Mauerberger v Mauerberger

• Jurisdiction: South Africa
• Judge: Searle J
• Judgment Date: 28 May 1948
• Citation: 1948 (3) SA 731 (C)
• Hearing Date: 28 May 1948
• Court: Cape Provincial Division

Searle, J.:

In this matter the applicant applies on notice of motion for a variation of an order of custody in connection with her minor son Henry Michael. It appears that applicant and first respondent were divorced on the 8th April, 1947, when a final decree was granted; and that the custody of this child, the only son of the marriage, was ordered in terms of an arrangement entered into between the parties under which the child's grandfather, the second respondent (father of first respondent) was given legal custody with power to pass the custody to the first respondent, who was given the physical custody of the child. It now appears that the second respondent has given the first respondent the physical custody and legal custody, and the applicant comes to Court on notice of motion to have that order varied so that she shall get custody, and she makes a number of allegations against the first respondent as reasons justifying a variation of the order. She has filed an affidavit in support of her notice of motion, to which the first respondent has filed a number of affidavits in reply, and yesterday the applicant filed replying affidavits - one by herself and one by the nurse Hildegarde Hansen - in reply to the affidavits on behalf of the first respondent.

Mr. Bloch takes objection in limine to some eight paragraphs of these replying affidavits, as raising new matter which should have been dealt with in the affidavit supporting the notice of motion.

It is quite clear that in notice of motion proceedings an applicant must in his or her supporting affidavit set out fully his or her cause of action. It is not for the applicant to simply make general allegations, and when those allegations are dealt with in reply to come forward with replying affidavits giving details supporting the general allegations originally set out in the affidavit supporting the notice of motion. This matter has been dealt with by the Courts on numbers of occasions, firstly in the Cape by GARDINER, J.P., in Coffee, Tea and Chocolate Co., Ltd v Cape Trading Company (1930 CPD 81 at p. 82); and subsequently by GREENBERG, J., in Joseph and Jeans v Spitz and Others (1931, W.L.D. 48). It is

Searle J

clearly settled law that in replying affidavits an applicant is not allowed to set forth details of allegations which should have appeared in the original affidavit supporting the notice of motion.

Mr. Duncan, who appears for the applicant, does not dispute this as a practice in our Courts. He argues, however, that in an application of this nature the position is somewhat different, in that the Court in determining the question of custody is acting in its capacity as upper guardian of minors and is not bound by the contentions of the parties. There is considerable force in this argument of Mr. Duncan, and it may well be that on occasions the Court will see fit to depart from the recognized practice in motions and applications in which the evidence is placed before the Court on affidavit. The difficulty that arises when one departs from this rule is that it becomes necessary then to have further affidavits...