Drummond v Drummond

• Jurisdiction: South Africa
• Judge: Rumpff CJ, Muller JA, Kotzé JA, Trengove AJA and Hoexter AJA
• Judgment Date: 29 September 1978
• Citation: 1979 (1) SA 161 (A)
• Hearing Date: 05 September 1978
• Court: Appellate Division

B Trengove AJA:

The appellant and the respondent were formerly married to each other. On 5 March 1974 the respondent obtained a decree of divorce against the appellant, in the Witwatersrand Local Division, and at the same time the Court made an agreement entered into between the parties an order of Court. In terms of the agreement the custody of the minor child C of the marrriage, a daughter, Karen, was awarded to the appellant, and the respondent was ordered to pay maintenance for her at the rate of R75 per month. Clause 3 of the agreement provides as follows:

"(a)

The plaintiff shall pay maintenance in respect of the defendant at the rate of R125 per month until her death or remarriage.

(b)

It is agreed that the plaintiff's obligation in terms of sub-clause (a) above shall cease should the plaintiff prove that the defendant D is living as man and wife with a third person o n a permanent basis."

This appeal arises from an application, which was brought by the respondent, for an order in terms of s 10 (1) of the Matrimonial Affairs Act 37 of 1953 rescinding para 3 (a) of the above agreement on the E ground that the appellant and a certain Hubert Bosch were living together as man and wife on a permanent basis. The matter came before VAN WYK DE VRIES J in the Witwatersrand Local Division, and he dismissed the application. On appeal, the Full Court of the Transvaal Division reversed F that decision and granted the respondent the relief sought. From this decision an appeal has now been brought to this Court, the appellant having been granted leave by the Court a quo.

In view of the issues that were raised on behalf of the appellant it will be convenient to refer at the outset to the history of these proceedings. The respondent's application was filed with the Registrar on 3 December 1974. In the founding affidavit, he alleged that the appellant and the said Bosch were living together as man and wife in appellant's flat at 204 G Riepen Hall, 16 Argyle Avenue, Sandton, and that they had been living together as such since at least March 1974. The factual grounds on which the respondent relied in support of this allegation were set out in his affidavit. He claimed that the appellant's conduct constituted good cause for the rescission of the maintenance order within the meaning of s 10 (1) H of the Act. The appellant opposed the application and in her answering affidavit, which was sworn to on 11 February 1975, she emphatically denied the allegation made against her. She admitted, however, that Bosch was staying in the flat but she said that he was doing so as a boarder and that he was paying her R130 per month for his board and lodging. She explained that she had taken on a lodger in order to supplement her income as she was unable to make ends meet. Bosch, in a supporting affidavit, stated tersely that he had read the appellant's affidavit and that he confirmed the allegations insofar as they related to him. In the replying affidavit,

Trengove AJA

which was filed on 20 February 1975, the respondent joined issue with the appellant and persisted in his allegation that she and Bosch were cohabiting.

A When the matter came before the Court for hearing on 21 May 1975 the parties were agreed that the issues of fact, on the affidavits, could not be decided without the aid of viva voce evidence. By consent, the Court then granted an order referring the matter for the hearing of oral evidence under Rule 6 (5) (g) of the Rules of Court, in respect of the following issues, namely

B "whether the applicant's obligation to pay maintenance to the respondent at the rate of R125 per month, in terms of an agreement made an order of Court at the time of the divorce between the parties, has ceased by virtue of the fact that the respondent is living as man and wife with a third party on a permanent basis,"

alternatively,

C "whether the applicant is entitled to an order reducing or increasing the maintenance payable by him to the respondent in terms of the said order of Court."

D It was also stipulated in the order that, if either of the parties intended calling any witness who had not already made an affidavit in the proceedings, an affidavit from such witness should be served on the other party at least 10 days before the hearing.

The application eventually came before VAN WYK DE VRIES J for the hearing E of oral evidence on 15 November 1976. At the commencement of the hearing, counsel for the appellant informed the Court that he had been advised that the respondent wished to lead evidence - including that of certain witnesses who had not made affidavits - of facts concerning the relationship between the appellant and Bosch, which had arisen since the initiation of the proceedings and, indeed, even after the reference for F the hearing of oral evidence, on 21 May 1975. He objected to the leading of the proposed evidence on the grounds that it went beyond the scope of the inquiry, as defined in the order of Court, and that it was, therefore, not receivable. This objection was sustained. The learned Judge ruled against the admissibility of the proposed evidence but, as he subsequently intimated in his judgment, the ruling was not applied rigidly. That was G the position as far as the evidence of the respondent and Bosch was concerned. They were, in fact, the only witnesses to testify on the disputed facts. The learned Judge allowed the respondent to give evidence on a number of matters relating to the period subsequent to the initiation of the proceedings, and he allowed Bosch to be cross-examined extensively H on his relationship with the appellant during that period. The appellant elected not to testify. Having heard the evidence VAN WYK DE VRIES J held that the respondent had failed to discharge the onus resting on him. He came to this conclusion primarily because Bosch, who impressed him as an "open and frank witness", denied that he and the appellant were living together as man and wife. The learned Judge placed some reliance on the allegations in the appellant's affidavit despite the fact...