Lange Appellant v Lange Respondent

1945 AD 332

Appellate Division
1944. November 15; December 13.
TINDALL, J.A, GREENBERG, J.A, and DAVIS, A.J.A.

Flynote

Lunatic. ­­­ Contractual capacity. ­­­ Proof of mental incapacity. ­­­ Test to be applied. ­­­ Marriage. ­­­ Whether void ab
initio.

Headnote

In order to establish that a marriage is invalid on the ground that one of the parties thereto was suffering from
mental disorder at the time of the marriage, it is not necessary to prove that such person, owing to mental disease,
did not understand or appreciate the nature of the contract: proof that his consent was motivated or influenced by
an insane delusion caused by mental disease is sufficient, inasmuch as in such circumstances it cannot be said that
his mind was a consenting mind.

Where, therefore, the evidence disclosed that at the time of his marriage the defendant understood the nature of
the contract and appreciated the nature of the obligations he was undertaking, but that he was already suffering
from dementia praecox and that his volition in entering into the marriage was influenced by auditory hallucinations
caused by mental disease.

Held, that the marriage should be declared to be null and void ab initio.

The case of Prinsloo's Curators v Crafford and Prinsloo (1905 TS 669); Vermaak v Vermaak (1929 OPD 13); Pheasant v
Warne (1922 AD 481) and Estate Rehne v Rehne 1930 OPD 80, considered.

The decision of the Transvaal Provincial Division in Lange v Lange, reversed.

Case Information

Appeal from a decision of the Transvaal Provincial Division (BLACKWELL, J.).

The facts appear from the judgment of TINDALL, J.A.

J. D. Jerling, for the appellant: The test as to the right to claim an order for nullity of marriage on the ground of
insanity at the time it was contracted is not merely whether the respondent is aware that he or she is going
through a ceremony of marriage, but whether he or she is capable of understanding the nature of the contrast
entered into, free from the influence of morbid delusions: Vermaak v Vermaak (1929, O.P.D. 13). When it is shown
that over a period a person had an insane delusion such person is in

1945 AD at Page 333

law regarded as having been insane during that period; the presumption of law is furthermore that he had such
insane delusion at all times during such period and accordingly the burden of proving a lucid interval at a given time
during such period lies on the party alleging it: Halsbury (vol. 16, p. 565, para. 846; vol. 21, p. 293, para. 505);
Turner v Meyers (161 E.R. 600); Estate Rehne and Others v Rehne 1930 OPD 80; Rapson v Putterill (1913, A.D at 420);
Taylor on Evidence (p. 189, para. 197); Attorney­General v Parnther (29 ER 632 at 634); Banks v Goodfellow (L.R. 5 QB
549 at 560, 565, 570); Snook v Watts (50 ER 757); Molyneux v Natal Land Co. 1905 AC 555. All legal acts done by
respondent during the period 1938 to 1944 must be presumed to be void and such a presumption can only be
rebutted if it is shown to the Court that his insane delusions did not, and were not calculated to influence him in
doing those acts: Estate Rehne v Rehne (supra); Rapson v Putterill (supra); on the evidence there is a presumption
that respondent was insane at the time of going through the ceremony of marriage, and as there is no evidence on
record to rebut this presumption, the marriage is void in law.

M.A. van Hulsteyn, for the respondent: No insane delusion which does not falsify the outlook of a person in regard
to a particular legal act or its consequences has any bearing upon the validity or invalidity of that act. The evidence
does not show that respondent had any such insane delusions about marriage: Maasdorp (vol. 1, p. 93); Vermaak v
Vermaak (1920 OPD 13); Pienaar v Pienaar's Curator (1930 OPD 171, 175); Halsbury (vol. 16, p. 845; vol. 21, p. 495);
Hunter v Edney (1885 OPD 93); Durham v Durham (1885 OPD 80 at 82); Jackson v Jackson 1908 P 308 at 310);
Forster v Forster (39 TLR 658 at 661); Hancock v Peaty (L.R., 1 PD 335 at 341); Turner v Meyers (161 E.R. 600 at
601); Ex parte F. (1914 WLD 27 at 28); Rapson v Putterill (supra, at 420); Estate Rehne and Others (supra, at 85, 86,
87, 89, 91, 92); Pheasant v Warne (1922 AD 481 a t 487, 488); Halsbury (vol. 21, p. 499). The burden of proof is
primarily on plaintiff. See Vermaak v Vermaak (supra, at 15, 17); Halsbury (vol. 21, at pp. 494, 505); Durham v
Durham (1885, 10 PD 80 (headnote)); Canon v Smalley (1885, 10 PD 96 at 98); Halsbury (vol. 16, p. 846). Only if
permanent insanity is proved does the burden of proof rest upon the person seeking to uphold the validity of a
marriage: Vermaak v Vermaak (supra, at 18); Halsbury (vol.

1945 AD at Page 334

Jerling replied.

Cur. adv. vult.

Postea (December 13th).

Judgment

TINDALL, J.A.: The appellant, Sophia Louisa Lange (born du Plessis), sued her husband unsuccessfully in the
Transvaal Provincial Division for an order declaring her marriage with Otto Theodor Lange null and void on the
ground that the defendant was insane at the date of the marriage, which took place on 19th March, 1940, at
Durban, Natal. On 24th December, 1942, he was admitted to the Pretoria Mental Hospital where he was still
detained at the date of the summons in the present proceedings, namely 17th May, 1944, in which the plaintiff
joined the curator ad litem, Mr. van Hulsteyn, a member of the Bar who was appointed by the Court on 4th May,
1944. It appears that early in June, 1944, the curator received information from Dr de Vos, a mental specialist at the
Mental Hospital, that it was likely that the defendant, who is a German national, would, together with some of his
fellow­countrymen, be repatriated about the middle of June. The curator thereupon, after ascertaining in official
quarters that if a Supreme Court subpoena were served on the defendant it would be respected, wrote to Dr de
Vos asking him to ascertain from the defendant whether he wished to be subpoenaed to give evidence so that he
might be present at the trial. It appears that the curator and Dr de Vos were both of opinion that the defendant's
mental condition was not such as to incapacitate him from giving evidence; yet the defendant, as we understand,
preferred to be repatriated; by the date on which the trial commenced, namely 8th August, 1944, he had left the
country. Accordingly BLACKWELL, J., who tried the action, had no opportunity of seeing the defendant or hearing
what he had to say.

Of the witnesses who gave evidence as to the behaviour of the defendant, two had come into personal contact
with him before the marriage, namely Mrs. Bruns and, of course, the plaintiff herself. Dr de Vos who was the only
witness called on behalf of

1945 AD at Page 335

the defendant, first saw the defendant when he was admitted to the Mental Hospital and he certified the defendant
on 30th December, 1942, as being of unsound mind. According to Dr de Vos the defendant was "a complete picture
o f dementi proecox paranoid". The defendant had auditory hallucinations, e.g. he heard imaginary voices from
above, from below and around him. At one time he also had hallucinations of taste and smell and at another he
fancied that intestines were wound round his leg. The defendant also thought that certain remarks on the wireless
referred to him and he was abnormally suspicious, thinking that people would be hostile to him. Dr de Vos
considered that the defendant's mental condition had deteriorated slightly during the period of detention in the
Mental Hospital (approximately 18 months) and expressed the definite opinion that the defendant was of unsound
mind. In view of this evidence it was not disputed by Mr. van Hulsteyn that the defendant was of unsound mind from
December, 1942, onwards, but he contested the allegation that his mind was deranged at the date of the marriage
two years and nine months before the commencement of the defendant's detention in the Mental Hospital.

The crucial question being the defendant's mental state in March, 1940, it is desirable, before discussing the
evidence of the two psychiatrists called on behalf of the plaintiff, namely Drs. Geerling and du Toit, to mention the
evidence which throws light on the mental state of the defendant before that date. Mrs. Bruns, at whose marriage
in Durban in December, 1938, the defendant officiated as best man, and with whom as well as with whose husband
he was on friendly terms, stated that she noticed that the defendant was moody, that he avoided the company of
other people, and was very distrustful of people, mostly people, with whom he worked. He was even distrustful of
Mrs. Bruns' husband, though, the latter was supposed to be his best friend. He refused ever to travel in a car driven
by Bruns and he told Mrs. Bruns that her husband, if he drove a car when the defendant was in it, would cause a
collision on purpose and kill him. He was subject to fits of violent temper for no apparent reason. He told Mrs. Bruns
once or twice that he heard voices which told him of news of his mother in Germany and of troop movements
overseas. The voices also told him that people in the office where he was employed were trying to get him out of
the business. When he spoke about the voices he looked serious but afterwards he would smile; and because he
smiled, Mrs. Bruns stated, she took no notice of what he said. In

1945 AD at Page 336

an earlier sentence in her evidence Mrs. Bruns had stated that she took no notice "because she had been warned
against his temperament". The last occasion on which Mrs. Bruns saw the defendant to speak to was a week or
two before the outbreak of war between Great Britain and Germany.

The plaintiff's own evidence was substantially to the following effect: She met the defendant in Durban in August,
1939. In November he seduced her and thereafter the plaintiff, who was in love with him, cohabited with the
defendant until 30th December, when he was interned. The plaintiff succeeded in getting the authorities to release
him on 9th March, 1940, and on 19th March, 1940, they were married by a magistrate at Durban in community of
property. There is no evidence that either of the parties had any property at the date of the marriage or
subsequently. After the marriage the parties lived together for two­and­a­half months until on 4th June, 1940, the
defendant was interned again. I infer that there are no children born of the marriage. The defendant remained in
the internment camp until towards the end of 1942 when, following on concussion sustained by him owing to a kick
on the forehead during a game of football, he was sent to the General Hospital in Pretoria from where he was
removed to the Mental Hospital on 24th December, 1942, as already stated. The plaintiff visited the defendant at
intervals in the internment camp and at the Mental Hospital. Her last visit was about three weeks after she issued
summons, namely on 11th June, 1944, when she took him some clothing and money. The defendant told her that
he would get into touch with an attorney and try to defend the action. The plaintiff (explaining to the Court that the
defendant knew that, if expenses were incurred, she would have to find the money) stated that she told the
defendant she would not pay for the defence. She told him he could either defend the action or he could take the
money she had brought and return to Germany. He remarked that he wanted to go to Germany and also to defend
the case. She told him he must decide to take the one course or the other.

I pass to the evidence of the plaintiff which throws light on the defendant's mental state during the period August,
1939, to June, 1940, and also later. She stated that on various occasions he spoke about voices that he heard. On
the day of the marriage, as they were about to ascend the steps leading to the magistrate's court, the defendant
stopped, saying: "Wait a little, I am listening."

1945 AD at Page 337

After standing a short while he remarked: "All right, old girl, we can get married now. The voices say it is O.K." The
defendant's appearance as he spoke was serious but the plaintiff thought it was a joke and told him not to be
stupid. On one occasion about two weeks after the marriage, when some sardines which the plaintiff had served at
a meal disagreed with the defendant's digestion, he accused her of trying to poison him and said that she was tired
of him. He remarked also that voices told him that she would eventually poison him. On another occasion he
mentioned to the plaintiff that voices told him that eventually he would be killed by a native. One day the plaintiff
found him crying in his room because, as he explained to her, voices had told him that his mother would die before
he saw her again. The plaintiff stated also that he avoided associating with people and that he complained that the
husband of Mrs. Bruns and another man were trying to injure his prospects in business. After his re­internment in
June, 1940, in letters to the plaintiff he frequently mentioned that voices told him what she was doing and where
she was going. When she saw him at the Mental Hospital after December, 1942, he maintained that any
deterioration in his mental condition was due to the injury to his head while playing football. In regard to this injury
Dr de Vos stated in evidence that an X­ray photograph revealed no internal injury. His opinion was that the
defendant's mental disorder, dementia proecox, was a constitutional condition, though the kick on the head might
have hastened its manifestation or have aggravated it. In regard to the symptoms, testified to by Mrs. Bruns and
the plaintiff, namely the desire for solitude, the delusion of persecution and the auditory hallucinations, Dr de Vos
considered that the first might be a premonitory sign of dementia proecox and that the second might indicate a type
of personality likely to develop that disorder; he considered that the auditory hallucinations constituted the
strongest symptom. When the defendant was first admitted to the Mental Hospital, Dr de Vos, making allowance for
the possible effect of internment, the war and the accident on the defendant's mental state, hesitated to diagnose
dementia proecox; but within a week he was certain of his diagnosis. When questioned whether, assuming the
evidence of Mrs. Bruns and the plaintiff to be correct, the defendant was suffering from dementia proecox in March,
1940, Dr de Vos answered in effect that, in the light of the defendant's subsequent history, he held the view that
because of the symptoms testified to by Mrs. Bruns and

1945 AD at Page 338

the plaintiff, the defendant must have been suffering from dementia proecox in March, 1940, though he was not
prepared to say that he would then have certified him for detention. But, though holding this opinion, Dr de Vos
also considered that in March, 1940, the defendant must have realised what he was doing and have appreciated
the responsibilities he was undertaking in entering into the marriage.

It is necessary now to refer to the evidence of Drs. Geerling and du Toit. The former expressed the opinion that the
defendant's behaviour before entering the magistrate's court for the purpose of getting married, as testified to by
the plaintiff, was a fairly strong indication that he was acting under the influence of a delusion, or, otherwise
expressed, that he was getting permission from the voices to get married. Dr. Geerling was of opinion that the
defendant knew perfectly well that he was getting married and that he wanted to marry but that, wanting to get
married, he was still being influenced by outside influences not under his control, namely the auditory hallucination
which, though it would not prevent him from knowing what he was doing, would deprive him of his free will in
performing the act of entering into the marriage. The defendant wanted to get married, Dr. Geerling stated, and the
voices said it was in order, but if the voices had said he must not get married he did not think that the defendant
would have married. Dr. Geerling, who examined the defendant in February, 1944, had no doubt that he was
suffering from the mental disorder known as dementia proecox, and on the evidence as to the defendant's behaviour
prior to the marriage, he was of opinion that he was suffering from that kind of mental disorder in a mild form at the
time of his marriage and then already had morbid delusions. In interrogating Dr. Geerling, BLACKWELL, J., after
telling him that he might take it that he accepted the plaintiff's evidence as being perfectly candid and correct,
asked him whether he would describe the defendant's conduct on the day of the marriage as the conduct of a man
who was already so insane that he did not understand that he was getting married or what marriage involved. Dr.
Geerling's answer was, in substance, that he thought the defendant had such understanding but that, in spite of
that, he may have been acting under the influence of a persecutional idea. On receiving this answer the learned
Judge then put to the witness the question: "At the date of the marriage was the defendant insane,

1945 AD at Page 339

yes or no?" The answer was "Yes". Seeing that the word "insane" is one which is used in various senses and is not
easy to define, an answer of Yes or No was not likely to aid the solution of the problem with which the trial Court
was confronted.
The other expert witness, Dr du Toit, who, in addition to his professional qualifications, holds various appointments
from the Government as a psychiatrist, examined the defendant in June, 1944, and concluded that he was suffering
from dementia proecox. Giving his opinion of the defendant's mental state at the time of the marriage, four years
earlier, on the assumption that the evidence as to his symptoms given by Mrs. Bruns and the plaintiff was correct,
Dr du Toit expressed the opinion that his mind must have been so much diseased that his reasoning and judgment
were impaired, though to what extent it was impossible to say. That evidence, he said, showed that the defendant
was subject to delusions and hallucinations. Dr du Toit stated fairly that he could not say whether in fact the
defendant's decision to marry was influenced by hallucinations; all he could say was that if he had the hallucinations
testified to and paid attention to them and they affected his mood, then his reasoning and judgment must have
been influenced. Dr du Toit agreed that the defendant must have understood what he was doing when he got
married, but he pointed out that, although a mentally disordered person might fully understand the nature of an
act, his motive for doing the act might be influenced by his delusions.

The evidence in the case being in substance that summarised above, it is necessary to examine the judgment of
BLACKWELL, J., now under appeal. The learned Judge pointed out that the onus lay on the plaintiff to prove that the
defendant was insane at the time of the marriage. But the learned Judge's reasons show that he considered that,
in determining whether the onus was discharged, the test to be applied was whether the defendant was incapable,
at the time of the marriage, of understanding the nature of the marriage or appreciating the duties thereby created,
a test which is mentioned in Prinsloo's Curators v Crafford and Prinsloo 1905 TS 669, at p. 673), one of the cases
quoted by BLACKWELL, J. He also quoted Vermaak v Vermaak 1929 OPD 13 and the decisions cited in that case; but
the following passages in his judgment show the test which he actually applied. The learned Judge said:

"I think I have now set out the main features of her story,

1945 AD at Page 340

upon which emphasis is laid by her counsel as suggesting that at the time of the marriage Lange was of such
unsound mind that he was incapable of realising either that he was getting married, or if he did realise that, of
appreciating the consequences of what he was doing. But I am afraid that with every wish to assist the plaintiff, I
cannot agree that these incidents, in their sum total, come anywhere near proving the plaintiff's case. It is clear, of
course, that Lange was highly strung and a neurotic individual from 1938 onwards. The evidence of Mrs. Bruns, to
which I need not refer in detail, shows that he had this persecution complex. I will go thus far and say that I agree
with the doctors that in 1940 he was in the early stages of dementia proecox. He was in the early stages of that
mental disease which three or four years later led to his being certified and led to his detention in the Mental
Hospital at Pretoria. But I cannot say for one moment that he had reached that stage in 1940 that he could not
understand the consequences and the act he was performing when he married the plaintiff in March. . . .
Nevertheless, when I put it to Dr. Geerling specifically as to whether he was prepared to take the responsibility of
saying that at the time of the marriage the defendant was, incapable of understanding the nature of the marriage
contract or appreciating the duties and responsibilities thereby created, he was not prepared to say that the
defendant was so incapable. . . . Dr du Toit, though called by the plaintiff, was very definite in refusing to commit
himself as to the state of mind of the defendant in 1940 or to the statement that the defendant in 1940 was so
mentally disordered as to be incapable of understanding the nature of the marriage contract when he entered into
it. Dr de Vos, who has had better opportunities of studying the case of the defendant than either of the other two
doctors called by the plaintiff, is definite that it would be most unsafe to assume that in 1940 the defendant was
incapable of understanding the marriage contract. . . ."

The test thus applied (which, for reasons I shall explain later, was, in my opinion, erroneous) was, indeed, that
alleged in the plaintiff's declaration, para, 5 of which alleged: "At the date of the said marriage the defendant was
insane and incapable of understanding the nature of the marriage contract or of appreciating the duties and
responsibilities thereby created." However that may be, during the argument before us counsel for the plaintiff, at
the

1945 AD at Page 341

suggestion of the Court, applied for an amendment of that paragraph by adding the following words: "This insanity
further rendered him incapable of giving that rational consent which is necessary in law to constitute a valid
marriage." Mr. van Hulsteyn did not oppose the application. The Court has come to the conclusion that the
amendment should be granted.

Before considering whether the evidence was sufficient to discharge the onus, it is necessary to consider what
proof is required to establish that a marriage is invalid on the ground that one of the parties thereto was suffering
from mental disorder at the time. As stated by INNES, C.J., in Pheasant v Warne (1922 AD 481, at pp. 487, 488), a
consenting mind is essentials to contractual validity, Voet (23.2.6) states that "the consent of the parties to the
marriage is such an essential that a flaw in the consent renders a marriage ipso jure void; which happens when a
marriage is contracted by an insane person." I use the term "insane person" as a translation of the Latin furiosus.
See also Voet (27.10.3), the passage quoted in Molyneux v Natal Land & Colonization Co. (1905 AC 555). There are
various types of insanity, but whatever types may be intended to be included in the statement that an insane
person cannot contract a valid marriage, the reason for the invalidity is the absence of the consenting mind.
Brouwer (de Jure Connub. 2.4.29) says: "Hi peraeque omnes, seu amentes, seu furiosi, seu furiati, seu lunatici sunt,
dum furore corripiuntur, matrimonium contrahere non possunt, quia propter mentis emotionem, consensum rebus
praebere non possunt." (All these equally, whether amentes, o r furiosi o r furiati o r lunatici ­­­ I leave these terms
untranslated because it is almost impossible to say what their exact equivalents are in modern terminology ­­­ while
they are seized by the madness cannot contract a marriage because on account of the disturbance of the mind they
cannot furnish consent to the transaction.) In Pheasant v Warne, INNES, C.J., stated at p. 488: ­­­
"And running through all the statutory definitions of mental disorder, so far as these definitions affect civil liability,
there will be found the test ­­­ whether the person concerned is incapable of managing his affairs. It is in essence
the test of the early writers, though modern science may enable us to give it a more extended and effective
application. And a court of law called upon to decide a question of contractual liability depending upon mental
capacity must determine whether the person concerned was or

1945 AD at Page 342

was not at the time capable of managing the particular affair in question ­­­ that is to say whether his mind was
such that he could understand and appreciate the transaction into which he purported to enter. If he was, then due
effect must be given to his intention as manifested; if he was not, then the animus which the law requires could not
have been present and the transaction must be declared null and void."

I doubt whether this statement was intended to convey that mental disorder in a contracting party does not
invalidate the contract unless that party was, owing to such disorder, unable to understand and appreciate the
transaction into which he entered. It is noteworthy that, in spite of the wide language used by INNES, C.J., in the
passage just quoted, in framing the terms of the order remitting the case for further hearing, the learned CHIEF
JUSTICE phrased it in these terms: "The defendant to be permitted to file a plea that at the date of the alleged
contract of sale he was mentally incapable of assenting thereto." It is clear, of course, that if, owing to mental
disease, a contracting party does not understand or appreciate the nature of the matter, the contract will be void;
for he could not be held to have consented to obligations the nature of which he could not understand. But the
converse is not necessarily true. As pointed out by DE VILLIERS, J.P., in Estate Rehne v Rehne (1930 OPD 80, at p.
87), where a party enters into a transaction under the influence of an insane delusion the transaction would not be
validated merely because that party understood the transaction and intended to enter into it. It seems to me that a
party's consent may be motivated or influenced by an insane delusion caused by mental disease and that, where
this is proved to be the case, it cannot truly be said that his mind was a consenting mind.

I propose now to apply to the present case the principles which I have attempted to enunciate. The trial Judge,
who was very favourably impressed with the manner in which the plaintiff gave her evidence, stated that in the
main he was disposed to accept her evidence as a perfectly truthful account of the circumstances under which she
came to marry and of the character and disposition of the defendant; he had no doubt that the incidents she
testified to did occur. The evidence of Mrs. Bruns was given on commission, but she was not shaken in cross­
examination and her evidence stands uncontradicted. The behaviour of the defendant described by these two
witnesses, when it is considered in the light of the subsequent

1945 AD at Page 343

history of the defendant and the medical evidence summarised above, leaves no doubt in my mind that at the time
of his marriage the defendant already had dementia praecox; he was then subject to delusions of persecution and
to auditory hallucinations and the delusions and hallucinations were caused by disease of the mind. The
defendant's mental state in December, 1942, which was undoubtedly that of a person suffering from dementia
praecox, was not recent or sudden in its inception; the evidence shows that it was of slow growth. It had begun as
far back as 1938 or earlier, and the question is whether by the time of the marriage in March, 1940, it had
developed to such an extent that the defendant was not capable of consenting validly to the contract of marriage.
In Vermaak's case (ubi supra) the defendant suffered from dementia praecox, and the Court was satisfied that her
mental disease prevented her from addressing her mind to the consequences of marriage. In Hunter v Edney (10 PD
93) the defendant at the time of her marriage was labouring under morbid delusions and imagining things that did
not exist, and the Court found it proved that she was not able to know and appreciate the act she was doing at the
time, but that she took an entirely morbid and diseased view of it. In Forster v Forster (39 TLR 658) there was
evidence that the defendant suffered from a form of alcoholic mental disorder and was the victim, during recurrent
periods, of grandiose delusions. The Court found that at the time of the marriage the defendant suffered from
delusions as to his own persona, his position in the world and as to his capacity to perform any of the obligations
which he undertook ­­­ delusions which rendered his life at the time an unreal thing; and, on that finding, the Court
held that he was mentally incapable of entering into the contract of marriage. These three cases are not in point in
the present case. Here the facts are different; the defendant must have understood the nature of the contract and
have appreciated the nature of the obligations he was undertaking. But the question is whether his volition was
not influenced by his mental disease and more particularly by the auditory hallucinations from which he suffered. Of
course it cannot be demonstrated that his volition was so influenced. Whether it was or was is a matter of
inference; but it is legitimate to draw an inference on a balance of probabilities. The evidence above mentioned, and
especially that as to his behaviour before entering the magistrate's office to be married, seems to me to render it
highly

1945 AD at Page 344

probable that his volition was so influenced. It is true that the incident made little impression at the time on the
plaintiff, who seems to have given her evidence very candidly. But that she should have treated it lightly then is
readily intelligible; it is only in the light of the defendant's subsequent history that the significance of the symptom
in question can be measured.

I have come to the conclusion on the evidence that the plaintiff established that the defendant's volition in entering
into the marriage was influenced by auditory hallucinations caused by mental disease. This is not a case where the
delusion was unconnected with the transaction in question, as in Banks v Goodfellow (L.R. 5 QB 549). The case is not
free from difficulty; indeed, it is an illustration of the truth of the remark of Lord LANGDALE in Snook v Watts (50 ER
757) that "there is no subject, I conceive, more difficult to investigate and satisfactorily to adjudicate upon in courts
of justice than the state of a man's mind, with reference to his sanity or insanity, for the purpose of determining
whether he is legally bound or answerable for his acts". But on the whole I am of opinion that the plaintiff's claim
ought to have succeeded.

The appeal is allowed with costs, the order of absolution is set aside and an order is granted declaring the marriage
between the defendant and the plaintiff to be null and void, with costs against the defendant.

GREENBERG, J.A, and DAVIS, A.J.A, concurred.

Appeal accordingly allowed.

Appellant's Attorneys: D. Jerling, Alberton; Cross & Louw, Pretoria; Naude & Naude, Bloemfontein.