Daniels v Daniels; MacKay v MacKay

• Jurisdiction: South Africa
• Judge: Schreiner JA, Hoexter JA, Steyn JA, Beyers JA and Ogilvie Thompson AJA
• Judgment Date: 13 December 1957
• Citation: 1958 (1) SA 513 (A)
• Hearing Date: 26 November 1957
• Court: Appellate Division

Schreiner, J.A.:

These two appeals raise the same point and were heard together. There was unfortunately no appearance for the respondents, but H the question to be decided was the subject of a fair and helpful argument by counsel for the appellants and in view of the careful review of the authorities in Zelie v Zelie, 1944 CPD 209, from which decision the present proceedings are practically appeals, there is no reason to suppose that any relevant consideration which might have supported the judgments under appeal has been lost sight of.

Schreiner JA

The appellant Daniels applied to a Judge of the Cape Provincial Division for leave to sue his wife by edictal citation for restitution of conjugal rights, failing which a decree of divorce. Leave was refused and an appeal to the full Bench of the Provincial Division was dismissed, but leave was granted to appeal to this Court.

A The petition states that the appellant and his wife were married on the 23rd October 1924, that his wife deserted him in 1928 and again, finally in 1930, that since then he has made every effort to find her but has not succeeded in doing so, that during the years 1938 to 1947 he committed adultery with a certain woman, three children, still living, being born of their intimacy, and that since 1947 he has not committed B adultery with the woman in question or any other person. It appears that the appellant has been supporting the children and that he is instituting the present proceedings so that, if a divorce is granted, he may legitimate the children by marrying their mother.

C The appellant's application was refused in the first instance, and his appeal to the full Bench was dismissed, because the Judges of the Cape Provincial Division felt obliged to follow the case of Zelie v Zelie in holding that, in a case where a spouse alleging malicious desertion but not adultery has himself or herself committed adultery, there is no discretion in the Court to condone or overlook the plaintiff's matrimonial offence and no relief can accordingly be granted. In giving D the judgment of the full bench of the Provincial Division on appeal, NEWTON THOMPSON, J., expressed the personal opinion that if he were the trial Judge he would not be disposed, on the facts alleged, to condone the appellant's adultery, but that expression of opinion was not necessary for the Court's decision. It is sufficient for the purposes of the appeal to this Court to say that, if the trial Court has a E discretion to grant relief to a plaintiff spouse suing for restitution of conjugal rights, even where he or she has committed adultery and the defendant spouse has not been shown to have done so, the facts alleged in the petition would not as a matter of law preclude the trial Court from making a restitution order.

F The case of MacKay is an appeal from a judgment of the East London Circuit Local Division dismissing the plaintiff wife's claim for restitution of conjugal rights. The defendant was in default. At the trial the plaintiff admitted that after the defendant deserted her in 1950 she lived with another man from 1951 to 1954, and that they had three children. During the years between 1954 and the trial the G plaintiff had not lived with the man in question but, if as the result of the proceedings she were divorced from the defendant, it was her intention to marry the man. DE VILLIERS, J.P., indicated that he would have been disposed to exercise any discretion he might have in the plaintiff's favour but, as he was bound by Zelie v Zelie and as the circumstances did not bring the case within any of the exceptions H recognised by that case, he was obliged to dismiss the plaintiff's claim.

Until the year 1944 the Courts of South Africa had for at least a hundred years proceeded on the practically unchallenged basis that a plaintiff in matrimonial proceedings who had been guilty of adultery was liable to be denied relief, but that, according to its view of the circumstances, the Court might exercise a discretion, despite the plaintiff's

Schreiner JA

misconduct, to make an order against the defendant. Between forty and fifty reported cases were cited to us in which during that period such a discretion was exercised in the plaintiff's favour or at least recognised as existing even when relief was denied him; and there were doubtless many unreported cases in which the same approach was used.

A In one case, it is true, Isaac Johnson v Ellen Johnson, 3 N.L.R. 39, CONNOR, C.J., presiding over the full Bench of Natal, came to the conclusion that a plaintiff who had committed adultery could not obtain either a decree of divorce or a restitution order against his wife. In reaching this conclusion CONNOR, C.J., applied what had been said by Brouwer, Voet and Noodt, who, relying upon passages in the Digest, used B the language of the compensation or set off of injuries in support of their views. In concurring in the rejection of the plaintiff's claim CADIZ, J., said that the plaintiff was not entitled to an order because his hands were dirty and because perhaps his own adultery had been the cause of that of the defendant. This case seems to have been the only C one during the century before Zelie v Zelie in which the principle of compensation was made the basis of a judgment which may be said to have ruled out any discretion in the Court.

In Zelie v Zelie the full Court of the Cape Provincial Division came to the conclusion that where a plaintiff spouse had been guilty of adultery the Roman-Dutch law dealt with the matter solely on the lines of D compensation, and the Court held that this line was still the proper one to be followed in South Africa. This view, so it was held, involved the consequence that the Court had no general discretion to overlook the plaintiff's fault and, if thought right, to grant him relief. In the judgment of FAGAN, J., the Roman-Dutch authorities and the South African E cases were extensively investigated and the following conclusions were reached (the masculine is used to include the feminine) -

The general rule is that a plaintiff's adultery debars him from relief and there is no general discretion in the Court to grant the plaintiff relief in the light of the circumstances of the case. Moreover, for the purposes of compensation, it was held, all cases of adultery are paria F crimina, no distinction being drawn because of mitigating or aggravating circumstances. Certain cases, however, it was considered, require special treatment.

These may be grouped under six classes, lettered (a) to (f): -

(a)

Where the defendant has condoned the plaintiff's adultery;

(b)

Where the plaintiff's adultery was committed when he was under some G mistaken belief such as that the defendant was dead or that divorce proceedings had ended the marriage;

In these two cases there is no bar to the plaintiff's claim.

(c)

here both have committed adultery but the plaintiff has desisted while the defendant has persisted;

(d)

Where both have ceased to commit adultery and the defendant has, after such cessation, refused to return to the plaintiff. H

In these two cases the Court, it was held, is obliged to grant an order, in (c) of divorce and in (d) of restitution of conjugal rights.

(e)

Where the plaintiff has committed adultery and the defendant has only committed malicious desertion;

(f)

Where the plaintiff is still living in adultery at the time of the trial.

Schreiner JA

In these two cases it was held that the Court has no power to grant a divorce or restitution order.

A few observations upon the nature and foundations of these rules must be made.

A Rules (a) and (b) are not in dispute; even under the uncompromising statement of the law contained in the judgment of CONNOR, C.J., in Isaac Johnson v Ellen Johnson, supra, they would necessarily be recognised.

Rules (c) and (d) are a departure from the position as laid down by B CONNOR, C.J. The departure was justified by FAGAN, J., (pp. 238 to 239) on the ground that CONNOR, C.J., had not referred to a passage in Kersteman's Woordeboek, at p. 108, where the author says that the guilty plaintiff may succeed where there is compensatio, i.e. where both have committed adultery at the same time. The passage continuous,

'Dog waar omtrent deeze uitzondering plaats heeft, dat wanneer een der echtgenoten de novo of naderhand wederom adulterium bedreef, de compensatie als dan niet meer kan worden geappliceert, overmits dat die C 't laatste aan overspel zig schuldig gemaakt heeft, geen actie op de echtgenoot die het eerst gevallen is meer overig zoude hebben, waar meede hy kan composeeren.'

Kersteman quotes as his authority Cos, Community of Property Cap. 7 Num. 11. The passage to which reference was made reads,

'Maar by aldien ene der egt-genoten, na dat hy de andere, welk eerst overspel hadde bedreven, de faute vergeven hebbende, tot het doen van overspel, vervalt, sal de compensatie geen plaats hebben, overmits die D het laatste daaraan schuldig geworden is, geen actie op zyn egt-genoot, welke eerst gevallen is geweest, meer overig heeft, waar mede hy zoude kunnen compenseren.'

It seems to me that Cos was dealing with the case where the plaintiff, having committed adultery first, had been forgiven by the defendant; this would not prevent the plaintiff from basing an action on the subsequent adultery of the defendant. If I am right in this view E Kersteman seems to have used the special case of condonation as the basis for a general principle that the one of the spouses who has persisted longest in adultery cannot set up the other spouse's earlier adultery as a defence. On the foundation, in turn, of Kersteman's proposition there was erected in Zelie v Zelie a rule that a plaintiff F must be granted a decree of divorce under (c), provided that he has desisted for such a period before...