HENDRIKA MYBURGH versus COMMERCIAL BANK OF NAMIBIA
CASE NO. FA
6/98 Teek, J., et
IN COMMUNITY OF PROPERTY: Woman
married in community
of property -
sue or be sued -Married Persons Equality Act No. 1 of 1996 -Articles
10(3) (no discrimination on grounds of sex), 14(1) (Right to marry
and entitlement to equal rights during marriage and at its
dissolution) and 16(1) (Right to acquire, own or dispose of movable
of immovable property) of the Constitution - Common Law rule that
denied women married in community of property capacity to sue or to
be sued abrogated by the Constitution at date of Independence.
NO. FA 6/98
THE HIGH COURT OF NAMIBIA
the matter between:
HENDRIKA MYBURGH APPELLANT
BANK OF NAMIBIA RESPONDENT
J. et GIBSON, J. et SILUNGWE, J.
on: 1999.03.30 Delivered on: 1999.07.30
is an appeal to the Full Bench against a summary judgment given by
Mtambanengwe, J., in favour of the respondent for N$l 15,927.92, with
interest thereon and an order for costs.
respondent and the appellant were Plaintiff and Defendant,
respectively, in the Court a
Heathcote represents the appellant and Mr Frank appears for the
stated, the facts of the case are that the respondent is a registered
bank and the appellant is an adult female married in community of
property to a Mr Pieter Johan Myburgh (at Okahandja in March 1987).
October 21, 1993, the respondent and the appellant entered into a
written loan agreement under which the respondent "lent and
advanced" to the appellant the sum of N$ 107,139.13, with
interest, repayable by monthly instalments.
5, 6 and 8 of the respondent's particulars of claim allege that -
The Defendant failed to pay her monthly instalments punctually on
due date ...
August 21, 1996, the Defendant was in arrears with her monthly
instalments in the amount of N$43,698.10 and the total amount
outstanding being N$ 115,927.92 therefore became due and payable in
terms of clause 6.1 of Axinexure 'A'.
written demand having been given to the Defendant on 2 September
1996 demanding payment of the outstanding balance, the Defendant
either failed or refused to make any payment to the plaintiff...
the Plaintiff claims :
Payment of the amount of N$l 15,927.92.
his Rule 32(3)(b) affidavit, the appellant's husband deponed in
paragraphs 5 and 6 as follows:
My interest in this matter arose from the fact that I am married in
community of property to the Defendant and any judgment for the
payment of monies will be binding on the communal estate in which I
have a material interest.
Save for denying the correctness of the amount of money allegedly
still indebted towards the plaintiff under the agreement, the
Defendant admits the plaintiffs cause of action and the particulars
founding same as alleged in the Plaintiff s Particulars of claim."
thrust of this matter, as reflected in the Notice of Appeal, is that
Learned Judge erred in finding that the respondent was entitled to
sue the appellant for a contractual debt where the appellant was
married in community of property; i.e that the Learned Judge erred
in finding that the Appellant had locus
be sued; and/or
Learned Judge found that the Appellant is apublica
the Learned Judge had regard to the Opposing Affidavit of the
Appellant in order to determine whether the Appellant is a publico,
not, whereas such allegation should have been made in the
Respondent's Particulars of Claim and confirmed under oath in terms
of the provisions of Rule 32.
considering this matter, the starting point is, of course, the first
ground of appeal. At common law, the general rule is that a woman who
is married in community of property has no locus
standi in judicio. Thus,
actions pertaining to the joint estate must be instituted by, or
against, the husband, in his capacity as its administrator; and
actions concerning the wife personally must be instituted by, or
against, him in his capacity as her guardian. See Sandell
v Jacobs 1970
(4) SA 630 (SWA). And so, irrespective of whether or not she is
assisted by her husband, the wife is the wrong person to sue or be
TPD 643). There are, however, exceptions to the general rule, for
instance, a publica
trader) has locus
standi in judicio in
all matters concerning her trade, business or profession and may sue
or be sued in her own name without her husband's assistance: SA
Mutual Fire & General Insurance Co Ltd v
1970 (2) SA 696 (A) at 710.
on the common law, Mr Heathcote contends (subject to a few exceptions
which, it is said, are inapplicable to this case) that the appellant,
being a woman married in community of property, cannot be sued for a
contractual debt, not even if she were duly assisted by her husband,
on the ground that she has no locus
is further contended that the common law was still applicable at the
time that the agreement was entered into, and when the respondent's
cause of action arose. Consequently, the contention goes on, the
Married Persons Equality Act, Act No. 1 of 1996 (hereafter referred
to as the Act) which came into force on July 15, 1996, is not
applicable to this case, on account of section 2(2) of the Act which
provides that -
The abolition of the marital power by paragraph (b) of the subsection
(1) shall not affect the legal consequences of any act done or
omission or fact existing before such abolition."
his response, Mr Frank, for the respondent, submits, inter
the appellant could be sued pursuant to section 9(5) of the Act as
the summons was issued when the Act was already in operation.
Furthermore, Mr Frank continues, the constitution in effect abolished
the marital power in terms of Articles 10, 14 and 16.
the first place, I propose to examine the provisions of the Supreme
Law which came into force in February 1990. The relevant articles,
which have already been enumerated, relate to Equality and Freedom
from Discrimination (Art. 10 ); Family (Art. 14); and Property (Art.
16). These Articles read (in so far as they are relevant):
All persons shall be equal before the law.
person may be discriminated against on the grounds of sex,
race, colour, ethnic origin, religion, creed or social or ecomic
and women of full age,
without any limitation due to race ... shall
have the right to marry
and found a family. They
shall be entitled to equal rights as to marriage, during marriage
and at its dissolution.
person shall have the right
in any part of Namibia to
own and dispose of all
forms of immovable and movable property individually or in
association with others
and to bequeath their property to their heirs and legatees ... (2)
is provided). These constitutional provisions will now be looked at
10(1) provides for the principle of equality before the law and
confers the right to equal protection and benefit of the law which
right is primarily concerned with differentiation; whereas Article
10(2) prohibits various types of discrimination, including
discrimination on the basis of sex. These two Sub-Articles have
recently been the subject of interpretation by the Supreme Court in
the case of Michael
Andreas Miiller v The President of the Republic of Namibia and the
Minister of Home Affairs Case
No. 2/98 (yet unreported). There, the Court observed that the
approach of our Courts towards Article 10 of the Constitution should
be as follows:
exposition of the Sub-Article concerned an impugned piece of
legislation and is for this reason inapt for the purposes of the
steps to be taken in regard to this sub-article are to determine -
whether there exists a differentiation between people or
categories of people;
such differentiation is based on one of the enumerated
out in the Sub-Article;
such differentiation amounts to discrimination against
or categories of people; and
it is determined that the differentiation amounts to discrimination,
it is unconstitutional unless it is covered by the provisions of
Article 23 of the Constitution.
examination of (i), (ii), (iii) and (iv) under (b) above, vis-a-vis
the case under consideration, unmistakably evinces that there is a
marked differentiation between husband and wife; that the
differentiation amounts to discrimination against the wife on the
basis of sex; and that the differentiation (not being consonant with
the anti-apartheid and the pro- affirmative action provisions of
Article 23) is unconstitutional.
16 does not only guarantee the right of men and women to marry
without let or hindrance, but it also promotes sex equality by
guaranteeing spouses' entitlement "to equal rights as to
marriage, during marriage and at its dissolution." This Article
distinctly outlaws any sex-based discrimination, as does Article
any event, I would venture to say (although this has not been
ventilated in argument), that discrimination which impinges upon
human dignity violates Article 8(1) which guarantees respect for
human dignity. See Kauesa
v Minister of Home Affairs, Case
No. A 125/94 (unreported at p.51); Prinsloo
der Linde 1997(3)
SA 1012 (CC); Thomas
Namunjepo and Others v The Commanding Officer, Windhoek Prison and
The Minister of Prisons and Correctional Services, Case
No SA 3/98.
is important to recognise that inherent human dignity is at the
heart of human rights in a free and democratic society. As O'Regan,
J., aptly observed in S
v Makwanyane, 1995
(3) S 391 (CC); 1995(6) BCLR 665 (CC):
a right to dignity is an acknowledgement of the intrinsic worth of
human beings: human beings are entitled to be treated as worth of
respect and concern. This right therefore is the foundation of many
of the other rights that are specifically entrenched ..."
the right to equality is premised on the notion that every person
possesses equal human dignity.
comfort from Article 66, which makes provision for Customary and
Common Law, Mr Heathcote argues that Common Law rules relevant to
this matter survived until their abolition by section 2(2) of the
Married Persons and Equality Act, supra.
Frank, however, submits that at Independence, and with the coming
into force of the Constitution, the common law, which had limited
the legal capacity of women married in community of property, was
abolished by the Constitution.
order to determine whether or not the relevant common law rules
survived the Constitution, it is necessary to look at Article 66
Both the customary law and the common law of Namibia in force on the
date of Independence shall remain valid to the extent to which such
customary or common law does not conflict with this Constitution or
any other statutory law.
Subject to the terms of the Constitution, any part of such common
law or customary law may be repealed or modified by Act of
Parliament, and the application thereof may be confined to
particular parts of Namibia or to particular periods."
we are here concerned only with the common law, my observations will
naturally be confined to this branch of the law.
66(1) makes it quite clear that for any rule of the common law of
Namibia in force at the time of Independence to have remained valid,
it must not have fallen foul of the Constitution or any other
statutory law. The question which immediately arises is whether the
common law rule in question did or did not violate the Constitution.
In the light of what has already been discussed above, the
categorical answer is that the Constitution was violated with the
result that the said common law rule at once became
clear picture that emerges is that the common law rule that made
women married in community of property victims of incapacity to sue
or be sued was swept away by the Constitution at Independence.
Further, the promulgation of the Married Persons Equality Act is, in
my view, not only a re-affirmation of the Constitutional abolition
of discrimination based on sex, as an abundante
measure for the avoidance of doubt, but that it is also designed to
give content to the Affirmative Action provisions of Article 23(2)
and (3); and to the Principles of State Policy pertaining to the
promotion of the welfare of the people, as enshrined in Article
95(a), whose goal is the enactment of legislation to ensure equality
of opportunity for women who have hitherto been the victims of
special discrimination; and the advancement of persons within
Namibia (inclusive of women) who have been socially, economically or
educationally disadvantaged by the legacy of past discriminatory
laws and/or practices. Another part of the picture is that women
married in community of property have locus
sue or be sued. It follows, therefore, that the learned trial judge
did not err in his finding that the appellant had locus
consequence, I find it unnecessary to consider in any detail the
second ground of appeal as to whether the appellant is a publico
this is now merely of academic interest. However, it suffices to say
that if it were not for the fact that I have found that the
Constitution clothed the appellant with locus
sue or be sued, I would inevitably have come to the conclusion that,
on the facts of the case, she evidently fits the bill of a publico
regards the third ground of appeal, to wit, that the allegation that
the appellant is a publico
have been reflected in the Respondent's Particulars of Claim, and
confirmed on oath in a verifying affidavit, this is now completely
redundant in view of what has been said concerning the first ground.
is a further ground of appeal which hinges on the appellant's
counterclaim. The ground states that the learned Judge held that the
appellant had not complied with the provisions of Rule 32 in setting
out her defence (i.e., counterclaim) to the respondent's claim in
that (although the Learned Judge found that there was evidence that
the respondent had interfered with the contractual rights of the
appellant's husband, he held that there was no evidence of a
contractual relationship between the appellant and the respondent,
whereas there was a contractual relationship in the form
the appellant and her husband and/or the respondent.
appellant's defence (counterclaim) was grounded on the following
entered into sale agreements with the respondent, she was obliged to
insure a truck and trailer ("vehicle") that she had
purchased. She then arranged for insurance cover of the vehicle by
allowing her husband to add it to his (company's) list of vehicles
that he kept insured. During or about April 1995, the respondent
withdrew her husband's overdraft facility on his current account
with immediate effect. The insurance company (FGI Namibia) then
cancelled her husband's insurance policy in respect of the vehicles
previously insured by it. Her husband was unable to obtain any
insurance with regard to the aforesaid vehicle, or to arrange for
alternative insurance in respect of the vehicles that she had to
insure. In her husband's affidavit, he deposed that he verily
believed that his inability to effect alternative insurance was due
to some action taken by the respondent. Subsequent to this, her
vehicle was involved in a collision with the result that it was
irreparably damaged, the damage being in excess of N$ 150,000.00.
is not in dispute that the respondent did interfere with the
contractual rights of the appellant's husband, and the Court a
found. What is in issue is whether the respondent interfered with
the appellant's contractual rights.
Heathcote submits that the evidence deposed to by the appellant's
husband and confirmed by her, clearly indicates that the respondent
interfered with the appellant's right to claim from the insurance
company. He goes on to say that the fact that the husband insured
the vehicle on his insurance policy and paid the insurance premium
is of no consequence. For this reason, it is submitted that a bona
(in the form of a counterclaim) exists which should be adjudicated
upon simultaneously with the claim in convention.
Frank's reply, which, on the facts, is well founded, is that best,
the appellant's husband could only say that he verily believed that
the respondent's conduct caused his inability to arrange for
alternative insurance in respect of the appellant's vehicle and that
the husband's belief is no basis for a counterclaim. "Even if
he were to establish his belief, that belief, by itself, would not
constitute a defence": Caltex
Oil SA Limited v Webb and Another, 1965
(2) SA 914 (N) at 917H. The fact that the appellant confirms the
husband's affidavit is to no avail.
be able to proceed with the counterclaim, all that the appellant was
required to do was to show that, as a result of the respondent's
conduct, she (and not her husband) had not been able to obtain an
alternative insurance cover for her vehicle. This she lamentably
failed to do. It was not enough to prove that the respondent had
interfered with the husband's contractual rights. Indeed, Mr
Heathcote properly concedes that there was nothing to stop the
appellant from insuring her vehicle with another insurance company.
there is no factual basis in support of the alleged counterclaim and
so the Court a
not fall into error in its finding that the respondent had not
interfered with the appellant's contractual rights.
final ground of appeal is that the Learned Judge erred in not
exercising his discretion in favour of the appellant in that (1)
there is indeed a contractual relationship to be inferred from the
alleged facts between the appellant and the respondent; and/or (2)
that the appellant can still raise a plea of prescription against
the respondent's claim (in part or as a whole).
for the first part of this ground, it is uncalled for to consider it
in any detail in view of what I have held in respect of the
penultimate ground, save to say that there are, in reality, no facts
from which the inference sought can be drawn.
to the last part of the ground, Mr Heathcote argues at the outset
that although the point of prescription was not specifically raised
in the opposing affidavits of the appellant, it is a specific ground
of appeal and that, regard being had to the particular nature and
procedure in summary judgment proceedings, the Court is clearly able
and bound to deal with the issue. To prop up his submission, he
draws attention to the case of
Cole v Government of the Union of South Africa, 1910
AD 263 and to section 17 of the Prescription Act, No 68 of 1969
PRESCRIPTION TO BE RAISED IN PLEADINGS
court shall not of its own motion take notice of prescription.
party to litigation who invoke prescription shall do so in the
relevant document filed of record in the proceedings; provided that
a court may allow prescription to be raised at any stage of the
Heathcote points out that the first instalment became due, owing and
payable, on November 21, 1993; that no payment had been made for the
period February 1994; and that the summons was served between
February 10 and April 21, 1997 - a period of more than 3 years after
the cause of action was completed and the debt became due and
Frank's reaction is that the question of prescription is a desperate
attempt by the appellant to avoid summary judgment, and that this is
being raised for the first time on appeal. The Court a
continues, did not deal with it as this was not raised at the
appellant's trial and so the Court could not, in any event, deal
with it mero
Frank contends that the appellant's attempt to raise this issue on
the basis of the late payment of the first instalment, although
ingenious, is clearly fallacious and ignores that the fact that the
latter payments took place, thereby indicating an acceptance of her
indebtedness; and also ignores the fact that even in these
proceedings, it is admitted that the appellant is indebted to the
respondent in terms of the loan agreement already referred to, the
only issue being the amount of indebtedness. As the running of
prescription is interrupted by an express or tacit acknowledgement
of liability by the Debtor and begins to run afresh from the day of
such acknowledgement, it is clear that the defence of prescription
is of no avail to her. See section 14 of the Prescription Act.
Referring to Annexure "B" to the particulars of claim, Mr
Heathcote shows that interest was paid; instalments were paid; and
so also were the arrears. It is thus clear, he asserts, that these
payments, as well as the admission of liability, destroy any hope
that the appellant may have in raising this defence.
already referred to, it was observed that -
duty on an appellate tribunal is to ascertain whether the Court
below came to the correct conclusion on the case submitted to it.
And the mere fact that a point of law brought to its notice was not
taken at an earlier stage is not itself a sufficient reason for
refusing to give effect to it. If the point is covered by the
pleadings, and if its consideration on appeal involves not
unfairness to the party against whom it is directed, the court is
bound to deal with it. And no such unfairness can exist if the facts
upon which the legal point depends are common cause, or if they are
clear beyond doubt upon the record, and there is no ground for
thinking that further or other evidence would have been produced had
the point been raised at the outset."
am in agreement with the observations made in that case. In the
present matter, it is common cause that the defence of prescription
is not covered by the pleadings. Further, facts upon which the legal
point depends are not common cause neither are they clear beyond
doubt. There is no ground for thinking that further or other
evidence would have been produced had the point been raised at the
outset. As I see it, consideration of the legal point on appeal
would, in all probability, cause unfairness to the respondent.
(2) SA 473 (N) at 478 is to be contrasted.
considered the submissions given by both learned counsel on the
point under discussion, I find a great deal of merit in what Mr
Frank has had to say. In any event, Mr Heathcote concedes, properly
in my view, that the defence of prescription is weak. In the
circumstances (inclusive of what has been said in the preceding
paragraph), it is unavoidable that the defence of prescription must
conclusion, I make the following order:
appeal is dismissed with costs.
BEHALF OF THE APPELLANT Instructed
Wyk, Maritz & Partners
BEHALF OF THE RESPONDENT Instructed
T FRANK SC PF Koep & Co