Hoffmann v Hoffmann

• Jurisdiction: South Africa
• Judge: Theron J
• Judgment Date: 08 January 1964
• Citation: 1964 (1) SA 746 (C)
• Hearing Date: 20 November 1963
• Court: Cape Provincial Division

Theron, J.:

In this matter the plaintiff instituted action against the defendant (his wife) claiming:

(a)

An order calling upon defendant to restore conjugal rights to plaintiff, and failing compliance therewith,

Theron J

(b)

A decree of divorce;

(c)

An order awarding custody of the minor child born of the marriage to defendant, subject to reasonable access being reserved in plaintiff's favour;

(d)

An order directing plaintiff to pay maintenance for the said A child as follows:

(i)

until she reaches the age of 6 years at the rate of R15 per month;

(ii)

thereafter until she reaches the age of 12 years at the rate of R20 per month;

(iii)

B thereafter until she attains the age of 18 years or becomes self-supporting, whichever date occurs the earlier, at the rate of R30 per month;

(e)

Alternative relief;

(f)

Costs of suit.

Although there was proper service upon her of the summons, declaration C and notice to plead, the defendant failed to enter appearance or to file any pleading. She was duly barred and the matter set down for hearing as unopposed.

On the trial date the plaintiff satisfied me by his evidence that he was entitled to a restitution order. I was also satisfied that there should D be an order in terms of claim (c) above. As regards claim (f), Mr. van Zyl Steyn, who appeared as counsel for the plaintiff, informed me from the Bar that the plaintiff waived his claim to costs. This left only claim (d) which, however, presented some difficulty to me in view of the fact that it had become clear from the evidence of the plaintiff that he E was subject to a subsisting order made by the Magistrate of Welkom, Orange Free State, in July, 1962, in terms whereof he was required to pay R30 per month as normal maintenance for the child and, in addition, R5 per month in respect of certain arrears of maintenance - i.e., a total of R35 per month. It appeared to me that in view of the existence of the order in question, this Court might not have the jurisdiction to F make an order in terms of claim (d) or, at any rate, that it might be undesirable for it to do so. When I conveyed this prima facie view to Mr. Steyn he contended that the Court was entitled to make the order in question and, in all the circumstances of the case, should do so. He relied on the English case of Russell v Russell, (1956) 1 All E.R. G 467, and pointed out - correctly, in my view - that the evidence led before this Court showed not only that the amount of maintenance awarded by the magistrate had been surprisingly high but that the amount the plaintiff was now prepared to pay (as set out in his pleadings - see claim (d) above) was an entirely reasonable amount bearing in mind, H inter alia, that there would be a drop in plaintiff's pay as a result of the granting of a decree of divorce. Mr. Steyn claimed, with some justification, that it would be a hardship to the plaintiff to have to proceed to Welkom to attempt to obtain from the magistrate's court there a variation of its order, particularly in view of the evidence placed by him before this Court that despite knowledge of the nature of the order which he would ask this Court to make, the defendant had done nothing to indicate that she considered the amount offered by him to be inadequate. Counsel urged it

Theron...