Cheek v Cheek

• Jurisdiction: South Africa
• Judge: Beyers JA, De Villiers JA and De Wet AJA
• Judgment Date: 24 September 1935
• Citation: 1935 AD 336
• Court: Appellate Division

De Villiers, J.A.:

The parties were married in 1917. In 1934 the husband instituted action against his wife for divorce on the ground of adultery with one Sedley Miller in 1933 and 1934. The

De Villiers, J.A.

allegation of adultery was denied, and a claim in reconvention was brought by the wife for judicial separation on grounds which I shall examine in due course. The judgment of the trial court was for the defendant on the claim in convention; on the claim in reconvention the Court granted a decree of judicial separation. The husband brings this appeal against the whole of the judgment. Now on the claim in convention the trial Judge found definitely that there had been no adultery between the wife and Miller. In his judgment he deals first with the husband's witnesses, and he gives his reasons for rejecting the testimony of each of them seriatim. I must say that in some instances, and in some respects, the reasons are not, on the face of them, altogether convincing; as has been pointed out by Mr. Steven in his able argument. At the same time it must be borne in mind that the judgment was orally delivered immediately after the learned Judge had heard the evidence, which was long and detailed; and that it is evident that the reasons mentioned by him were not the only ones that induced him to reject the testimony of these witnesses. On the contrary there are other reasons which leap, as it were, to the eve. It must further be borne in mind that the evidence of the husband's witnesses, while it might prove indiscreet conduct on the wife's part, may not necessarily prove adultery; but I will not dwell on this aspect, for there is a much more important point which has to be borne in mind. That point is that not only did the trial Judge reject the evidence of the husband's witnesses, but he definitely believed and accepted the evidence of the wife and of Miller. "Both the wife and Miller," says the learned Judge, "gave evidence, and in a case like this a great deal must depend upon the demeanour of the defendant and of the alleged co-respondent in the box, particularly under cross examination. Neither of them was shaken at all, and I have, no hesitation in saying that I accept their evidence as true. I find therefore that the case for the plaintiff, as far as adultery is concerned, must fail. I accept the story of the defendant that there has been no adultery." Now it has very often been laid down in this Court, that in coming to a conclusion as to the credibility of witnesses, a Court of Appeal "must of necessity be greatly influenced by the opinion of the learned trial Judge. He sees the demeanour of the witnesses and can estimate their intelligence, position and character, in a way not open to the courts who deal

De Villiers, J.A.

with the later stages of the case"; and that when the question of credibility turns on manner and demeanour "the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses." (Vide e.g., Parkes v Parkes, 1921, A.D at p. 77; Rex v Dube, 1929, A.D at p. 49). The principle thus laid clown applies with especial...