Thomson v Thomson

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Greenberg JA and Van Den Heever JA
• Judgment Date: 07 December 1948
• Citation: 1949 (1) SA 445 (A)
• Court: Appellate Division

Greenberg, J.A.:

The appellant instituted action against the respondent, his wife, in the Durban and South Coast Local Division for restitution of conjugal rights, failing which divorce and other relief. The summons was issued on the 6th May, 1947. In his declaration it is stated that the respondent wrongfully and maliciously deserted him during the month of October, 1945 and that the desertion has continued since that time without interruption. The respondent in her plea denied the desertion and pleaded, in para. 3, that in any event the appellant was not entitled to the relief he sought because he had committed adultery. The particulars

Greenberg JA

originally given in the plea of the appellant's acts of adultery were:

(a)

In or about the month of March, 1945, the plaintiff had intercourse at about 2 a.m. in his motor-car with a woman whose identity is unknown to the defendant opposite or near the premises on Snell Parade, Durban, known as the 'Sunkist Tearoom'.

(b)

On the afternoon of the same day, in or about the month of March, 1945, amidst some trees near Howard College, Durban, the plaintiff in his motor-car again had intercourse with the same woman.

(c)

In the early morning of the 21st March, 1945, the plaintiff committed adultery with a woman unknown to defendant in his motor-car while parked on the Esplanade at Durban.

The appellant in his replication joined issue with the respondent on her plea. The case was heard before HATHORN, J.P., on the 18th November, 1947, and for five days thereafter, when judgment was reserved. At the close of the evidence, respondent's counsel asked for leave to amend the particulars given under para. 3 (a) of the plea by striking out the words 'whose identity is unknown to defendant' and substituting 'Gloria Lorial Kirby'. This amendment was granted.

At an early stage of the proceedings the respondent had been allowed to amend her plea in regard to the particulars of the appellant's adultery by adding three additional heads. The first was at the commencement of the trial and it reads:

3 (d)

On or about 20th December, 1946, and at 8, Hove Mansions, Marine Parade, Durban, plaintiff committed adultery with a woman named Elinor Robinson.

During the trial two other amendments were allowed which read:

3 (e)

On the 30th and 31st days of May, 1946, the plaintiff at Ifafa Beach Hotel, Ifafa Beach, South coast, . . . committed adultery with the said Elinor Robinson.

3 (f)

On Sunday, 5th January, 1947, plaintiff confessed to defendant at 92, Chelsford Road, Durban, that he had committed adultery with a woman named Elinor Robinson. He did not say when or where.

At the trial the appellant gave evidence in support of the desertion alleged in his declaration but made no reference in his evidence-in-chief to any of the charges of adultery or to the confession alleged in the plea. He was cross-examined in regard to the evidence he had given but when he had been asked a few questions about the state of his feelings towards Miss Robinson and the extent of his association with her, and before any questions had been put in cross-examination as to the allegations of adultery with her or to the confession, Mr. Milne, his counsel, relying on sec. 3 of Law 5 of 1870 (Natal), applied for and obtained a ruling from the presiding Judge that cross-examining counsel was:

Greenberg JA

'not entitled to put any question to the witness tending to show that he had committed adultery with Miss Robinson'.

In this ruling there was no specific reference to the allegations of adultery with the persons referred to in para. 3 (a), (b) and (c) but it was correctly assumed by cross-examining counsel that the ruling applied to these allegations as well. In the result no reference whatsoever was made by the appellant either in his cross-examination or re-examination to the charges contained in para. 3. He closed his case 'subject to the right to lead evidence in rebuttal'. Thereafter evidence was led on behalf of the respondent. It consisted of the evidence of the respondent herself in support of her denial of desertion and of the confession alleged in para. 3. (e) of the plea, and evidence of other witnesses on this confession and the other charges of adultery. Thereupon the appellant's case in rebuttal was heard; it included the evidence of Miss Kirby who denied the charges of adultery in para. 3 (a) and (b) of the plea, and of other witnesses in relation to para. 3 (c) and (e) of the plea. The evidence of the witnesses on behalf of the appellant in relation to para 3 (e) was in denial of the evidence of one of the respondent's witnesses that the appellant and Miss Robinson had shared a room during the nights of the 30th and 31st May, 1946, at the Ifafa Beach Hotel, while the purpose of the other evidence was to destroy or throw doubt on the evidence of the respondent's brother, Peter Hebblethwaite, on whose evidence the charges contained in para. 3 (a), (b) and (c) was based. The appellant did not avail himself of the right to give his own evidence in rebuttal and there is therefore no denial by him of any of the charges of adultery or of the confession, nor did respondent's counsel have the opportunity of cross-examining him on these issues.

The judgment of the Court, which was one of absolution from the instance with costs, was based on the learned JUDGE-PRESIDENT'S view that the appellant's own evidence did not show that the desertion on which he based his action had commenced eighteen months before the action was instituted, as is required by sec. 3 of Law 13 of 1883 (Natal). After having expressed this view he said:

'This judgment might stop at this point, but I heard the evidence of the defendant on all the issues in the case and the evidence of a number of witnesses on the counts of adultery, and it seems to me to be my duty, in case there might be an appeal, at least to discuss the evidence and the credibility of the witnesses, even if I refrain from expressing what my conclusion would have been on every issue.'

Greenberg JA

The appellant's case was that the desertion originally commenced as a refusal by the respondent during October, 1945, of his marital privileges, and that from 14th February, 1946, they no longer lived in the same house; the respondent denied this refusal, and, in so far as there was a conflict between these two witnesses in regard to the refusal of marital privileges, the learned Judge said:

'If I had to come to a conclusion upon this aspect of the case I think I would hold that the plaintiff's evidence that the defendant...