‘As was pointed out in the Noble & Barbour v South African Railways and Harbours 1922 AD 527 at 539 – 40, this does not involve reading the word “may” as meaning “must”.  As long as the English language retains its meaning “may” can never be equivalent to “must”.  It is a question whether the grant of the permissive power also imports an obligation in certain circumstances to use the power.  Section 4(1) empowers the Court to grant a decree of divorce on the ground of the irretrievable breakdown of the marriage “if it is satisfied that…”; and then follows a specified state of affairs which is in effect the statutory definition of irretrievable breakdown.  Clearly satisfaction that this state of affairs exists is a necessary prerequisite to the exercise by the Court of its power to grant a decree of divorce on this ground.  But once the Court is so satisfied, can it, in its discretion, withhold or grant a decree of divorce?’

Corbett JA, as he then was, in Schwartz v Schwartz [1984] 4 All SA 645 (AD) referred to by Wallis J, as he then was, in First Rand Bank Ltd v Evans (4229/10) [2011] ZAKZDHC 21; 2011 (4) SA 597 (KZD (18 March 2011) at para [28]

‘Once the applicant for a provisional order of sequestration has established on a prima facie basis the requisites for such an order the court has a discretion whether to grant the order. There is little authority on how this discretion should be exercised, which perhaps indicates that it is unusual for a court to exercise it in favour of the debtor. Broadly speaking it seems to me that the discretion falls within that class of cases generally described as involving a power combined with a duty.  In other words where the conditions prescribed for the grant of a provisional order of sequestration are satisfied then, in the absence of some special circumstances, the court should ordinarily grant the order. It is for the respondent to establish the special or unusual circumstances that warrant the exercise of the court’s discretion in his or her favour. . . .’ [footnotes omitted and emphasis added]. 

 

Further excerpts from S v S relating to changes in divorce law in 1979

‘As is apparent from a reading of the above-quoted sections, the Act has fundamentally changed our divorce law in regard to the grounds upon which a marriage may be dissolved by a decree of divorce.  Prior to the commencement of the Act, the only grounds at common law upon which a Court could pronounce a decree of divorce at the instance of one of the parties to the marriage (the plaintiff) were that the other party (the defendant) had either committed adultery or maliciously deserted the plaintiff.  (Possibly also on the ground that the defendant had been convicted of a crime and sentenced to life imprisonment, but there was some uncertainty about this: see Hahlo The South African Law of Husband and Wife 4th ed at 398 – 9.)

Adultery and malicious desertion constituted a breach by the defendant of his marital obligations.  Thus, apart from the possible exception of life imprisonment, entitlement to divorce was based on fault: the fault of the defendant. 

In 1935 the Legislature added two further grounds of divorce, viz the incurable insanity of the defendant and the imprisonment of the defendant for five years after having been declared an habitual criminal (see Act 32 of 1935s 1(1)). 

Section 3(a)  of the Act, read with s 4, introduces a “no-fault” criterion for the grant of a decree of divorce, viz irretrievable breakdown of the marriage.  The Court may grant a decree of divorce on this ground if it is satisfied, as an objective fact, that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Section 4(2)  specifies certain facts or circumstances which the Court may accept as proof of the irretrievable breakdown of a marriage, but the subsection makes it clear that this list does not exclude any other facts or circumstances which may be indicative of the irretrievable breakdown of the marriage.

The Act also places emphasis on the possibility of reconciliation.  Section 4(3)  provides that, if it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, it may postpone the proceedings in order that the parties may attempt a reconciliation.  And s 4(4)  contains certain procedural provisions where an undefended divorce action is postponed for this purpose.

It was submitted by respondent’s counsel that s 4(1)  confers a discretion on the Court; and that inasmuch as the Court a quo exercised a discretion in reaching the decision it did, this Court should not readily interfere with the exercise of that discretion.  Reference was made in this connection to the decision of the Full Bench of the Orange Free State Provincial Division in the case of Smit v Smit 1982 (4) SA 34 (O).

The submission is, in my opinion, not well-founded. 

In the first place, I am not convinced that s 4(1)  does confer upon the Court the kind of discretion contemplated by counsel’s submission.  It is true that s 4(1)  is couched in permissive terms.  It provides that a Court “may grant a decree of divorce” (Afrikaans text: “kan ‘n egskeidingsbevel…  verleen”). 

It does not necessarily follow, however, that the Legislature intended to confer a discretion on the Court.  Section 4(1)  is clearly an empowering section: it confers legislatively a power which the Court did not previously enjoy.  A statutory enactment conferring a power in permissive language may nevertheless have to be construed as making it the duty of the person or authority in whom the power is reposed to exercise that power when the conditions prescribed as justifying its exercise have been satisfied. 

Whether an enactment should be so construed depends on, inter alia, the language in which it is couched, the context in which it appears, the general scope and object of the legislation, the nature of the thing empowered to be done and the person or persons for whose benefit the power is to be exercised.  (See generally Noble & Barbour v South African Railways and Harbours 1922 AD 527 at 539 – 40, citing Julius v The Bishop of Oxford (1880) 5 AC 214; South African Railways v New Silverton Estate Ltd 1946 AD 830 at 842; Commissioner for Inland Revenue v I H B King; Commissioner for Inland Revenue v A H King  1947 (2) SA 196 (A) at 209 – 10; South African Railways and Harbours v Transvaal Consolidated Land and Exploration Co Ltd 1961 (2) SA 467 (A) at 478 – 80, 502 – 4.)