Goodrich v Goodrich

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Greenberg JA, Schreiner JA and Feetham AJA
• Judgment Date: 27 March 1946
• Citation: 1946 AD 390
• Hearing Date: 14 March 1946
• Court: Appellate Division

Greenberg, J.A.:

This is an application for an order: (1) that the respondent pay to the petitioner's attorneys the sum of £125 as a contribution towards her costs of appeal from a judgment given against her on the 6th September, 1945, in the Durban and Coast Local Division; (2) that she be excused from furnishing security in terms of Rule 7 of this Court in respect of the appeal. Alternatively to these two prayers, she asks for leave to prosecute the appeal in forma pauperis. She also asks that respondent be ordered to pay her maintenance pending the judgment on appeal, that pending such judgment the custody of her minor daughter be given to her and that the respondent be ordered to pay maintenance for the daughter.

The judgment was given in an action instituted against her by the respondent for divorce on the ground of adultery, custody of the two minor children of the marriage and division of the joint estate. The respondent's declaration Alleged that, the petitioner had committed adultery with one C. J. Vaughan on the 14th and I 6th of November, 1944. At the trial the respondent was given leave to amend his declaration by substituting "17th November" for "16th November" and his evidence was directed to prove adultery on this occasion and not on the 14th November also.

The action was heard by BROOME, J, and on the 6th September, 1945, he granted A decree of divorce provisional up to and including the 6th December, 1945 Rule 5 of this Court which deals with applications for leave to proceed in forma pauperis, provides that Rule 4 shall mutatis mutandis apply to such applications and Rule 4 (3) requires that every application for special leave to appeal "shall furnish succinctly and fairly all such information as may be necessary to enable the Court to decide whether such leave ought to be granted and shall annex copy of the judgment delivered by the Court".

Greenberg, J.A.

In the present case the petitioner has annexed a copy of the judgment but I shall have to refer later to the question whether she should not have given additional information in support of one or more of the contentions advanced on her behalf. In the judgment, BROOME, J., has set out the effect of the evidence given by the respondent of the events of the 17th November, 1944, on which he based his claim and of the evidence given in rebuttal by the petitioner and her witnesses. [The reasons for judgment were quoted, the following being relevant to this report.]

"The final impression I formed of the plaintiff's demeanour was a good one. It seems to me, therefore, that I must accept his story.

"That leaves only the final question: 'Do the facts deposed to by the plaintiff justify an inference of adultery?' The presence alone in a bedroom of a man and a woman does not necessarily mean misconduct. In the present case, the room in which the defendant lived was her only place of abode. That would be the place where she would normally entertain her friends. Moreover, the defendant is a woman of about forty years of age whereas the age of Vaughan is given as about nineteen. Further, there is no evidence that Vaughan was anything but fully clothed when the plaintiff and the detective entered. In these circumstances I should have hesitated in drawing an, inference of misconduct from the facts were it not for four factors : Firstly, Mr. Mooney, for the defendant, did not suggest...