Lincesso v Lincesso

• Jurisdiction: South Africa
• Judge: Vieyra J
• Judgment Date: 15 November 1965
• Hearing Date: 20 October 1965
• Court: Witwatersrand Local Division

Vieyra, J.:

On 20th October last, in consequence of the defendant's failure to comply with an order for the restitution of conjugal rights, a decree of divorce was granted and the plaintiff was given the custody of two minor children of the marriage with maintenance for them at the rate of R40 per month. There had also B been a claim for maintenance for the plaintiff herself at the rate of R40 per month but the defendant on the return day opposed the confirmation of the rule nisi in that regard.

The claim for maintenance depends on the provisions o. sec. 10 (1) of the Matrimonial Affairs Act, 37 of 1953, which reads as follows:

'10 (1) The court granting a divorce may, notwithstanding the dissolution of the marriage -

(a)

C make such order against the guilty spouse for the maintenance of the innocent spouse for any period until the death or until the remarriage of the innocent spouse, whichever event may first occur, as the court may deem just; or

(b)

make any agreement between the spouses for the maintenance of one of them, an order of court,

and any court of competent jurisdiction may, on good cause shown (which may be a cause other than the financial means of either of the D respective spouses), rescind, suspend or vary any such order.'

This provision has been the subject of judicial consideration in all Provinces and it seems to me that the view generally taken is that an innocent plaintiff is not entitled to claim maintenance as of right, but that the Court is given a general discretion. The Legislature has not deemed it wise to fetter that discretion in any way nor to lay down the E grounds upon which it is to be exercised. I agree with respect with HERBSTEIN, J., in Croes v Croes, 1960 (4) SA 211 (C) at p. 212, that:

'where a statute gives a Court a general discretion . . . that Court should not attempt to limit such discretion by laying down any hard and fast rules'.

But it must be borne in mind, nevertheless, that at common law not even F an innocent spouse could claim a right to maintenance: see Schultz v Schultz, 1928 OPD 155. Consequently the approach to the question cannot be the same as in the case of a judicial separation. In other words the claimant cannot ask to be treated as if she were still the spouse of the defendant: see Martins v Martins, 1959 (4) SA 218 (O) at p. 220 C - D. In van Wyk v van Wyk, 1954 (4) SA 594 (W), STEYN. G J., at p. 595 B - D, says:

'The question arises as to the circumstances in which the Court would...