REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 965/2012
In the matter between:
M S S
...................................................................................................................PLAINTIFF
and
N K S
................................................................................................................DEFENDANT
(born K)
Neutral citation: S
v S (I 965/2012) [2013] NALCMD 304 (09 October 2013)
Coram: UEITELE, J
Heard: 20, 21
August 2013 & 03 October 2013
Delivered: 09
October 2013
Flynote: Husband and wife -
Divorce - Malicious desertion - Onus on plaintiff to allege and prove
both factum of desertion and animus deserendi.
Summary: The
plaintiff and the defendant were married to each other, on 11 April
1997 at Windhoek, Republic of Namibia, in community of property. The
plaintiff (husband) instituted an action for divorce against the
defendant (wife). The basis of the plaintiff’s action is
malicious and constructive desertion. In his particulars of claim the
plaintiff alleges that the marriage is in community of property. The
plaintiff further alleges that the defendant shows him no love,
affection, intimacy and denies him marital privileges, that the
defendant interferes with his employment by attending at his
consultancy and humiliating him in front of his colleagues, on
various occasions locked him out of the common home, does not
contribute toward the upkeep, and maintenance of the common home,
employ an overly domineering attitude towards plaintiff in the
household decision, and same is always decided in her favour.
The defendant also
instituted a counterclaim, which was amended. The basis of her
counterclaim is also based on malicious desertion. In her
counterclaim the defendant alleges that the plaintiff refuses the
defendant intimacy and her marital privileges. The defendant further
alleged that the plaintiff stays away from the common home of the
parties for extended periods. The defendant further alleges that the
plaintiff makes decisions that concern both the parties alone and
follows through with them without the defendant’s consent. The
defendant further alleges that the plaintiff is involved in an
adulterous relationship with one Karen Oarabile Kwapa from Botswana.
The plaintiff accordingly prayed for a final order of divorce
alternative an order for the restitution of conjugal rights.
Both
parties filed affidavits in terms of rule 37(6)(b) of the rules of
this Court. In these affidavits the parties make certain concessions
in regard to the claims as set out in their pleadings. The effect of
the concession is that the custody and control of the minor
child is to be awarded to the defendant, subject to the plaintiff’s
right of reasonable access. The defendant in her affidavit in terms
of rule 37 (6) (b) (paragraph 3) alleges that she is no longer
claiming division of the joint estate but her prayer will now be that
of the plaintiff forfeits his benefits arising out of the marriage in
community of property.
The plaintiff offered N$
2000.00 maintenance in respect of the minor children whereas the
defendant is requesting an amount of N$ 10 0000.00maintenance per
child per month and she is further requesting N$5 000.00 per month
towards her maintenance until such a time that she remarries. The
parties are further also not in agreement on how the joint estate
should be divided.
Held that the plaintiff
has failed to discharge the onus resting on him and his claim is
accordingly dismissed.
ORDER
1. The plaintiff’s
claim is dismissed.
2. There shall be
judgment for the defendant for an order of Restitution of Conjugal
Rights and the plaintiff is ordered to return to or receive the
defendant on or before 20 November 2013 , failing which, to
show cause, if any, to this court on the 22 January 2014 at 10h00
am, why:
(a) The bonds of the
marriage subsisting between the plaintiff and the defendant should
not be dissolved;
(b)
The custody and control of the minor children namely:
(i) M N M, a girl born on
01 May 1997;
(ii) F Nd M, a girl born
on 24 February 2003; and
(iii) E M T M, a girl
born on 15 May 2005
is not granted to the
defendant subject to the plaintiff’s right to reasonable access
and visitation.
(c)
The joint estate of the parties is equally divided between the
parties;
(d)
The plaintiff must not pay maintenance in the amount of N$3 000
(Three Thousand Namibia Dollars) per month per child and also to
cover 100% of all the minor children’s scholastic and tertiary
expenses. This includes all costs relating to extra-mural activities,
transportation to and from school and all related costs;
(e) The minor children
must not remain on the defendant’s medical aid and that the
plaintiff will pay for the excess payments in respect of the minor
children.
(f) The plaintiff must
not pay to the plaintiff rehabilitative maintenance in the amount of
N$ 3000 (Three Thousand Namibia Dollars ) until when the joint estate
is equally divided between the parties or for a period of twelve
months from the date of the final order of divorce whichever is the
shorter period
(g)
The costs of suit should not be awarded to the defendant.
JUDGMENT
UEITELE J
INTRODUCTION
[1] The plaintiff
(husband) instituted an action for divorce against the defendant
(wife). The basis of the plaintiff’s action is malicious and
constructive desertion. In his particulars of claim the plaintiff
alleges that the marriage is in community of property. The plaintiff
further alleges that the defendant shows him no love, affection,
intimacy and denies him marital privileges, that the defendant
interferes with his employment by attending at his consultancy and
humiliating him in front of his colleagues, on various occasions
locked him out of the common home, does not contribute toward the
upkeep, and maintenance of the common home, employ an overly
domineering attitude towards plaintiff in the household decision, and
same is always decided in her favour.
[2] The defendant entered
a notice to defend the action. In her plea she denies that she acted
with a malicious, fixed and settled intention to terminate the
marital relationship, more in particular that she shows him no love,
affection, intimacy and denies him marital privileges, that the
defendant interferes with his employment by attending at his
consultancy and humiliating him in front of his colleagues, on
various occasions locked him out of the common home, does not
contribute toward the upkeep, and maintenance of the common home,
employ an overly domineering attitude towards plaintiff in the
household decision, and same is always decided in her favour.
[3] The defendant pleads
that she has endeavored by all means to show the plaintiff love,
affection, intimacy and provide him with his marital privileges as
and when he requests same. She pleads further that the plaintiff is
in fact the one that has recently started to not show her love,
affection and intimacy as he is always on trips and when back in
town, he spends his time socializing with friends. She further pleads
that the plaintiff has always said that he will not mix business with
his family life and as such, the defendant does not attend at his
employment let alone humiliate the plaintiff in front of his
colleagues. She further pleads that she has never locked the
plaintiff out and that the plaintiff has once not slept at the common
home as he went back home after everyone was asleep and did not make
an effort to get the attention of the people in the house in order
for them to open for him. Defendant further pleads that she is in
fact the one that has contributed immensely to the upkeep and
maintenance of the common home particularly because the plaintiff
spends more time away from the common home then is there. Defendant
further pleads that it is in fact the plaintiff that has an overly
domineering attitude towards the defendant and has in the past made
decisions alone even though they affected both parties.
[4] The defendant also
instituted a counterclaim, which was amended. The basis of her
counterclaim is also based on malicious desertion. In her
counterclaim the defendant alleges that the plaintiff refuses the
defendant intimacy and her marital privileges. The defendant further
alleged that the plaintiff stays away from the common home of the
parties for extended periods. The defendant further alleges that the
plaintiff makes decisions that concern both the parties alone and
follows through with them without the defendant’s consent. The
defendant further alleges that the plaintiff is involved in an
adulterous relationship with one Karen Oarabile Kwapa from Botswana.
The plaintiff accordingly
prayed for a final order of divorce alternative an order for the
restitution of conjugal rights.
[5] The plaintiff further
denied the allegations that he maliciously ‘and/or’
constructively deserted the defendant. In regard to the allegation
that he committed adultery he denies the allegation and put the
defendant to the proof of the allegation.
[6]
Both parties filed affidavits in terms of rule 37(6)(b) of the rules
of this Court. In these affidavits the parties make certain
concessions in regard to the claims as set out in their pleadings.
The effect of the concessions is that the custody and control
of the minor children is to be awarded to the defendant, subject to
the plaintiff’s right of reasonable access.
ISSUES FOR DECISION
[7] The parties prepared
a joint report in terms of Rule 37 (5) dated 25 October 2012. In
terms of that report the parties accuse the other of marital
misconduct. The defendant has, however, offered to restore conjugal
rights if this court were to find that she has maliciously deserted
the plaintiff. The parties are also not in agreement as to the amount
of maintenance the plaintiff must pay in respect of the minor
children. The plaintiff offered to pay N$2000 maintenance per month
per child, whereas the defendant is demanding N$10 0000 maintenance
per child per month and she is further demanding N$5000 per month
towards her maintenance until such a time that she remarries. The
parties are further also not in agreement as to how the joint estate
should be divided.
[8] In such
circumstances, it is clear that the main questions which arise for
decision are:
Which party has
succeeded in discharging his or her onus of proving
malicious desertion which would result in the granting of a
restitution order?
Is the defendant’s
offer to restore conjugal rights genuine?
What is the appropriate
maintenance for the minor children?
Does the defendant need
maintenance? and
How is the joint estate
to be dealt with?
THE LEGAL PRINCIPLES
[9] In the case of Kagwe
v Kagwe,
Geier, J said:
‘Three
things must be proved by a plaintiff in the preliminary proceedings
for a restitution order: first that the court has jurisdiction;
second that there has been and still is a marriage; and third, that
there has been malicious desertion on the part of the defendant. The
onus
of proving both the factum
of desertion and the animus
deserendi
rests throughout upon the plaintiff. The restitution order will not
be made if after issue of summons the defendant returns or offers to
return to the plaintiff, for in that case there is no longer
desertion.’
[10]
Hahlo
states
that ‘Malicious desertion is made up of two elements (a) there
must be the factum
of
desertion … (b) the defendant must have acted ‘animo
deserandi.’ He
continues
and argues that there are four forms of malicious desertion in our
law namely actual desertion, constructive desertion, refusal of
marital privileges, and possibly, sentence of death or life
imprisonment.
[11] I will in this
paragraph expand these forms but what I will state in this paragraph
is based on the work of Hahlo:
a) Actual desertion is
where one party actually leaves the matrimonial home with the
intention not to return;
b) Constructive
desertion, takes place when an innocent spouse leaves the matrimonial
home, the defendant with the intent to bring the marital relationship
to an end drives the plaintiff away by making life in common
dangerous or intolerable for him or her. Hahlo proceeds and argue
that three requirements must be satisfied if an action for divorce on
the ground of constructive desertion is to succeed:
- the consortium of
spouse must have come to an end as the result of the plaintiff having
left the defendant;
- it must have been the
defendant’s unlawful conduct that caused the plaintiff to
leave;
-
the defendant’s conduct must have been attributable to a fixed
intention to put an end to the marriage.
[12] It is common cause
that the court has jurisdiction in this matter and that the parties
were married and are still so married.
[13]
In such circumstances, it is clear that the question which arises is
whether the plaintiff has succeeded in discharging his onus
of proving constructive desertion which would result in the granting
of a restitution order.
THE PLAINTIFF’S
EVIDENCE
[14] In support of his
quest to obtain an order for the restitution of conjugal rights the
plaintiff testified that the defendant (i) shows him no love,
affection, intimacy and denies him marital privileges, (ii) that the
defendant interferes with his employment by attending at his
consultancy and humiliating him in front of his colleagues, (iii) on
various occasions locked him out of the common home, (iv) does not
contribute toward the upkeep, and maintenance of the common home, (v)
employ an overly domineering attitude towards plaintiff in the
household decision, and same is always decided in her favour.
[15] The plaintiff
elaborated on his evidence with respect to the allegation set out in
(i) above that the defendant had during 2001 refused to have sexual
intercourse with him. In respect of the allegations set out in (ii)
above the plaintiff testified that they jointly opened a restaurant
and when they had to interview staff to work in the restaurant, the
defendant on a Saturday turned up at his practice and there in front
of his colleagues insulted him and demand that she be part of the
panel which would interview the applicants for positions in the
restaurant. As regards the allegations set out in (iii) above the
plaintiff testified that during February 2012 he was at the Hilton
hotel with friends. Whilst at the hotel he received a sms from his
wife which stated that if he does not get home soon he will sleep
outside. He said that he delayed and got home by around 12 midnight
by the time he got home he was locked out and he went back to the
Hilton and slept at the Hilton hotel on that night.
[16] As regards the
allegation set out in (iv) of paragraph 14 the plaintiff testified
that the defendant did not clean their bedroom. Whenever the
plaintiff raised this issue with the defendant she was hostile
towards him and there were an instance where the defendant said the
plaintiff has hands and can clean the bedroom himself. As regards the
allegations in (v) of paragraph 14 above the plaintiff testified that
there was an occasion where their daughter had to be confirmed and
they wanted to hold a party for the confirmation of their daughter.
The surface was gravel and they wanted to avoid dust when there a
many people, so they discussed the possibility of paving the gravel
surface with interlocks. The plaintiff suggested the cheaper red
‘Chinese Interlocks’ but the defendant objected to the
plaintiff using those interlocks. The plaintiff testified that he
abandoned the idea of paving the surface area and the defendant ended
up paving it with the interlocks she initially objected to. He also
testified that on another occasion he wanted to effect extensions to
the house by designing the girls’ bedrooms each with its own
bathroom. He testified that the defendant objected stating that the
plaintiff was too European. He testified that during November 2012 he
left the common home and is now residing at a sectional title Unit
Eros Park.
[17] In cross examination
the plaintiff was asked when he first experienced marital problems.
The plaintiff replied that he and the defendant married each other
during April 1997. After the marriage he obtained a scholarship and
went to pursue his studies in England and he returned in the year
2000 and when he returned the defendant refused to have sexual
intercourse with him. It was suggested to him that the defendant
explained the reasons of her refusal to him, the reasons being that
because she stayed alone for approximately two years, sexual
intercourse became painful when he returned. He accepted and admitted
that that explanation was given and that they also engaged, albeit on
his initiation the service of a marital counselor and the problems
were resolved.
[18] It was further
suggested in cross examination to the plaintiff that the defendant
would deny that she had interfered with his business because the
plaintiff had made it clear that he does not want to mix his business
with his family matters and that the aspect in which she thought she
had a say related to the restaurant in which she was a co-owner. It
was also suggested that the confrontation that the plaintiff alleges
to have taken place in the presence of his colleagues did not take
place but it was actually over the telephone and it was with the
plaintiff’s cousin that the defendant took up the matter of the
applicants who had to be interviewed for the positions in the
restaurant. The plaintiff did not counter this suggestion. As regards
the incident that the defendant locked the plaintiff out of the house
it was suggested to the plaintiff that he came home when everybody
was asleep and he did not knock or rang the bell for him to be
opened.
[19] It was furthermore
suggested that when the defendant realized the deterioration of the
marriage she attempted to correct matters and even went to the extent
of securing the services of professional counselor but the plaintiff
had shown no interest in trying to salvage the marriage. The
plaintiff admitted that the defendant had sought to mend her was but
had opted for spiritual healing to the extent that in the evenings
she would pray near to his ears and this was disturbing his sleep. He
further testified that because of the lack of sleep he decided to
move out of the common house.
[20] The plaintiff
testified that he does not think the offer is genuine and further
that he is no longer prepared to accept restoration of conjugal
rights offered as it would only be temporary and defendant will
revert to her conduct.
THE DEFENDANT’S
EVIDENCE
[21] The defendant
testified that their marriage although with some challenges was
considerable a very happy one. She testified that she and the
plaintiff have always made decisions together, attended gatherings
together, attending to the needs and expenses of both the children
and the household together. She testified that before she was served
with the summons for the divorce, the plaintiff on a day (she could
not recall the exact day) was laying on the bed, he called her and
said ‘Ndapewa I think we must separate’. She testified
that she thought that it was a joke as everything was well between
them. She testified that during that month, the plaintiff even sent
her a bouquet of flowers. It is only when she received the summons
for the divorce that she realized that the statement that her husband
had made was not meant to be a joke.
[22] The
defendant in her plea and in her evidence denied the allegations made
by the plaintiff against her, she labelled them as baseless, without
substance and untrue. She substantiated her denials by testifying
that she endeavoured by all means to show the plaintiff love,
affection, intimacy and provide him with his marital privileges. As
regards the allegation that she denied the plaintiff his conjugal
rights she testified that the plaintiff had during 1998 left the
country for his studies in the United Kingdom which was for a period
of 2 years. He had at the time left her nursing Magreth, an infant
and when he returned she had to readjust to providing him with his
marital privileges which was at first difficult (she testified that
‘love making proved to be painful and that is why she initially
refused sexual contact). She testified this incident happened
approximately 13 years ago and that they went for psychological
counselling which helped them to restore their sexual live.
[23] The defendant
testified that the plaintiff started showing a loss of interest in
her when he started travelling more frequently particularly to
Botswana and Johannesburg. When he returned from his trips, he would
go socializing with his friends until the very late hours of the
night or in the morning hours. She testified that though they
continued to share a bed even after the institution of the divorce
action against her, the plaintiff started to sleep a distance from.
She testified that she have by all means shown the plaintiff love and
have on numerous occasions attempted to salvage their marital
relationship but notwithstanding her attempts to salvage and
reconcile with the plaintiff, the plaintiff refuses her attempts and
has moved out of the common home.
[24] As regards the
allegations that she interferes with his employment by attending on
his consultancy and humiliating him in front of his colleagues she
vehemently deny that allegation. She testified that the plaintiff has
always maintained that he does not want to mix business with his
family life. She testified that she always stayed away from his work
unless of course attending to a matter but definitely not to
interfere with his work or to humiliate him. She testified that the
occasion referred to by the plaintiff that she went to his work place
and insulted him in front of his colleagues is actually inaccurate.
She testified that when they opened the restaurant they had agreed
that she would be part of the recruiting team. The plaintiff
travelled and left all the instructions for the recruitment with his
cousin. When he returned from the trip they went together to the
restaurant and that is where she questioned him why she was excluded
from the recruitment process when it was not the initial agreement.
She went on to state that after she confronted the plaintiff he
called his cousin and they spoke over the phone. She testified that
there were no colleagues or other staff members of the plaintiff
present when these events occurred.
[25] She also denied the
allegation that she on numerous occasions locked the plaintiff out of
the common home. She testified that the only time that the plaintiff
did not sleep at the common home was when he had gone socializing and
stayed out until very late. She testified that she remembered that
(on the day the plaintiff did not sleep at home) the plaintiff had to
travel to Swakopmund with work the following day, so when she
realized that it was late (at around 21h00) she telephoned the
plaintiff and asked him to come home earlier. The plaintiff replied
that he will be home in thirty minutes, but when by 23h00 he was not
yet home she went to bed. So she testified that when the plaintiff
came home he did not make serious attempts for the people in the
house to open for him as he did not ring the bell which could have
caught the attention of everyone else. She testified that the
plaintiff instead phoned on her mobile phone but because she was
asleep and no one heard the phones ring, no one opened for him. So
she stated that the reason why no one opened for him was not because
she had intentionally locked him out, but it was because she did not
hear the phone ring. She testified that when the plaintiff brought up
that issue she apologized to him.
[26] As regards the
allegations that she does not contribute towards the upkeep and
maintenance of the common home she also denies that allegation. She
testified that the plaintiff and she had always shared their
responsibilities equally until the plaintiff started going on long
trips outside the country and during those times he neglected his
duties. During the times that the plaintiff was outside of the
country she solely had to attend to the upkeep and maintenance of
both the common home and the children including her stepson. She
testified that the situation has intensified now that the plaintiff
has moved out of the common home as she really only ask him for
assistance when she is completely stuck. She testified that the
plaintiff however earns much more than her and has always had a
bigger chunk of the responsibilities same having been shared in
accordance with their means. She testified that in accordance with
her means, she is the one who has immensely contributed to the upkeep
and maintenance of the common home. As regards the allegation that
she has an overly domineering attitude towards him and household
decisions are always in her favour which allegation she also denies.
She testified that in fact, the plaintiff is the one that has an
overly domineering attitude towards her and has made decisions alone
even though they affected the both of them.
[27] She
testified that their marriage was a very blessed and happy one until
the plaintiff started travelling more and spending longer periods on
his trips. Further the plaintiff would on his return socialize with
friends instead of spend time with his family. The above soon led to
a refusal of affection, intimacy and my marital privileges towards
her. The defendant testified that one day whilst cleaning up the room
she stumbled upon a booking for flight tickets. One ticket had the
plaintiff’s details and the other ticket had a female’s
details for which had been booked from Gaborone to Johannesburg. She
stated that when she confronted the plaintiff he just destroyed those
tickets. She further testified that on a given day which she could
not recall the plaintiff out of the ‘blue’ just said to
her ‘Ndapewa my wife I have never committed any adultery except
on one occasion with a certain lady.’
[28] The defendant denied
that the plaintiff informed her of his reason why he is moving out of
the common home. She testified that he went on a trip to Cape Town
and on his return he never came back home. He just telephoned her
from the airport and told her that he is no longer coming back home.
She further stated that she heard for the first time in Court that
her prayer sessions were disturbing the plaintiff, she testified that
he had never discussed that aspect with her. The defendant further
testified that she is still willing to reconcile with the Plaintiff
as she believes that their marriage was founded on solid love, trust,
acceptance, understanding and most importantly faith. She further
testified that her faith and religious beliefs do not allow her to
divorce the plaintiff and testified that she wants to remain true to
her vow to ‘to love the plaintiff till death do us part’
she consequently offered to unconditionally and bona fide
restore conjugal rights to the plaintiff.
[29] The defendant
requested that should her claim to restore conjugal rights fail she
prayed for an amount of N$ 10 000 maintenance per child per month
which amount will be utilized towards the children’s
maintenance. She testified that the children have gotten used to a
luxurious lifestyle which lifestyle can continue as their father will
continue to earn the same and possibly an even better salary. She
stated that the amount of N$2 000 per child per month proposed by the
plaintiff is way too little to cover the children’s monthly
expenses which are as follows:
Groceries including
lunch boxes N$8 000;
Municipal account N$1
700;
Nanny N$1 000;
Toiletries N$2 000;
Hair Maintenance N$1
500;
Extra mural together
with fun day activities per term N$1 500;
Birthday attendance and
gifts N$ 700;
Clothing N$2 000;
Telephone and internet
N$1 300;
DSTV N$ 630;
Transport to and from
school N$4 500;
Petrol N$ 900.
[30] The defendant
further testified that the plaintiff has also maintained her during
their marriage and she has also gotten used to a certain lifestyle
which lifestyle she will not be able to afford on her salary. She
thus also prayed that he pays an amount of N$ 5 000 per month towards
her rehabilitative maintenance which payment should be effected until
such a time that she remarries.
HAS THE PLAINTIFF
DISCHARGED THE ONUS RESTING ON HIM
[31]
I now turn to consider whether or not the plaintiff has discharged
his onus in this matter. When I consider of that aspect I keep in
mind what was said by Van Blerk, JA
when he said:
‘Where
a husband institutes an action against his wife for restitution of
conjugal rights on the ground of malicious desertion, then it is
necessary for the husband to aver in his declaration the factum
of desertion and the animus
deserendi
(that is to say the intention to terminate the marital relationship
without justification therefor). It is also necessary for him to
prove both elements in order to obtain the relief for which he asks.
Unless he is relieved of the burden of proof by admissions made in
the plea.’
[32]
Mr Rukoro who appeared for the plaintiff submitted that the
conduct between parties in general is the determinant of the failure
or continuance of the marital bond. I agree with this submission. He
further submitted that the defendant’s conduct was the cause of
the breakdown of the marital relationship between the parties. Her
conduct, although not constituting adultery is sufficient to justify
a finding of constructive desertion. I have difficulties in accepting
this part of his submission.
[33]
Before I advance my reasons for the difficulties that I have, I find
it appropriate to indicate that for the plaintiff to discharge the
onus resting on him, he must prove that it is the defendant’s
conduct that drove him away from the marriage. The conduct, said
Geier, J in the Kagwe
matter:
‘…need
not to have amounted to a matrimonial offence such as cruelty or
adultery but … it must exceed in gravity such behaviour
vexatious and trying though it maybe, as every spouse bargains to
endure when accepting the other ‘for better or for worse’.
The ordinary wear and tear of conjugal life does not itself suffice’.
[34]
I now return to the difficulties I mentioned in paragraph 33 above.
The defendant contradicted most of the evidence presented by the
plaintiff. It thus follows that I am faced by two mutually
destructive versions. For the plaintiff to succeed he must
demonstrate to the court that the balance of probabilities favour
him. ‘If
however the probabilities are evenly balanced in the sense that they
do not favour the plaintiff’s case any more than they do the
defendant’s, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his evidence is true
and that the defendant’s version is false.’
[35] I am of the view
that in this matter the probabilities are evenly balance and I am not
satisfied that the plaintiff’s evidence is true and that of the
defendant false. I say so for the following reason: The defendant
filed her witness statement on 07 August 2013 and the hearing was
scheduled for 20 August 2013. The plaintiff thus had sufficient time
to consider and deal with the defendant’s evidence, but he did
not contradict her or dispute the larger part of the evidence
presented by the defendant. The only aspect that he denied is the
allegation that he committed adultery with another woman. Even in her
cross-examination the defendant was not shaken or contradicted. I
therefore have no reason to disbelieve her evidence.
[36]
It will be remember that what the plaintiff had to proof is not only
that the defendant constructively disserted him, but that her conduct
which forced him to move out of the matrimonial home is attributable
to a fixed intention to put an end to the marriage. The plaintiff has
not put a shred of evidence before me to demonstrate that defendant’s
conduct was aimed at putting an end to the marriage. I am of the view
that the conduct of the defendant is what has been termed the
‘ordinary
wear and tear of conjugal life’. I therefore find that the
plaintiff has not dischargedthe onus resting on him and his claim for
restitution of conjugal rights can therefore not succeed.
[37]
It is, however, clear that the parties have not lived together as
husband and wife since October/November 2012 and that it is the
plaintiff who has moved out of the common house. After the parties
presented their evidence and closed their respective cases I
indicated to the parties (especially in light of the fact that the
defendant offered to restore conjugal rights, which offer I found to
be genuine and also in view of the fact that it is the ‘…
policy of the courts …
to uphold the sanctity of marriage and not lightly to put an end to
what is the very foundation of the most important unit of our social
life, the family’)
that I will postpone the legal submissions to enable the parties to
seek further professional assistance in the form of marriage
counseling to see whether they can reconcile their differences.
[38]
The plaintiff has indicated that he does not think that any
counseling will be of assistance now and that he will not accept the
offer by the defendant to restore conjugal rights. It thus follows
that from the plaintiff side, the marriage was ‘irretrievably
broken down’ and that there are no reasonable prospects for the
resumption of a joint and further harmonious married life. It cannot
be in the interest of public policy to insist on the maintenance of a
union which only one partner seemingly wishes to perpetuate.
I am thus of the view
that the defendant has made out her case that the plaintiff is the
one who has maliciously deserted her.
Ancillary claims
[39] I now turn to the
other outstanding issues. I will start with the proprietary claims.
In her counterclaim the defendant prayed for a ‘quantified
forfeiture order’ but in her submissions Ms Shikale-Ambodo who
appeared for the defendant conceded that the defendant has not made
out a case to warrant a ‘quantified forfeiture order.’ It
is now a well-established principle of or law that if a marriage in
community of property is dissolved, the community of property takes
place as a matter of law. I will therefore not add or subtract from
the operation of the law and order that the joint estate of the
parties be equally divided between them. The parties must appoint a
liquidator to assist them in the division of the joint estate.
[40]
As regards the maintenance of the minor children there is now doubt
that there is a legal duty resting upon both the parents to equally
maintain their minor children. The plaintiff says he can only afford
N$ 2 000 per month per child, but the defendant is demanding N$ 10
000 per month per child. Parker, J
held that:
‘it
must be remembered that in making an award of maintenance of the
minor child the court takes into account that the burden of
supporting the child is common to both spouses and must be borne by
them in proportion to their means. (See Kemp
v Kemp 1958
(3) SA 736.) And the duty to support should be considered in
correlation with the means at the parents’ disposal. (See Erwin
Spiro, Law
of Parent and Child,
4th ed (1985): p 398.) In the instant case, the means at the disposal
of the parties is their individual income from their respective
remuneration payable by their respective employers. As I have set it
out previously, the defendant’s income is about 24 per cent of
the plaintiff’s. But, as I have observed previously, the
plaintiff is going to be responsible for all the scholastic expenses
of the minor child. Moreover, the plaintiff is going to lose to the
defendant any interest he has in the property. What this means is
that the plaintiff may rent accommodation and pay for the rental or
purchase a dwelling house and most probably will have to service a
mortgage bond repayment in respect thereof. And so the means of the
parties should be considered in correlation with this fact about
housing and the scholastic expenses in order to get the correct
picture discussed in this judgment.’
[41]
In the present matter the plaintiff has offered to cover 100%
of all the minor children’s scholastic and tertiary expenses.
These include all costs relating to extra-mural activities,
transportation to and from school and all related costs. The
plaintiff has furthermore offered to pay for the excess payments in
respect of the minor children medical expenses. According to the
defendant’s evidence the costs of these activities (i.e. the
scholastic and tertiary education expenses, transportation and cost
of extra mural activities) will amount to approximately N$ 6 900. If
the plaintiff has undertaken to cover these costs, that amount must
be discounted when one considers the maintenance demand by the
defendant. I am therefore of the view that in accordance with his
means an amount of N$ 3000 per month per child will be a fair amount.
[42]
As regards the rehabilitative maintenance this
court’s
approach to maintenance, after the marriage is dissolved by divorce
is that a party is entitled to an order of maintenance in his or her
favour if he or she, on a balance of probabilities proves that he or
she needs it.
In
Oberholzer v Oberholzer.
‘Now
the duty to maintain is facultative, it depends upon the reasonable
requirements or needs of the party claiming it and the ability of the
party from whom it is claimed to furnish it.’
[43] The defendant has
testified that she earns N$13 000 per month and that her monthly
expenses are approximately N$16 440 per month. I am thus of the view
that defendant is in need of maintenance and I am also satisfied that
plaintiff is in the position to maintain the defendant. But taking
into consideration that the plaintiff has offered to pay maintenance
for the children, to pay all educational, medical and tuition cost
for the minor children and for the extramural activities of the
children. I am of the view that an amount of N$3000 per month for the
maintenance of the defendant is reasonable.
[44] The defendant claims
maintenance until she remarries. I am hesitant to award maintenance
for an indefinite period and would restrict the maintenance to a
specific period. In view of the order that I made that the joint
estate be divided equally I am of the view that the plaintiff’s
obligation to maintain the defendant must seize when the joint estate
has been fully divided amongst the parties or until when the
defendant remarries whichever occurs first.
[45] In
order to give a complete coherent order, I here repeat the orders
that I have granted:
1.The plaintiff’s
claim is dismissed.
2. There shall be
judgment for the defendant for an order of Restitution of Conjugal
Rights and the plaintiff is ordered to return to or receive the
defendant on or before 20
November 2013 ,
failing which, to show cause, if any, to this court on the 22
January 2014 at 10h00
am, why:
2.1. The bonds of the
marriage subsisting between the plaintiff and the defendant should
not be dissolved.
2.2.
The custody and control of the minor children namely:
(a) M N M, a girl born on
01 May 1997;
(b) F N M, a girl born on
24 February 2003; and
(c) E M T M, a girl born
on 15 May 2005
is not granted to the
defendant subject to the plaintiff’s right to reasonable access
and visitation.
2.3.
The joint estate of the parties is equally divided between the
parties.
2.4.
The plaintiff must not pay maintenance in the amount of N$3000 (Three
Thousand Namibia Dollars) per month per child and also to
cover 100% of all the minor children’s scholastic and tertiary
expenses. This includes all costs relating to extra-mural activities,
transportation to and from school and all related costs.
2.5. The minor children
must not remain on the defendant’s medical aid and that the
plaintiff will pay for the excess payments in respect of the minor
children.
2.6. The plaintiff must
not pay to the plaintiff rehabilitative maintenance in the amount of
N$ 3000 (Three Thousand Namibia Dollars) until when the joint estate
is equally divided between the parties or for a period of twelve
months from the date of the final order of divorce whichever is the
shorter period.
2.7.
The costs of suit should not be awarded to the defendant.
---------------------------------
SFI Ueitele
Judge
APPEARANCES
PLAINTIFF: R. Rukoro
Of LorentzAngula
Incorporated
DEFENDANT: L.
Shikale-Ambondo
Of Shikale &
Associates
MS v NS (I 965/2012) [2013] NAHCMD 304 (09 October 2013);