“Is the parrot in court today, and does it wish to say anything?”

Deputy Judge President Vincent Ratshibvumo quipped as he opened proceedings in the civil appellate division of the Mpumalanga High Court on Friday. The fate of a much-contested African grey parrot was once again under judicial scrutiny in a long-running battle over its custody reports Lowvelder.

The dispute centres around attorney Obert Ntuli and Mbombela resident Crystle Pachos, each claiming ownership of the same parrot, with Ntuli calling it Zippy and Pachos, Zazu.

What began in the Small Claims Court in July 2023 escalated to the Mbombela Magistrate’s Court, and now rests with the High Court of Appeal.

Zazu or Zippy: Where the saga began

The saga began when both parties reported their African greys missing. Pachos’ parrot, Zazu, disappeared in early 2020. In May 2021, she was contacted by a woman who believed Zazu had ended up in her father’s care.

Shortly after Pachos celebrated Zazu’s return and publicly announced her joyous moment on Facebook. Ntuli’s daughter then sent Pachos a WhatsApp message, claiming the bird they called Zippy was in fact theirs.

What followed was a lengthy and increasingly hostile exchange via WhatsApp, continuing until Ntuli approached the Small Claims Court.

The court battle so far:

• July 2023: The Small Claims Court ruled that the issue was too complex for its jurisdiction. Ntuli then took the matter to the magistrate’s court.
• The case was heard in October 2024, unopposed due to late filing by Pachos.
• In March, Magistrate N Mthetwa ruled in Ntuli’s favour and ordered the bird to be handed over to him. The ruling noted that it was not within its jurisdiction to decide actual ownership, which would need to be determined by a higher court.
• In a desperate attempt not to lose Zazu, Pachos launched an urgent application to the Mpumalanga High Court on July 22, to prevent Zazu’s handover. The court, however, ruled that urgency could not be established. As a result, the parrot was surrendered to Ntuli.

Rei vindicatio: Asserting rightful ownership

Friday’s appeal hearing included a condonation application for non-compliance with the court’s security payment requirements. The court acknowledged it had been included in the papers.

During the proceedings before a full bench, including judges Ratshibvumo and Nicole Mayet, both parties were asked to address the legal principles of rei vindicatio – a Roman law remedy used by individuals asserting rightful ownership of a specific item unlawfully held by someone else.

Ratshibvumo remarked, “A rose by any other name still smells as sweet,” suggesting that if the case is indeed rei vindicatio, then the court must address whether the magistrate’s court had the jurisdiction to issue its previous ruling, and whether the Plascon-Evans principle, used in motion proceedings involving factual disputes, had been correctly applied.

The principle ensures fairness in civil application proceedings by protecting the rights of the party opposing the application.

Advocate Lindumusa Hopewell Makamu, representing Pachos, argued that the magistrate’s court was not authorised to consider rei vindicatio in application proceedings. He contended that the matter should have been brought before a higher court from the outset.

In their Notice of Appeal, Pachos’ legal team submitted that the requirements of rei vindicatio in the matter would have had to include proof of ownership by Ntuli, the bird’s existence, and unlawful possession by Pachos, which had not been established.

By the magistrate’s own admission that ownership was not decided, they argued that Ntuli failed to prove legal entitlement, any injury suffered, or a lack of alternative remedies for Pachos.

Representing Ntuli, Jan Coetzee countered that if application proceedings are not sanctioned by law, then action proceedings should have been pursued.

He stated, “They missed the first bite of the cherry,” by not opposing the nature of the magistrate’s court motion proceedings when they had the opportunity. He further noted procedural shortcomings, including the failed urgent application.

Coetzee stressed that the condonation application was defective, lacking the necessary explanation for non-compliance with court rules regarding security.

Makamu argued that the onus was on the magistrate’s court to recognise its jurisdictional limits, and it was not Pachos’ responsibility to challenge the procedural form at that stage.

The parrot case has grabbed the attention of national media, and the court proceedings were filmed by Carte Blanche, which will air an insert on the saga within the next few weeks.

Judgment has been reserved.

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