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Van Niekerk v Van Niekerk | Annulment of Marriage | Sterility

Division: Griqualand West Local Division
Date: 4 September 1959
Case No: Unknown
Before: De Vos HugoJ, & Wessels J

Judgement

WESSELS, J.: Applicant and respondent are respectively plaintiff and defendant in an action in which the former claims an order for the restitution of conjugal rights on the ground of the latter's malicious desertion. Applicant now applies on notice of motion for certain amendments to the summons and declaration so as to enable him to claim an order declaring the marriage between the parties to be null and void on account of respondent's premarital sterility. To that end he applies inter alia for the amendment of his declaration by the insertion of the following new paragraph, namely:

"6. At the time of the marriage, and without the knowledge or suspicion of plaintiff, defendant was permanently incapable of procreating offspring. This fact was known to defendant at the time of the marriage and was concealed by defendant from plaintiff."

Respondent has filed an affidavit in which she opposes the application on the following grounds, namely;

"Paragraph 6 of the declaration is bad in law and discloses no cause of action in that permanent incapacity for procreation not accompanied by impotence is no ground for the annulment of a marriage irrespective of whether or not the defendant knew of the fact at the time of marriage and concealed it from the plaintiff.
Paragraph 6 of the declaration is bad in law and discloses no cause of action in that the plaintiff in the said paragraph seeks to claim a declaration of nullity of the marriage on the ground of fraud."

It is clear that the application should be refused if it appears that the effect of the amendment would be to render the declaration excipiable.

Although the paragraph in question might have been drafted with greater clarity, the parties were agreed that it was intended to allege as a basis for the claim for an order declaring the marriage to be null and void two related but distinct grounds, namely

the condition of sterility (i.e., the incapacity to procreate) to which respondent was subject at the timeof the marriage; and
her fraudulent conduct in not disclosing this condition to applicant prior to the marriage.

Mr. Zietsman, who appeared for the applicant, submitted at the outset (correctly, I think) that if his main contentions succeeded it would follow that the marriage would be voidable at the instance of the aggrieved party and not void ab initio.

I propose dealing now with Mr. Zietsman's contention that in our law permanent and incurable pre-marital sterility (impotentia procreandi) is a ground for having the marriage set aside.

There appears to be a singular dearth of authority in South Africa on this point. The only case dealing pertinently with the matter to which we were referred by counsel is Venter v. Venter, 1949 (4) S.A. 123 (W).

My own researches produced no additional case. In Venter's case CLAYDEN, J. (as he then was), decided that pre-marital sterility did not provide a basis for setting aside the marriage, adding (without deciding that point) that in a case of pre-marital sterility the true basis of relief might be the concealment of sterility by one party to the marriage.

In passing, it is of interest to note that if the decision in Venter's case, supra, is correct our law would appear to be the same as English law in so far as the effect of pre-marital impotence is concerned, inasmuch as in English law a marriage is voidable where either party is impotent, that is, where there is a practical impossibility subsisting at the time of the marriage of consummating the marriage. Impotence in the sense referred to clearly relates to impotentia coeundi and not to impotentia procreandi; i.e., pre-marital sterility or barrenness as such does not render the marriage voidable. See, inter alia, Halsbury (3rd ed.), vol. 12 paras. 421 et seq. Consummation of the marriage takes place where there has been erectio and intromissio (the vera copula of ecclesiastical law) notwithstanding the fact that due to barrenness or sterility the wife is incapable of becoming a mother or the husband a father. See also Baxter v. Baxter, 1947 (2) A.E.R. 886; R. v. R. (otherwise F.), 1952 (1)A.E.R. 1194.

Mr. Zietsman submitted that this Court should not follow the decision in Venter's case, supra, which, so he contended, wrongfully states the law except in so far as it is suggested that fraudulent conduct on the part of the sterile spouse provides a basis for relief at the instance of the deceived spouse.

In developing his argument on this part of the case he submitted that the ratio decidendi in Venter's case, supra, i.e.the finding by the learned Judge that the procreation of children is not such an essential or fundamental cause of marriage that, failing it, the union is devoid of meaning and significance, is supported neither by authority nor principleI may mention that in Baxter's case, supra, VISCOUNT JOWITT, L.C., also concluded that the procreation of children was not one of the principal ends or at any rate the principal end of marriage.

Two questions seem to arise for consideration. The first is concerned with a determination of the ends (the causae finales) of marriage, the second with the legal consequences flowing from a failure of one or more of these causes at the time of the marriage. I specifically refer to a failure at the time of the marriage inasmuch as a subsequent failure and its effect on the continued existence of the marriage clearly fall outside the scope of the present enquiry.

man & woman yelling

The union of a man and a woman in marriage is an essentially human relationship with a long history. The formation of the union, its effect on the status and property rights of the parties and its dissolution have through the centuries been liable to considerable modification as the result of the influence of social conditions, the church and the lawgiver.

The only premarital circumstances which can result in a failure of the two causes referred to above would seem to be defects in the physical (or psychological) makeup of one or both o f the spouses. In the case of impotence (impotentia coeundi) there would (save possibly in very exceptional circumstances) necessarily also be a failure of the cause relating to the procreation of children. Sterility (impotentia procreandi) is, on the other hand, not necessarily related to impotence.

Premarital impotence (impotentia coeundi) as a ground for setting aside a marriage is clearly established in our law. See i., H. (Otherwise C.) v. H., 23 S. 609; B. (Otherwise S.) v. S., 1916 C.P. 109; Burgess v. Knight, 1916.N.P. 399; van Rensburg v. van Rensburg, 1929 E.D. 284; Hunt v. Hunt, 1940 W.L. 55; Leighton v. Roos, N. and Another, 1955 (4) S. 137 (N).

In dealing with this ground for setting aside a marriage the older authorities expressed the view that impotent persons could not contract a valid marriage. It followed that such a marriage was void and not voidable. See, e., Huber Jurisprudence of My Time, 1.5; van Leeuwen Censura Forensis, 1.1.15; Brouwer De Jure Connubiorum, Bk. 2 Cap. ult. (33) 20; van Leeuwen Rooms Hollands Regt, 1.15; Grotius Inleidinge tot de Hollandsche Rechts Geleerdheid, 1.5.

Today, however, an impotent person may contract a valid marriage which can only be set aside by the other spouse if he or she contracted the marriage in ignorance of the former's condition, see Wells v. DeanWillcocks, 1924 C.P. 89; van den Heever Breach of Promise and Seduction in South African Law, p. 20; Hahlo South African Law of Husband and Wife, p. 280.

Although there is some reference in the older authorities to deceitful conduct on the part of the impotent person who contracts a marriage, it seems that in modern law a party seeking relief on the ground of impotence need not allege or prove fraud: it is sufficient to prove that the defendant was permanently and incurably impotent at the time of the marriage and that the plaintiff contracted the marriage in ignorance of this fact.

The logical justification for the existence of this ground for setting aside a marriage would seem to be the fact that sexual intercourse is so essential an element of marriage that where it cannot come about there is no marriage, i., the remaining purposes or causes are in contemplation of law insufficient to support the marriage unless the parties themselves are content to regard them as sufficient.
At this stage I should like to refer to another common law ground for setting aside a marriage on account of a circumstance existing at the time of the marriage, i., the pregnancy of the wife at the time of the marriage as a result of premarital intercourse with a man other than her husban d. In this case, too, the true basis for relief does not appear to be the immoral premarital conduct of the wife or her de ception in concealing her pregnancy (circumstances might conceivably arise when she honestly believes that the illicit intercourse did not result in pregnancy).

In Fietze v. Fietze, 1913 E.D. 170, an action founded on this ground, there is reference to fraud on the defendant's part. It is not clear to me why that course was taken. In Smith v. Smith, 1936 C.P. 125, DAVIS, J. (at p. 126) states the position as follows:
"... the arrival into the family of a child who will be the child of one spouse and not of the other brings in its train immense possibilities of tragedy and dissension and difficult questions as to maintenance and discipline. I am quite satisfied that that is the true and proper reason for our law on this subject."
In Horak v. Horak, 3 S. 389, there is a reference in the headnote to error and fraud. A t p. 399 it is, however, stated that the judgment,
"is rested entirely upon the conjunction of the two facts of deflowerment and pregnancy whereby one of the great, if not the great object of marriage procreation of children is defeated."
The basis for the relief was thus not fraud but premarital circumstances resulting in a failure of one of the final causes of marriage, namely, the procreation of children. See also Stander v. Stander, 1929 A. 349 a t p. 355 ; Vereen v. Vereen and Another, 1943 G.W.L. 50; Reyneke v. Reyneke, 1927 O.P. 130; Pansegrouw v. Pansegrouw, 1910 O.P. 51.

The true basis on which relief is granted on the two grounds referred to above (i. impotence and premarital pregnancy) would thus seem to be the one spouse's error as to certain qualities of the other spouse. The mistake is regarded as fundamental because the qualities to which it relates in turn relate to the essential (and not incidental) ends of marriage. Impotence must necessarily result in the failure of sexual intercourse and the procreation of children as ends of marriage and would probably give rise to illicit sexual intercourse on the part of the potent spouse. Pregnancy on the part of the wife results in at least a temporary failure of procreation of children as an end of marriage and might furthermore, throughout the marriage, seriously jeopardise the chances of harmonious cohabitation and the enjoyment of each other's society.

To sum up:

Postnuptial failure of any one or more of the final causes of marriage owing to the unlawful conduct of one spouse entitles the innocent spouse to relief.
Where the element of unlawful conduct is absent even a total failure of the final causes of marriage does not provide a basis for relief, except in the particular circumstances provided for by statute law (insanity and imprisonment). The parties are bound to honour the marriage vow of taking each other "for better or for worse".
If Venter's case, supra, correctly states our law, it follows that a spouse's mistake as to the qualities of the other spouse existing at the time of the marriage only provides a basis for relief where the mistake relates to the potency of the man or woman (restricted to potentia coeundi) or to the woman's condition of being pregnant by another man. I have already ventured the opinion that a mistake of this nature is regarded as fundamental on account of the relationship between the qualities concerned and the appropriate final causes of marriage. In both cases the absence of the quality thought to exist inevitably results in an immediate failure of one or more of the causes of marriage. In the case of impotentia coeundi the failure is necessarily permanent, but in the case of premarita l pregnancy the only inevitable consequence is a temporary failure of procreation as an end of marriage. Its effect on the other causes of marriage are neither inevitable nor necessarily permanent.

A mistake as to other qualities (e. age, race, nationality, religion, social standing, financial circumstances, pre marital chastity, etc.) does not provide a basis for relief, not even where fraud is an element. See Hahlo S. Law of Husband and Wife, p. 272, Leighton v. Roos, N. and Another, 1955 (4) S. 137 (N). These mistakes are not regarded as fundamental, notwithstanding the fact that in individual cases a mistake e. as to religion or pre marital chastity, may seriously affect the marriage. It cannot, however, be said that a failure of one or more of the causes of marriage must inevitably flow from such a mistake. It follows from what I have said that a mistake as to potentia procreandi seems to be the one exception to the rule that a mistake as to a quality which must inevitably result in a failure of at least one of the causes of the marriage (i. one of a fundamental nature) entitles the aggrieved party to relief.

In Venter's case CLAYDEN, J., proceeded to consider the opinions of various authors on Roman Dutch law and states his conclusion as follows at p. 128: "In the light of these passages in the Roman Dutch law, I do not think it can be said that the procreation of children, is so essential an element of marriage that where it cannot come about, there is no marriage."

It follows then that at the time the rule relating to impotence was introduced the distinction between impotentia coeundi and impotentia procreandi and their relationship with the final causes of marriage was given effect to, the firstmentioned incapacity alone being regarded as of such fundamental importance as to entitle an aggrieved party to relief. This presupposes that the various recognised final causes of marriage can be listed in order of essentiality. One can only conclude that sexual intercourse tops the list and that the remaining causes are all to be bracketed together as "not so essential" or else to be placed in some as yet undetermined order of essentiality. This approach casts doubt on the logical basis of the rule relating to premarital pregnancy suggested above. The temporary failure of procreation resulting from premarital pregnancy viewed with alarm in Horak's case, supra, cannot be more serious than the total failure flowing from incurable sterility. (It must be remembered that the woman is not being punished for indulging in illicit intercourse.) The "immense possibilities of tragedy and dissension" referred to by DAVIS, J., in Smith's case, supra at p. 126, are also present where the bride of one day for the first time introduces her onemonthold illegitimate child to her un suspecting husband.

It is also to be noted that immediately after the marriage this "list" becomes legally insignificant. The causes are all dealt with on a basis of parity where there is a failure flowing from the unlawful conduct of one spouse.

I have already referred to the fact that the decision in Venter's case, supra, accords with the position in English law. In addition there are dicta in some of our decided cases where impotence is related to an inability to effect sexual connection. See, e. B. (Otherwise S.) v. S., 1916 C.P. 109, Burgess v. Knight, 1916 N.P. 399 at p. 402, van Rensburg v. van Rensburg, 1929 E.D. 284. The opinions of several authors dealing with our modern law are to the same effect. See e. Wille Principles of S. Law (4th ed.) p. 120; Lee & Honoré Law of Property, Family, Relations, etc., sec. 289; Lee Roman Dutch Law (5th ed.) pp. 52, 94; Hahlo S. Law of Husband and Wife, p. 279; van den Heever Breach of Promise and Seduction in S. Law, p. 17. Contrary views have, however, also been expressed. See e. Maasdorp Institutes of S. Law (7th ed.) vol. 1 p. 90, van Zyl Judicial Practice, vol. 2 pp. 695, 696, and also Menzies p. 143 (Prefatory remarks on cases relating to marriage).

Notwithstanding the persuasive effect of the decisions and opinions above referred to it seems that the problem requires closer examination.
In Venter's case, supra, CLAYDEN, J., refers to certain consequences which might follow from the rule that sterility unaccompanied by impotence provides a basis for relief. He mentions, e., that any marriage by persons who are past the child bearing age may be set aside. The answer seems to be that in a large number of cases it could be held that the plaintiff knew of or was not concerned with the probable failure of procreation. He also states,"moreover with modern medical knowledge it may now be discovered, years after a marriage, that one or other of the parties to it was at the time of the marriage sterile, quite unknown to themselves".

Firstly, I doubt whether many of such cases would ever arise for decision. Secondly, the question is not the desirability or otherwise of recognising such a rule, but whether it in fact exists. In order to determine whether it exists regard must be had to times when medical knowledge was in its infancy decide that that incapacity of itself justifies the declaring void of a marriage. There is so often a change from the phrase which can indicate sterility to the phrase which can only indicate impotence, that there is doubt whether the phrase such as 'onbekwaam tot voortteelen', or impotentia generandi; are not meant in the sense of incapacity to procreate because of impotence."
There is no doubt that the loose language of most of the authorities introduces confusion.

Voet, 24.2, mentions incapacity to procreate (impotentia generandi) in relation to the triennial bar to the institution of proceedings for setting aside the marriage. In passing, it seems that this rule is more appropriate to problems concerned with the ability of procreation than of sexual intercourse. Various factors may delay fertilisation, and if the medical knowledge of centuries ago is borne in mind, it is quite logical that an attitude of "wait and see" should have been adopted. This rule would be of particular importance where, though the man and the woman are apparently capable of full intercourse, fertilisation does not supervene. If it were obvious that procreation could not occur (because of a defect making intercourse impossible) the need for the triennial rule would seem to fall away. Since impotence (impotentia coeundi) must be present at the time of the marriage in order to provide a basis for relief, and would be apparent at once, there seems to be less justification in such a case for the existence of the triennial rule than in the case of sterility unaccompanied by impotence.

Voet, in dealing with this question, refers, inter alia, to van Alphen Papegay, 1st part verbaal 5 p. 54. The headnote to this case is as follows:
"van den Heever Breach of promise and seduction in the S. Law, p. 18, criticises this headnote, stating that it is clear from the request that the marriage was dissolved on the ground of impotence. A reference to this case will, in my opinion, show that although the husband was impotent, the wife's real complaint was that she would not be able to bear children. The ratio decidendi seems to have been not so much the mere fact of impotence as the consequential inability to procreate children.

It is appropriate to refer now to another case related in Bellum Juridicum (case 95). The case arose out of a "versoek van scheydinge van een huwelik, onder pretext van de mans impotensie". It is clear in my view that the question of procreation was a relevant issue in that case. Reference is made to the prohibition"Mans... die door aangeboren gebrek tot de teelinge onbequaam zyn, mogen haar ten huwelik niet begeven". On behalf of the husband there is a reference to the wife's case being based "op het frivole praetext van dat haren man tot de generatie soude wesen impotent", on behalf of the wife there is reference to her desire "ende met kinderen de Republycque te vermeerderen", to the fact that she contracted the marriage for that purpose and that "... die Suppliante jonk genoeg is ende bequaam om moeder te konnen worden en kinderen te konnen krygen". See also Sententien van den Hoogen en Provincialen Raad vir Holland, Zeeland en West Friesland (case 106). Fockema Andreae Bydragen tot de Nederlandsche Rechtsgeschiedenis Bk. 1 pp. 123, 127, deals with the effect of concubitus and it is to be noted that there is a reference to the husband carnally knowing and impregnating the wife ("... haar carnaliter bekent ende geimpregneert hadde gehad").

In my opinion the somewhat loose language employed by those authorities which I was able to consult can possibly be explained by the fact that at the time they were writing Roman Dutch law was not concerned with subtle distinctions between the capacity to consummate and the capacity to procreate in granting relief where at the time of the marriage it appears that there is no change of offspring. It is highly probable that in most cases where natural and full intercourse was possible fertilisation would follow. Having regard to the extent of medical knowledge on the subject available at the time, it would have been difficult for any spouse to prove that the other was at fault where there was a failure of offspring notwithstanding their apparent ability to have natural and full intercourse. In the case of impotentia coeundi, however, proof of the fact that one party was responsible for the failure of the offspring was readily available, because that defect mu st inevitably result in incapacity to procreate.

If there had in fact been any such distinction one would have expected some of the authorities to refer to it. None of those that I was able to consult deal with this distinction in any way.

Nor does there seem to be any warrant for holding that Roman Dutch law drew a deliberate distinction between sterility resulting from impotence on the one hand and from other causes on the other hand.

In my opinion it is the more acceptable explanation that where the Roman Dutch law authorities state that sterile people may not marry they in fact mean that people who are incapable of procreating children may not marry. Impotent persons would automatically fall within the prohibited class, since impotence necessarily involves sterility. Where language is employed which is perhaps more appropriate to the act of intercourse, the authorities would have in mind the fact that the impotence involves sterility and that the impotent constitute a special class of sterile person.

I am thus driven to the conclusion that in Roman Dutch law impotentia procreandi (whether or not it flowed from impotentia coeundi) was a ground for setting aside a marriage if the defect existed at the time of the marriage, and that this is still our law today. Notwithstanding the references in some of the older authorities to fraud, it appears from the cases cited above in which marriages were set aside on the ground of impotence that fraud is not an essential element. There seems to be no reason based on public policy why this rule should not be recognised by our Courts at the present time. For the reasons referred to above the rule will not affect marriages between elderly people. In so far as other marriages are concerned medical science is no doubt in a position to determine at an early stage of the marriage why there is a failure of offspring n otwithstanding the apparent ability of the parties to have full and natural intercourse and whether the position can be remedied.
If I am wrong in my conclusion, and if in fact the Roman Dutch la w drew a distinction between impotentia coeundi and impotentia procreandi along the lines suggested in Venter's case, supra, the further question remains whether the fraudulent conduct imputed to defendant in this case if proved entitles plaintiff to relief.

Marriages have been set aside on the ground of fraud under our law, but in so far as I have been able to ascertain only in cases where the fraud results in the absence of real and valid consent on the part of the plaintiff to contract a marriage with the defendant. See e. Johnson v. McIntyre, 10 S. 318; Haupt v. Haupt, 14 S. 39; Rubens v. Rubens and Another, 26 S. 617; Rees v. Shapiro, 1914 E.D. 390; Benjamin v. Salkinder and Another, 25 S. 512; Kanatopsky v. Kanatopsky, 1935 E.D. 308; Leighton v. Roos, N. and Another, 1955 (4) S. 137 (N).
I have already referred to the fact that there is no indication in our law that fraud relating to any particular quality of the party concerned provides a basis for relief. (Where the fraud relates to the quality of potence or absence of pregnancy, the plaintiff need not rely on fraud as a basis for claiming the setting aside of the marriage.)

The Courts should not, I take it, display overeagerness in adding to the grounds upon which a marriage may be set aside. It is the function of the lawgivers to step in where it is desirable in the public interest to modify or add to the grounds upon which a marriage may be set aside.

I am, however, satisfied that, if I should be wrong in my conclusion stated above in regard to the scope of the impotence rule, the fraudulent conduct of a party in relation to his or her ability to procreate offspring provides a basis upon which a marriage may be set aside.
The fraud would relate to a matter of substance, inasmuch as the inability to procreate inevitably results in the failure of one of the ends of marriage. The failure of children in these circumstances must of necessity have an important effect on the fulfilment of the remaining causes of marriage.

If the impotence rule was in fact restricted to impotentia coeundi it would seem that it might have been so restricted not by reason of any fundamental importance accorded to the transient solace resulting from intercourse, but by reason of the then existing practical inability of relating sterility to a cause other than impotence. In the case of latent sterility the failure of children was no doubt related to divine intervention. Brouwer himself mentions that the grant of offspring must be prayed for to God. (See the passage refe rred to on p. 126 of Venter's case. This mystical approach to the miracle of birth persists even till this day; in notices of birth published in newspapers it is customary to offer thanks not only to the doctor and the nurse but also to God.) The advance of medical science now makes it possible not only to cause sterility by artificial means, but also to relate sterility to causes other than impotence. (This perhaps affords another reason why the impotence rule should be logically extended so as to cover the case of sterility related to a cause other than impotence.)
In addition those authorities to which CLAYDEN, J., refers and which I was able to consult would appear to support a conclusion that fraud in relation to premarital sterility provides a bas is for relief. This is also the conclusion stated by van den Heever at p. 20 of his monograph to which I have already referred.

In the result I am of the opinion that the application for the amendment of plaintiff's summons and declaration should be granted.
In so far as costs are concerned, it seems fair to direct that the matter be reserved for decision by the trial Court. If the matter does not proceed to trial the applicant must pay the wasted costs occasioned by the amendment, but the respondent must pay the costs occasioned by her opposition to the grant of the amendment.

DE VOS HUGO, J.: In this matter I agree with the conclusion arrived at by my Brother WESSELS that the application to amend the summons and declaration should be allowed, but as this matter is of some importance I propose to state briefly my reasons for doing so.
The allegations of fact, which for the purposes of these proceedings must be accepted as correct, are comparatively simple and the resulting issues can be crisply stated. When applicant married the respondent in February, 1957, she had two children of a former marriage but was, as the result of an operation performed on her with her consent, permanently incapable of having more children. The fact that she was so incapable was not made known to applicant by respondent before the marriage. Applicant now seeks leave to claim that the marriage be annulled on the ground that the wife was at the time of the marriage permanently incapable of having children. He says further that this fact was known to respondent at the time of the marriage but was concealed from him by her.

The simple factual position, therefore, is that the applicant married a woman of childbearing age who had two children of a former marriage and was therefore prima facie capable of having more children.

In view of what these authorities say I have come to the conclusion that premarital inability to procreate is a ground for annulment of the marriage. As will be seen later this rule is necessarily subject to certain qualifications.

In Venter's case CLAYDEN, J., was reluctant to accept the conclusion that premar ital inability to procreate is a ground for annulment as the rule, if stated without qualification, is obviously too wide. The type of marriage which troubled the learned Judge was a marriage contracted by persons beyond childbearing age. He feared that this sort of marriage could be invalidated if the rule that premarital inability to procreate is a ground for annulment was admitted without proper limitations. The attention of the learned Judge was, however, not drawn to any limitations, if any, which may have been recognised by the Roman Dutch writers.

I agree that these writers in most cases state the rule without qualifications, but this is, I venture to suggest, quite a natural thing for them to do. They did not write scientific legal treatises in which one can expect legal rules to be formulated with modern precision and containing in their formulation all the limitations to which they are subject. These writers were par excellence exponents of the law as it existed in their time and in that occupation they followed the methods of the Roman jurists. The Corpus Juris was their model and they usually confined their comments to the scope of the Lex they were considering. Consequently one finds that, as in Roman Law, a rule and its limitations, or the exceptions to it, are often regarded as different subjects dealt with separately and at different places in the books. The rule in question is a fair example of this method of treatment.

Coming now to the rule one finds many Roman Dutch writers who say th at a marriage contracted by persons past the childbearing ages is perfectly valid vide Voet Com. ad Pand. 23.2; Groenewegen, De legibus Abrogatis as Cod. 5.4. (nuptias contrahere possunt senes) , a n d ad Dig. 24.1; Perezius, Praelectiones in Cod. 5.4; Huber, Praelectiones Juris Civilis, 23.1; Cos, Verhandeling over het huwelyk, para. 127 in fine; Lybreghts Red vertoog, hoofstuk 12 para. 16, and Kersteman, Rechts Woordenboek, sub voce "dissolutie" p. 109.
It is interesting to note that a marriage of this kind falls within the object of a legitimate marriage as stated by the Roman Dutch writers. Only a few need be referred to: Voet Com. ad Pand. 23.2 (quia prater liberorum procreationem alii plures conjugi fines sunt, veluti mutuum solatium et adjutorium, fornicationis evitatio, legitimatio liberorum. extra matrimonium antea suceptorum); Perezius, Praelectiones in Cod. 5.4. (juxta alterum ejus finem, qui est remedium concupiscentiae et solatium humanitatis ) a n d 5. 4. 2 1. (finis contracti matrimonii est propagatio posteritatis et humanitas solatium), and Cos. op. cit. para. 127 (dat vervolgens het huwelyk ook aangegaan wordt om dat man en vrouw hunne hulpe en troost aan malkanderen zoeken zullen, die elk voor zich zelven niet genoeg heeft; zoo en is 't niet buiten reeden, dat ook oude luiden tot het huwelyk geadmitterd worden).

In my opinion the rule that a marriage can be annulled on the ground of premarital inability to procreate should be confined to those cases in which the procreation of children is an explicit or implied object of the marriage and in which the woman at least is of childbearing
age. There may be further exceptions to this rule, such as the case referred to by Cos, op. cit. para. 130 in which the able spouse is satisfied with the marriage, but these need not be considered here.

The second ground on which applicant seeks leave to claim annulment is fraud, that is, fraud consisting in concealment by the defective spouse of his or her inability from the able spouse. I agree with CLAYDEN, J., that this is a good ground and one for which there is sufficient Roman Dutch authority. In addition to the passages referred to by him I can mention Cos. op cit., para. 129 (dog het gebrek ongeneeslyk zynde, dat zy de trouw achterwege late, want indien zy met ontveinzinge van hul gebrek huwelyk aangaan, is het zelve (het gebrek geneeslyk zynde) van aanbeginne nietig; want niemand gezegd kan worden getrouwd te zyn, die den man niet en kan verdragen): A. Matthaeus, Paroemiae 2 (quod si puella decepta non sit, sed sciens in nuptias spadonis consenserit, tametsi Beza has nuptias tanquam turpes omnimodo disturbandas censeat, non aliter tatem assentir ei possum, nisi constet vitium immedicabile esse), and van den Heever, op. cit., pp. 2021.

For these reasons I agree that the application should be allowed.

Appearances
NW Zietsman Advocate/s for the Applicant/s (Plaintiff/s)
WHM Loubser Advocate/s for the Respondent/s
Farrelly and Farrelly Attorney/s for the Applicant/s
Elliott and Maris Attorney/s for the Respondent/s