REPUBLIC OF NAMIBIA
REPORTABLE
REPUBLIC OF
NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN
DIVISION
JUDGMENT
Case No: I 1704/2009
In the matter between:
HARALD GUNNAR VOIGTS
.........................................................................PLAINTIFF
and
SITTA ELKE VOIGTS (Born
WALDSCHMIDT) .........................................DEFENDANT
Neutral citation: Voigts v
Voigts (I 1704/2009(B))[2013] NAHCMD 281 (11 October 2013)
Coram: DAMASEB, JP
Heard: 2nd
October 2013
Delivered: 11th
October 2013
Flynote: Husband and wife –
Divorce – Action for divorce – Constructive desertion –
RcR granted – On return date, onus is on the defendant to prove
to the court that the tender of the restitution of conjugal rights is
genuine.
________________________________________________________________
ORDER
________________________________________________________________
I hereby grant the plaintiff a final
order of divorce, with costs, to include the costs of one instructing
and one instructed counsel.
______________________________________________________________
JUDGMENT
_______________________________________________________________
DAMASEB, JP: [1] On this
extended return day of an order for restitution of conjugal rights
(RcR), the defendant whose constructive desertion led to the
breakdown of the marriage, bears the onus to show that her offer to
return is bona fide.
[2] On 24 June 2013, after hearing the
evidence and argument, I gave judgment in a contested divorce in
which the husband relied on the wife’s constructive desertion.
I made, as against the defendant, the critical finding that her
improper and unwifely association with the man she had admitted to
committing adultery with during her marriage to the plaintiff, was
the cause of the breakdown of the marriage; and that even while
denying any association with him to the plaintiff, she in fact
continued that association and was emotionally dependent on the man
with whom she had committed adultery. I also found that the plaintiff
was deeply hurt by the defendant’s continuing association with
the man who brought pain in the marriage but that the defendant was
indifferent to the plaintiff’s feelings of hurt. I described
that as callous conduct.
[3] It is necessary to briefly set out
what happened since I issued the rule nisi. Based on the
affidavits filed by the parties, the following transpired: The dies
for the RcR, in terms of the court’s order, were to expire on
05 August 2013. On that date, it is common cause, the defendant’s
legal practitioner of record, directed a letter to plaintiff’s
legal practitioner in the following terms:
‘FROM:
Theunissen, Louw & Partners
Our
Reference: V3545.16/EG/mb 05 August 2013
Behrens
& Pfeifer
FAX:
061 – 220968
WINDHOEK
Dear
Sir,
RE:
VOIGTS vs VOIGTS
The
above-mentioned matter bears reference.
Kindly
take notice that we hold instructions to address this letter to you
on behalf of our client who has instructed as follows:
That
she herewith unequivocally and without reservation return and/or
tenders her return to the plaintiff and to receive the latter as
spouse.
That
her return and/or offer of restitution of conjugal rights is genuine
and bona fide and accompanied by a serious intention to do so with
the intent to resume marital cohabitation in all its forms and ways.
Kindly
take further notice that this letter serves to inform you that our
client would consequently oppose the moving of a final decree of
divorce set down for the return date being the 3rd of
September 2013 in the High Court of Namibia.
We
trust that you find the aforesaid in order.
Yours
faithfully
E
F P Gous’
[4] On the same day, the defendant
filed of record an affidavit in which (and because of its brevity I
will quote it in full), she states the following:
‘On
the 24th
day
of June 2013 this Honourable Court ordered me to restore conjugal
rights to the plaintiff, or for me to return to him on or before the
5th
day
of August 2013 and failing such restoration, return or receipt, to
show cause before this Honourable Court on the 5th
day
of September 2013 why the bonds of Marriage between us should not be
dissolved and certain ancillary relief not granted to him.
I
herewith unequivocally and without reservation return and/or tender
to return to the plaintiff and to receive the latter as spouse. In
doing so I further wish to state that I have at all relevant times
hereto cohabitated with the plaintiff in the same common home situate
on the farm Otjozonjati nr 69, Okahandja District and would continue
to do so in order to resume life with the plaintiff as husband and
wife.
I
further wish to state that I currently no longer have any contact
with Mr. EH, either on the basis of private of otherwise and that I
have no intentions to resume future contact with Mr. Hoff.
I
further wish to state that my restitution of conjugal rights to the
plaintiff is genuine and bona fide and accompanied by a serious
intention to so with the intent to resume marital cohabitation in all
its forms and ways.’
[5] In his affidavit of ‘non-return’
filed of record on 28 August 2013, the plaintiff alleged that since
the RcR was granted, the defendant had not once approached him
personally with a view to saving the marriage and restituting
conjugal rights. He added that they ‘had absolutely no
discussion on our marriage’. According to him, since the trial
in June 2013 and since service of the RcR on her, the defendant had
the opportunity of demonstrating whether she had changed her attitude
and conduct in respect of the marriage but that she had not done so.
He confirmed that the only contact made by the defendant was a letter
by her lawyers to his’. The plaintiff also states that the
manner in which restitution is tendered shows lack of bona fides on
defendant’s part. He maintains that given past experience he
places no great store by the defendant’s undertaking that she
ended the relationship with EH. In a further affidavit filed of
record, the plaintiff states that the relationship with the defendant
has not improved since the RcR order. According to him, the
relationship had infact worsened ‘to such an extent that the
respondent currently refuses to sit at the dining table when hunting
guests are present, something she always did in the past’. I
wish to state here and now that this latter allegation remains
undisputed.
[6] I sought to ascertain from the
parties before we went into court on the day of the hearing if they
were going to lead evidence. The parties, through their counsel,
advised me then that they did not intend to and would rely on the
affidavits to which I have made reference above. The result is that
no oral evidence was led before me to determine if the defendant’s
offer of return is bona fide. The rather curious election by the
parties (especially by the defendant who bears the risk of
non-persuasion on this return date) leaves me in the unenviable
position that I was not able to see their versions tested under
cross-examination in the witness box.
Summary of submissions
[7] Mr Corbett
submitted that the defendant, who bears the onus, has not placed any
facts before court showing that the situation has changed for the
better since the RcR order was issued. He added that the offer to
return is a ‘formal’ and ‘mechanical’
recitation intended to meet the requirements of the law and that on
this return date the defendant has not placed before court any fact
establishing her bona fides. According to Mr Corbett, the defendant’s
offer lacks bona fides in that it does not show: (a) what effort was
made by her to improve communication between her and the plaintiff;
and (b) how she proposes to resume a normal marital life with the
plaintiff under ‘reasonable conditions’. Mr Corbett
placed great store by the manner in which the tender was made for the
interference that it lacks bona fides. Given that the tender was made
by defendant’s lawyers to plaintiff’s lawyers, Mr Corbett
posed the rhetorical quotation: Was the plaintiff to accept the
defendant back through the lawyers? Counsel for the plaintiff then
highlighted the fact that since the RcR order issued, the defendant
made no effort to approach the plaintiff to initiate a meaningful
discussion on how to change things for the better. As I understood
counsel, given that the breakdown in the marriage was the consequence
of the breakdown in trust brought about by the defendant’s
improper conduct, it was important for the defendant to do more than
just make a formal and mechanical offer such as she did. I have great
sympathy for this view. I agree with the observation of the learned
author of Hahlo
and Kahn that
‘the plaintiff may reasonably expect greater proof of a real
change of heart where the desertion was constructive than where it
was physical.
[8] According to
Mr. Corbett, the defendant’s offer also falls short of a
serious desire to end the relationship with EH and that a mere
assertion that she has no intention of ever seeing EH again counts
for nothing, if regard is had to the fact that her past promises in
that regard were not true.
Against the
backdrop of my findings that the prospect of violence loomed large in
the marriage (violence attributed by the defendant to the plaintiff);
and that the marriage was a loveless one, Mr Corbett argued that the
tender by the defendant could not possibly be intended for the
resumption of marriage under ‘reasonable conditions’.
[9] Mr. Corbett
referred me to Kagwe
v Kagwe,
a
case in which Geier
J found that it was not in the public interest to preserve a marriage
which, quite clearly, had broken down beyond all repair; and that the
court may in its discretion, dissolve such a marriage in the public
interest. It is common cause that the parties before me had lived
separate lives for over four years without any intimacy.
[10] Mr Corbett therefore sought a
final order of divorce, together with costs, to include the costs of
one instructing and one instructed counsel.
[11] On his part,
Mr. Strydom was firm in the view that the defendant had met all the
requirements for the discharge of the rule nisi
as she had
unconditionally tendered to restore conjugal rights ‘in all its
forms and ways’; and that the plaintiff had failed to
reciprocate by accepting the defendant back. Counsel for the
defendant also argued that the improper association with EH was
foundational to the court’s finding of defendant’s
desertion and that in her affidavit of a tender to return, the
defendant sufficiently undertakes to end that association and to
resume normal marital life with the plaintiff. Mr Strydom strenuously
argued that the plaintiff, who, before the RcR, had left the common
bedroom and still stays away from it, is now the actual deserter as
he had made no effort to normalize relations with the defendant. Mr
Strydom also argued that after the defendant tendered restoration,
the plaintiff was, in law, obliged to accept the defendant back and
that absence of affection for the defendant is irrelevant.
[12] Mr. Strydom
repeatedly pointed out that the state of our common law is that love
between the parties is an irrelevant consideration once the defendant
has tendered to restore conjugal rights.
He also maintained
that just as before, the defendant remains in the common bedroom, has
not left the family home and that, on the contrary, the plaintiff has
not returned to the common bedroom and is now the deserter having
neglected or failed to comply with the legal obligation now falling
on him to accept the defendant back.
[13] Mr Strydom
accordingly called for the discharge of the rule nisi,
with costs,
including the costs of one instructing and one instructed counsel.
[14] Mr. Strydom’s line of
reasoning downplays the stark reality that it was the defendant, not
the plaintiff, whom I had found was the deserter. It is the deserter
defendant, not the deserted plaintiff, who bears the onus of showing
that the offer to return is genuine: the test is not of any offer
made; it is a bona fide offer that obliges the deserted spouse to
receive back the deserter.
[15] It is incongruous to rely on the
plaintiff’s state of withdrawal from the marriage prior to the
RcR being granted – which state of withdrawal persists after
the RcR is granted – to advance the argument that the plaintiff
is the deserter. That state of withdrawal (constructive in nature) is
the product of the defendant’s conduct. It is that conduct
which must be shown to have changed for the better. Bona fides
is a state of mind and of affairs: by both the deserter and the
deserted spouse. It does not seem to me to be reasonable to expect
the deserted spouse to be the one to assume the responsibility of
welcoming the deserter back, unless the deserter demonstrates that
that which drove the husband away from her has come to pass
and that normal married life has, by that fact, become feasible.
[16] To, in the face of an RcR order,
wait until the last day before the dies run out, and by means
of a letter from her lawyers to those of the husband, make a written
offer to restore conjugal rights, is to reduce human relationships to
a condition of cold frigidity which, in my view, was never the
intention of the common law rule which Mr. Strydom during argument
repeatedly advanced was to the effect that love is unimportant in
marriage and that as long as the deserter tendered restoration, the
deserted spouse was obliged to receive the deserter back.
[17] The rationale for the common law
rule, as I understand it, is that marriage is more than just the
sharing of affection and intimacy and that support of each other is
just as important a factor. The reasoning also goes that the older
the parties become, sexual contact may not be as important as when
the parties are relatively young. Mr Strydom placed great accent on
this score. The difficulty confronting him of course is that although
the parties are respectively 58 and 54 years old, the plaintiff still
considers intimacy to be an important aspect of the marriage. Besides
the evidence shows that these are still sexually active individuals
except that they engaged in it with the wrong people. In any event,
it does seem clear to me on the authorities that the circumstances of
each case will determine where the emphasis ought to lie.
[18] Mr. Strydom also ignores the
reality that restoration of conjugal rights must be bona fide before
the deserted plaintiff must receive the deserter back. We must always
remind ourselves that marriage is a union between two human beings
who have fears, expectations and feelings. The approach contended for
by Mr. Strydom frightfully comes close to reducing human emotions to
the sort of irrelevance where humans become robots designed to
perform mechanical functions regardless of the consequences. That
could never have been the rationale underlying the common law.
[19] The plaintiff’s obligation
to receive the deserter back is triggered, not by any offer to
restore conjugal rights, but by a bona fide offer to return. The
defendant, who bears the onus, has not as much as demonstrated that
she took the initiative to meet with the plaintiff to assuage his
concerns about her relationship with EH; or to ascertain from the
plaintiff the sort of steps he would find necessary and or desirable
on her part to deal with his insecurity, to mention only a few
examples. If, in the face of such efforts by the defendant, the
plaintiff showed no interest in allowing the defendant to demonstrate
her bona fides, Mr. Strydom’s refrain that it is the
plaintiff who is the deserter would have borne resonance.
[20] In the case before me, it has
always been common cause that:
the defendant had instituted a
divorce action against the plaintiff and had therein alleged that
the plaintiff acted violently towards her;
that the divorce action was dismissed
on account of dilatory and remiss conduct by her legal practitioners
and that but for that dismissal, the defendant also wished to
divorce from the plaintiff;
the defendant carries on a horse
breeding business at the plaintiff’s farm and desires to
continue with her business on that farm. She is particularly unhappy
about leaving the farm which she feels is what it is today because
of their joint endeavours.
[21] In addition to the above, Mr
Strydom repeatedly argued when I heard evidence to determine the
grounds for divorce, and also on the return date of the rule nisi,
that the plaintiff was the actual deserter and that upon the rule
being discharged, the defendant would be entitled to seek divorce on
the ground of his desertion. The conclusion is unavoidable that the
defendant’s true motive in tendering restitution may not be to
resume cohabitation with the plaintiff, but largely to avoid a final
decree of divorce in order that she may then pursue her ill-fated
divorce action and or to remain on the plaintiff’s farm to
carry on her horse riding business.
[22] It appears to
me that change of heart by the deserter and a commitment to reform
are crucial elements of bona fides.
Lack of bona
fides was
therefore found where a husband who had deserted his wife for twenty
years, tendered to restore conjugal rights so that he could be
financially supported by the wife.
As was aptly put by
Duncan AJ in Sandler
v Sandler:
‘… in
order to restore conjugal rights it was essential for the defendant
to change his manner towards the plaintiff. A mere offer to receive
the plaintiff would not be enough; there would have to exist in his
mind an intention to desist from his former conduct, which had made
life intolerable for the plaintiff. If his intention was to receive
the plaintiff, but to continue his former conduct, then his offer was
not a compliance with the court’s order’
[23] I am prepared to accept that the
common law postulates that given the importance of marriage to our
social fabric, it is in the public interest that an errant deserter
be allowed to mend ways and to return to the marriage and that the
deserted spouse must accept that having entered into a marital union,
he or she has accepted that for the survival of that institution, he
or she may have to live with the past misconduct of the spouse. What
I am not prepared to accept though, is the proposition that a
deserter desiring to return to the deserted spouse is entitled to
return to the marriage regardless of whether she has shown that the
misconduct that had in the first place led to the action for divorce
has come to an end and that she genuinely wants to save the marriage.
That may, as it does in this case, require the deserter dealing with
the emotional hurt that has been inflicted on the innocent spouse and
demonstrating that its cause has come to pass. Therein the defendant
has failed.
[24] Things as they stand on this
return date are no different from what they were when the evidence
was led before me: the defendant had acknowledged a relationship with
EH which alienated her husband’s affection for her. I had found
that she was untruthful about when, how and whether or not it had
ended. I also found that the defendant was emotionally dependent on
EH – a very fertile ground for infidelity. In the latter
respect, I had found that both the defendant and EH did not seem to
appreciate that their association had to end if the defendant’s
marriage with the plaintiff had any chance of being saved. I had also
found that, as the defendant herself suggested, the plaintiff was an
insecure man – a state of mind not helped by her continuing
association with EH without plaintiff’s approval.
[25] Against the above factual
backdrop, the most that the defendant does on the return day is to
tell me in a rather terse affidavit of ‘tender of return’
that she has no intention of continuing the relationship with EH: Not
a word is said by her about how she proposes to return the
plaintiff’s trust in her as far as that goes. There is also no
indication of the steps she had taken to end the association with EH
and that he understands clearly that the two of them may no longer
have any social contact in view of the history of the matter.
[26] The defendant has thus failed to
discharge the onus on this return date and the plaintiff is entitled
to a final order of divorce.
The order
[27] I hereby grant the plaintiff a
final order of divorce, with costs, to include the costs of one
instructing and one instructed counsel.
_______________________
PT DAMASEB
JUDGE-PRESIDENT
APPEARANCE:
PLAINTIFF: A CORBETT
Instructed by BEHRENS & PFEIFFER,
WINDHOEK
DEFENDANT: A STRYDOM
Instructed by THEUNISSEN, LOUW &
PARTNERS, WINDHOEK
Voigts v Voigts (I 1704/2009) [2013] NAHCMD 281 (11 October 2013);