Gates v Gates

• Jurisdiction: South Africa
• Judge: Stratford CJ, De Wet JA and Watermeyer JA
• Judgment Date: 28 October 1938
• Citation: 1939 AD 150
• Hearing Date: 13 October 1938
• Court: Appellate Division

Watermeyer, J.A.:

The plaintiff Frank Gates sued the first defendant Mary Gates in the Durban and Coast Local Division for a decree of divorce on the ground of her adultery with the second defendant Eric Cole. Mary Gates counterclaimed for a judicial separation on the ground of plaintiffs adultery with one Papa Padiachy and also on the ground of malicious desertion. The Court (HATHORN, J.) held that the defendant's adultery with Cole had been proved, and that the counter allegations of adultery and malicious desertion had not been proved.

On the claim in convention he accordingly granted a decree of divorce, and made an order for costs against Cole and on the claim

Watermeyer, J.A.

in reconvention he gave judgment for the defendant in reconvention (plaintiff). Against that decision Mrs. Gates now appeals.

In order to appreciate how matters stood between the parties at the time this case came into Court it is necessary to refer briefly to the past history of the troubles between them.

The parties, who are coloured people, were married in 1917 and there have been a number of children born of the marriage. As early as 1923 there was trouble between them, plaintiff accusing his wife of deserting him and she complaining to the magistrate that plaintiff was not supporting her. This trouble was, however, smoothed over and the parties lived together again until 1933 when they separated. They have lived apart ever since; the children residing with their mother and the plaintiff contributing to their support.

In 1936 the plaintiff sued the defendant for divorce on the ground of her adultery with a native and she made a counterclaim for judicial separation on the same grounds as are advanced by her in the present case.

Judgment in that case was absolution from the instance on the claim in convention and also on the claim in reconvention. That judgment was pronounced in September, 1936, a date which becomes of some importance in the present case.

Some two years later in January, 1938, plaintiff instituted this action, for divorce alleging that the defendant lived in adultery with Eric Cole at 33 Madras Road, Durban, from February, 1936, until September, 1936, and subsequently at 301 Chamberlain Road, Jacobi;, Durban. The plaintiffs evidence in support of the allegation that the defendants lived as man and wife at Chamberlain Road did not satisfy the learned Judge in the Court below and it is of minor importance in this case, but the evidence of the alleged co-habitation at 33 Madras Street is all important because the learned Judge accepted part of it and granted a decree of divorce on that part which he accepted.

The defendant's counsel contends that the learned Judge's finding on this issue was not justified, and consequently it will be necessary to submit the evidence to a critical examination.

But before that is done there are one or two points to be noticed.

Cole did not defend the action. He was served with the summone but he did not enter an...