defendant's beast. Plaintiff also called
Sipikili Nkambule. His evidence could not take the case any further
in so far as the events of the day in question are concerned. He was
on leave and the only relevant part of his evidence is that four
beasts had been deregistered from plaintiff's dipping register when
he returned from leave. He also confirmed that the cow in question
had come to be registered into plaintiff's name through a system of
bartering.He said plaintiff gave away an ox for a female beast.
Mdluli did not cross-examine the witness.
court asked him a few questions regarding deregistering of the beasts
by different owners thereof. It was this witness' evidence that where
the owners were not in agreement a transfer would not be feasible
also called Elphas Dlamini. In his evidence he deposed to hearing two
gunshots on the day in question and shortly thereafter he heard a
third gunshot and a blowing of a whistle. He and others spoke to
plaintiff and as plaintiff was speaking defendant came and coked his
gun and plaintiff had to ask defendant what the problem was.
Thereupon defendant said if plaintiff did not want to handle the
"woman's private part" by hand he had better keep quiet.
This witness also testified to the difficulty of allowing the beasts
to be transferred in the manner defendant was insisting on. He saw
that defendant also had the gun holding it in a shooting position
until the plaintiff's cattle were taken away.
cross-examination this witness said defendant was not pointing the
gun towards plaintiff. He said, however he saw defendant coke his
gun. He formed the opinion that the reason why plaintiff allowed his
cattle to be taken away was because he feared the gun defendant was
carrying.He denied that he had colluded the version of his story.
Mabuza re-examined the witness and the witness said he had seen
defendant taking a bullet from a belt on his waist and; further no
removal permits were produced at the dipping tank. He said the
veterinary assistant did not complete forms in respect of the removal
of the beasts.
rested his case.
called Themba Dlamini. During 1995 he relieved as veterinary
assistant at the Diamond Dipping tank.He knows both
and defendant. On 4th October 1995 both plaintiff and defendant were
at the dipping tank. Defendant was looking for beasts he alleged went
missing. He left the dipping tank and came back driving some cattle
and we wanted to know whose cattle were they. He claimed amongst the
herd of cattle one was his - the one he was looking for. Plaintiff
said the beast was his and that he had exchanged it with another
beast from Sigi. Defendant insisted that the beast was his missing
beast. When Sigi was confronted about the beast he disputed that it
was the one he had exchanged with plaintiff.
insisted the beast was his and took it with its calf from
plaintiff's herd of cattle. It was Themba Dlamini's evidence that
defendant said he also missed an ox and there and then also took an
ox from plaintiff's herd. Defendant then said he was not going to lay
any charges against plaintiff but would punish him by taking other
beasts from plaintiff's herd. He said he was doing this because
plaintiff had put him into an unnecessary inconvenience by stealing
his beasts. Thereupon defendant selected another bullock from
Dlamini testified that he then informed defendant that he could not
do that as the beasts he wanted to take had not been deregistered
from plaintiff's name into his name. Themba Dlamini then asked
plaintiff if he was handing over the said beasts to defendant,
according to this witness, plaintiff agreed and the witness asked
further if he the witness should effect deregistration of the beasts
from plaintiff's name into that of defendant. Plaintiff again
answered in the affirmative.
witness then instructed defendant to go and get the necessary stock
removal permit before taking the beasts with him. The defendant
thereupon said he would drive the beasts without the necessary
stockpermitasthatisthe method usedwhenthey
from his herd. The witness said he told defendant to go to his office
to get the necessary documents i.e. the removal permit. According to
the witness that was done and according to the witness the plaintiff
was not in a state of shock and that defendant and plaintiff spoke
normal and no threats were made by defendant. He said he observed
that defendant was carrying a gun but was unable to say in what
position he carried the gun. At no stage did he see defendant point
the gun at plaintiff. He had earlier heard a gunshot at the bush. It
was further his evidence that he cannot allow any transfer of beasts
from a person to another if the parties do not agree first to such a
this stage plaintiff's attorney asked for an amendment to the prayer
in the alternative to read E5,500.00 instead of the E7,500.00. The
application was not opposed and the court granted it. On behalf of
the plaintiff Ms. Mabuza cross-examined the witness relating to his
period of service as a veterinary assistant.
emerged during the cross-examination that the witness was relieving
the substantive veterinary assistant for three weeks. He showed the
register where he effected the transfer of the beasts to defendant's
name. He admitted that what he did in his register on the 4th October
1995 was only temporary and this was not in accordance with the laid
down proper procedure. He did this temporary arrangement because
defendant demanded to take the cattle there and then. He admitted
that defendant flouted the rules by taking the cattle in the manner
himself gave evidence. He said he was employed as a police officer by
the Swaziland National Court and stationed at Nhlangano.
said during 1991 he was given two beasts as a fine by someone who had
deflowered his daughter. He said these beasts disappeared" in
1992. In 1995 he went to the Diamond Dipping tank after receiving
information about his missing beasts. He went to the dipping tank in
the company of three boys. He was also carrying a gun. He came upon
the beasts across the Mkhondvo River not far from plaintiff's
homestead. The beasts he was looking for were amongst the herd of the
plaintiff. This was a cow. He fired a shot in the air to call the
boys and also blew a whistle. The boys came and they drove the entire
herd towards the dipping tank. He ascertained that the beasts
belonged to the plaintiff. He asked plaintiff where he got the cow
from and plaintiff said he was given the cow by one Sigi Dlamini.
Sigi Dlamini was also at the dipping tank. Sigi denied that the beast
was the one he gave the plaintiff. Defendant then told plaintiff he
was going to take the beast with him.
testified that plaintiff gave the beast in question to him and
another beast which had disappeared with it from his herd. They
approached the veterinary assistant and in the presence of the
veterinary assistant, plaintiff gave defendant altogether four
beasts. The veterinary assistant witnessed all this and recorded it
in his books.
to him plaintiff gave him altogether four beasts and he took them
admits that he was carrying a gun and it faced upwards as he carried
it. He admits too that when he drove the beasts away he did not
obtain the necessary documents. He denied ever firing three shots and
denied that he forced plaintiff to release his beasts to him.
was his evidence further that on a Thursday morning plaintiff paid
him a visit in the company of others and he named them. He says
had come to apologise on behalf of plaintiff for having stolen the
states that he advised them to come on another day and he and others
will then listen to them. They came back on a Saturday in the company
of others and he gives their names. They again repeated that they had
come to apologise on behalf of the plaintiff for having committed
theft. According to defendant the apology was accepted. He stated
that he finally obtained a removal permit for the beasts.
cross-examination he outlined the procedures followed where a person
who owes another a beast/s and confirmed that the procedure to be
followed is a legal requirement before anyone claiming beasts can
take possession of such beasts. He admitted that it was unlawful to
remove cattle without a removal permit and that it was against the
said he had reported the loss of his beasts to the police and that
they had said he must go and search for them. He said after the
discovery that one of his cattle is lost he went back to the police
and reported that he had found one of his missing beasts. He said he
told them he had removed the beast/ s and that he had done so without
a removal permit. He further said he told the police that the
plaintiff did consent that he removes the cattle.
re-examination he said the name of the policeman he contacted was
by the court why he took other beasts belonging to the plaintiff and
his answer was that he did that because when he missed his beast it
was with others and that plaintiff consented to the taking of the
DW2 defendant called Patrick Hlangabeza Dlamini. He is a resident and
a farmer at Hlatikulu. He said plaintiff had alleged that he had
obtained the beasts from him and he said this was untrue.
said defendant then took the beasts away. He said the beasts which
defendant took from the herd of plaintiff was a hornless one red in
colour with a white colour on its belly. He denied that he had
bartered the beasts, he said defendant took away. He said the one he
bartered was red in colour and had horns.
cross-examination he told the court that he had never been charged
with stock theft. He said he had plus minus 45 beasts on the farm and
was in the business of bartering for plus minus 20 years.
said he cannot remember all the beasts he bartered in the past but he
remembers that he had not bartered the one in question' because it
was a recent transaction. By recent he meant plus minus 5 years he
said. Before this recent case of bartering he had last bartered
beasts with plaintiff plus minus 15 years ago. He said he had sisaed
six herd of cattle with plaintiff less than 15 years ago but more
than 5 years ago.
also called one Florah Motsa as PW3, the wife of defendant. She also
knew plaintiff. She had last seen plaintiff when he and others had
come to apologise for beasts belonging to her husband which her
husband lost. She confirmed her husband's evidence about the names of
the people who accompanied plaintiff when he came to apologise.
cross-examination by Ms. Mabuza she said there were two beasts paid
by the family of the one who deflowered her daughter. She said this
happened in the winter of 1991 and the beasts went missing in winter
described the beast as being both dark brown.' One had horns facing
downwards and the other was a male also with horns.
by the court if the beasts brought by her husband are the one, she
said the female beast had horns which had grown longer than when it
went missing. The male one had no horns at all when it disappeared.
The defendant then rested its case.
two counsel handed from the bar their respective heads of argument.
Having read and considered the heads of argument it remains for me to
decide very crucial legal issues arising from the evidence as whole.
is common cause that the witness Agrippa Motsa, the defendant
received information about where he would possible trace his missing
beasts. The beasts in question was properly registered in the name of
the plaintiff. For all intents and purposes the beast belonged to the
plaintiff. The plaintiff has given evidence how he obtained the
beast. He bartered it in exchange for certain male beasts from DW2
Patrick Hlangaluza Dlamini popularly known as "Gigi".
Although DW2 denied in evidence before court that the beast was the
one he had exchanged with plaintiff the probability cannot be
excluded that he could very well be mistaken when he says it was not
the beast. He admitted in evidence that he is in the business of
exchanging beasts with other people and that he has been doing so for
plus minus 15 years. In the court's view it is possible therefore
that he could have exchanged the beast in question with plaintiff.
DW2 would in the circumstances be apprehensive and fell it would be
safer for him to distance himself from having bartered the beast in
approach by this court is further reinforced by the fact that
defendant's wife who gave evidence as DW3 Florah Motsa. DW3 gave
totally different description of the beast paid by the person who had
deflowered defendant's daughter. The evidence speaks for itself.
factor which militates against finding for defendant by this Court is
the fact that he handled the matter in a very high handed and, I
would say in an unlawful manner, Here, I mean the way he went about
taking possession of his lost beasts and further fining plaintiff for
according to him, having stolen his beasts by taking further beasts
belonging to the plaintiff. Defendant did all this without the
necessary documentation for stock removal. Defendant is now asking
this court to endorse his unlawful actions. This, the court is not
disposed to do.
court is also not convinced that plaintiff will, of his own accord
consent to the taking of the beat defendant alleges was stolen from
him and that plaintiff would further consent that he be fined further
beasts and even go to the extent of asking a host of witnesses to
accompany him to defendant's homestead to apologise and thereafter
immediately decides to institute proceedings to recover the said
beasts he willingly volunteered to be taken by defendant. This story
of an apology by the plaintiff to defendant the court rejects.
follows that the court finds that the plaintiff has proved its case
on a balance of probabilities and grants the prayers in his favour.
The prayers are granted as amended.