Goodrich v Botha and Others

• Jurisdiction: South Africa
• Judge: Schreiner JA, Van Den Heever JA, Fagan JA
• Judgment Date: 30 March 1954
• Citation: 1954 (2) SA 540 (A)
• Court: Appellate Division

H Schreiner, J.A.:

The first John Bartlet Goodrich came from England in 1922 and in 1924 bought the farm Klipspruit, near Potgietersrust. In 1927 he married a Miss Smit and their only child, the second John Bartlet Goodrich was born in 1932. In the same year the mother died. Her sister, the appellant, had come to live on the farm in 1930

Schreiner JA

and in 1937 she married the first John Bartlet Goodrich, her sister's widower, who himself died in 1948, leaving Klipspruit to his son, with a life usufruct in favour of the appellant. The second John Bartlet Goodrich, who had been brought up by his stepmother, the appellant, in 1951 married Anna Elizabeth Botha and the third John Bartlet Goodrich A was born to them on the 2nd March, 1952. On the 23rd May, 1952, the baby's parents were both killed in a flying accident while they were on their way from Potgietersrust to Lourenco Marques. The baby had been left in the care of the appellant, his great-aunt and stepgrandmother, though the arrangement was that the first respondents, his maternal grandparents, who farmed in the neighbourhood, were to sleep at B Klipspruit during the absence of the parents. (I shall in this judgment refer to the first respondents as the respondents.) This arrangement fell away when the news of the disaster came to Potgietersrust. The baby remained with the appellant until the 2nd June, 1952, when the respondents came to Klipspruit. A controversy arose as to C the custody of the baby and an attorney, one Peens, who was present, suggested that, pending more permanent arrangements, the appellant and the respondents should take care of it in turns of a fortnight each. This was acquiesced in and the baby was taken to the farm of the respondents, the appellant going with them and then returning to Klipspruit. The appellant, whatever impression her conduct may have D created, was reluctant to allow the baby to remain with the respondents and a few days later consulted certain firms of attorneys, with the result that an urgent application was made to the Supreme Court on the 17th June, 1952. This was heard by CLAASSEN, A.J., who granted, ex parte, a mandatory order for the return of the baby to the appellant and also issued a rule nisi, which was subsquently amended, and in its E amended form called upon the respondents to show cause why the appellant should not be given the custody of the baby. An objection to the confirmation of the rule on the ground that the Court had no jurisdiction, the matter being one for the Master under section 76 of Act 24 of 1913, was overruled by ROPER, J., on the 21st August 1952. The F learned Judge made an order discharging the rule nisi, appointing two advocates, Messrs. Theron and Moll, as curators ad litem to the minor, referring the matter to trial, the petition and affidavits to stand as pleadings, reserving the costs of the objection for decision at the trial and directing that the trial should not take place until the appointment of a tutor dative, who was to be joined as a party. On the G 18th October, 1952, the first respondent Mr. Botha was appointed tutor dative by the Master, and in that capacity he was duly joined in the proceedings. The two curators ad litem reported to the Court on the 10th March, 1953; Mr. Theron was later discharged on his own application, but the remaining curator, Mr. Moll, appeared at the trial and has also appeared on appeal.

H The trial took place before RUMPFF, J., who on the 21st September, 1953, made an order awarding the custody to the appellant until the baby reached the age of two years and thereafter to the respondents with reasonable access to the appellant. This access was defined to include the right to have the child, after it reached the age of four years, for one long and one short school holiday per year for as long as the

Schreiner JA

appellant should reside at Klipspruit, provided that a certain native woman and her coloured child should not then be residing on Klipspruit or any adjoining farm. The parties were ordered to pay their own costs, the costs of the curators ad litem, however, being payable out of the estate of the child. It is from this judgment that the appellant appeals.

A At the commencement of the argument before us two applications were made, one on behalf of the respondents and the other on behalf of the appellant. Both were dismissed with costs, the reasons to be given later. I proceed at once to state those reasons.

The respondents' application was for condonation of their failure to B note, within the time required by the Rules of this Court, a cross-appeal against that portion of RUMPFF, J.'s judgment which ordered the parties to pay their own costs. An initial difficulty in the way of granting the application is created by sec. 3 (b) of Act 1 of 1911 (The Appellate Division Further Jurisdiction Act), which provides that

C 'No judgment or order made by consent, or as to costs only which by law are left to the discretion of the Court, and no interlocutory order, shall be subject to appeal save by leave of the Court or Judge making the order.'

No leave to appeal against the order for costs having been obtained from RUMPFF, J., this Court would not have jurisdiction to entertain an appeal brought only against his order for costs. It was argued on behalf D of the respondents, however, that a cross-appeal stands on a different footing. In support of this submission it was contended that the only reason for requiring the leave of the Court or Judge making the order is to restrict appeals in matters which generally are of subsidiary importance and that this consideration falls away where there is already an appeal before the Court. This argument could not succeed. It may be E that other considerations also influenced the Legislature in enacting the provision, such as the discretionary factor mentioned therein, though that would not apply to the other cases in which the leave of the Court a quo is also required. However that may be, there is no room for interpreting the provision, in the light of a reason that may have F actuated the Legislature, so as to exclude from its operation appeals by way of cross-appeal. Neither the South Africa Act nor Act 1 of 1911 differentiates between appeals and cross-appeals. A cross-appeal is, for present purposes, simply an appeal which is conveniently tacked on to another appeal. The provision here under consideration deals with the question which orders are and which are not subject to appeal. It does G not deal with the way to bring orders which are subject to appeal before this Court. Counsel for the respondents sought to support his contention by contrasting Rule 6 (4) of this Court's Rules, which regulates the noting of appeals, with Rule 6 (6), which regulates the noting of cross-appeals. But, even if any inference could thus be drawn as to the intention of the regulating authority, this could not modify the clear meaning of the provision in the Act. Since, for these reasons, H this Court would have no jurisdiction to entertain the proposed cross-appeal, the application for condonation could not be granted.

The other application arose out of a second report which was composed by the remaining curator ad litem after the trial and after he had received certain information which he thought it was his duty

Schreiner JA

to place before this Court, as bearing upon the suitability of the respondents to have custody of the child. The appellant asked the Court to receive this report and the application was supported by the curator ad litem. It was contended that the jurisdiction of the Supreme Court in matters of custody rests upon its position as upper guardian of the A minor in question, and that where there is an appeal to this Court in such a matter all known facts relevant to the issue should be before the Court, whether or not those facts existed at...