Desai v Engar and Engar

• Jurisdiction: South Africa
• Judge: Steyn CJ, Rumpff JA, Botha JA, Williamson JA and Trollip AJA
• Judgment Date: 30 September 1966
• Citation: 1966 (4) SA 647 (A)
• Hearing Date: 20 September 1966
• Court: Appellate Division

G Trollip, A.J.A.:

This litigation concerns the custody of a daughter, now six years old, born of a putative marriage between the appellant and first respondent, whom I shall call 'the father' and 'the mother' respectively. Since her birth the child has stayed, and is still staying, with the second respondent (herein called 'the grandfather') H and his wife, who are the parents of the mother, at their home in Port Shepstone, Natal. The putative marriage was, at the father's instance, annulled on 29th May, 1963, by the Witwatersrand Local Division, which at the same time declared the child to be legitimate, but made no express order about its custody. Thereafter, the mother and the child continued to live with the grandparents. On 2nd September, 1963, however, the mother remarried and since then has been residing at Vereeniging, but, as stated above, the child with the father's consent remained with the grandparents in Port Shepstone. The father has also

Trollip AJA

remarried. He is still resident in Johannesburg, where he has at all material times been domiciled.

Trouble arose between the parties about the custody of and the father's A access to the child, in consequence of which the father launched the present proceedings in December, 1964, in the Witwatersrand Local Division by way of petition against the mother and grandfather. He submitted in his petition that

'by virtue of the afore-mentioned order of Court (annulling the marriage and declaring the child legitimate) he is the lawful guardian and custodian of the said minor child';

he also averred that it was in the child's best interests for him to get B immediate de facto custody of her, in support of which he alleged certain facts. The petition concluded by praying for orders (a) declaring that he 'be the custodian parent' of the child; (b) directing the grandfather or the mother or both of them to deliver the child into his care; (c), alternatively to (b), directing the deputy sheriff of the C relevant district to take the child from the mother or grandfather and deliver it into his care; (d) directing the mother and grandfather to pay the costs of the application.

Both the mother and grandfather filed answering affidavits on the merits opposing the application and praying that it be dismissed with costs.

D When the matter came before the late Mr. Justice VIEYRA, counsel for the mother and grandfather raised an objection or objections in limine, which were then argued and dealt with. The learned Judge's judgment thereon concluded:

'The preliminary point fails and the respondents must pay the costs in E connection therewith. The application may be set down for hearing on proper notice to the respondents.'

The mother and the grandfather then appealed against that decision to the full Bench of the Transvaal Provincial Division, which upheld the appeal with costs, that is, it sustained the preliminary objections. Thereafter, the father applied for leave to appeal to this Court, inter F alia, on the ground that VIEYRA, J.'s, decision was not appealable at all. That was the first time that point was raised. Leave to appeal was granted.

On the issue of appealability, the first question to be answered is, what was the precise nature of the preliminary objection or objections raised before VIEYRA, J.? Mr. Kentridge, who did not appear in either of G the lower Courts, contended for the father that two separate preliminary objections had been raised before VIEYRA, J.: (i) that the effect of the 1963 order legitimating the child was that the father ipso jure became its guardian and custodian, and that prayer (a) for the declaratory order was therefore unnecessary and fell away, leaving only prayers (b) H and (c); (ii) that as the mother, the grandfather, and the child were all beyond the territorial reach of the Court, it could not grant prayers (b) and (c) for delivery of the child to the father. It is clear that those two points were indeed argued before VIEYRA, J. In regard to (i), he decided in favour of the father that, as the legal effect of the Court's declaring the child legitimate was not clear, prayer (a) was meant to be a claim for an order declaring that the father was entitled, in law or on the present facts, to have the custody of the child, which the Court had jurisdiction to grant; in regard to (ii) he decided

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in favour of the mother and grandfather that...