Sopher v Sopher

• Jurisdiction: South Africa
• Citation: 1957 (1) SA 598 (W)

Sopher v Sopher
1957 (1) SA 598 (W)

1957 (1) SA p598

Citation	1957 (1) SA 598 (W)
Court	Witwatersrand Local Division
Judge	Williamson J
Heard	October 18, 1956
Judgment	October 22, 1956

Flynote : Sleutelwoorde A

Minor — Custody — Parents living apart — Jurisdiction of Court to make order under sec: 5 (1) (b) of Act 37 of 1953 — Necessity for a substantive application — Husband and wife — Divorce — Custody — Mere opposition by a defendant to divorce proceedings cannot be treated as an implied application for custody B under sec. 5 (1) (b) of Act 37 of 1953 where plaintiff withdraws the proceedings — Costs — Attorney and client — Matrimonial suit — When ordered — Absence of notice or of special prayer does not debar Court from considering question.

Headnote : Kopnota

C In terms of section 5 (1) (b) of Act 37 of 1953 the Court now has jurisdiction to make an order as to custody stante matrimonio on the application of a parent of a minor child where the parents are living apart, but such an application must be made substantively in due form supported by affidavit or evidence after proper notice. Mere opposition by a defendant in divorce proceedings cannot be treated as a specific application under the sub-section where the plaintiff applies to withdraw the proceedings.

An order for costs on an attorney and client basis in a matrimonial suit D is unusual, and a party applying therefor would have to show special circumstances justifying the grant of the order which might or might not be the same as those required in any other form of action.

At the hearing of a defended matrimonial suit the plaintiff applied to withdraw her action without furnishing any explanation as to why she wished to withdraw her claim without any prior notice. The defendant applied for judgment in his favour and costs on an attorney and client basis.

Held, the plaintiff not objecting, that judgment be entered in the E defendant's favour.

Held, further, that the absence of notice or of a special prayer for costs on an attorney and client basis did not debar the Court from considering the question.

Held, further, that no good grounds had been established for ordering costs on an attorney and client basis. F

Case Information

Action for restitution of conjugal rights and other relief. The facts appear from the reasons for judgment.

W. Oshry, Q.C. (with him C. Rosenthal), for the plaintiff.

H. J. Hanson, Q.C. (with him George Colman), for the defendant.

Cur. adv. vult. G

Postea (October 22nd).

Judgment

Williamson, J.:

In this matter plaintiff instituted action against the H defendant for restitution of conjugal rights and failing restitution a divorce. She also, inter alia, claimed custody of the minor children of the marriage. The defendant filed a plea denying desertion and praying for the dismissal of the plaintiff's claims. In June last the defendant obtained leave to amend his pleadings by adding thereto an alternative allegation that in any event the plaintiff's claims should be dismissed because she had committed adultery, particulars of such adultery being specified. No claim in reconvention was made by the defendant. He

1957 (1) SA p599

Williamson J

merely prayed for the dismissal of his wife's claims with costs.

When the case was called for hearing at the trial, counsel who appeared for the plaintiff stated that he was instructed to withdraw the action. No notice of a...