Court name
High Court
Case number
CA 111 of 2009
Title

Nandago v S (CA 111 of 2009) [2010] NAHC 109 (27 September 2010);

Media neutral citation
[2010] NAHC 109














105









CASE NO.: I 1823/2008



IN THE HIGH COURT OF NAMIBIA



In the matter between:








N S
…..............................................................................................................
PLAINTIFF








and








R A H
…......................................................................................................DEFENDANT








Coram: Botes, AJ








HEARD ON: INTERMITTENTLY UNTIL 8
December 2010



ORDER DELIVERED ON: 08 APRIL 2011



REASONS PROVIDED ON: 21 APRIL 2011



________________________________________________________________



JUDGMENT



(Reasons)













BOTES, AJ



INTRODUCTION








[1]
When I dealt with this matter in court, and when I again worked
through the facts of the matter, in preparation of this judgment, I,
due to the extent of the acrimony, that exists between the parties,
the level of which I have never experienced before, could not, but
otherwise think of the introductory paragraphs of Brassey AJ, in MB v
NB
1,
which is clearly also apposite in this matter. As such I have decided
to quote the following from the judgment.








Marriage
is, typically, born out of such love and solemnised with such hope
that its termination by divorce cannot but be tragic, but the death
of this marriage, or at least the manner in which the last rights
have been pronounced over it, represents a tragedy of an especially
painful sort.



So much was rightly acknowledged by
counsel for one of the parties and would, I think, have been evident
to anyone sitting in court throughout the days, sometimes seemingly
endless, when the evidence was presented, challenged and minutely
examined in argument. I cherish no hope that this judgment will
diminish the acrimony between the parties, for I suspect only time
can do this; but, beyond settling the outstanding issues between the
parties (which is off course my primary task), I do entertain the
hope, vain though it may be, that what I say will reduce the risk of
a repetition of this tragedy.”








[2] The trial herein commenced on the
23rd of November 2010 and continued until 8 December 2010.
Thereafter I requested the parties’ legal representatives to
provide this court with further evidence by way of affidavits from
experts in Indian, as well as German law, in an effort to establish
whether it indeed will be possible for any of the parties, if so
ordered, to make the order that this court, eventually, will issue,
in respect of the custody and control of the minor child concerned,
an order of the courts in India and/or Germany. The parties also were
requested to submit their submissions to this Court in respect of the
access rights that they propose, this Court should afford the
non-custodian parent in the event of the custody and control being
awarded to plaintiff and/or defendant. The Registrar of this Court
received the last of the relevant responses during January 2011.








[3] During the actual trial, both
parties, as well as four expert witnesses testified and a substantial
number of exhibits were received in evidence.








[4] The parties’ legal
representatives, on request thereto by the court, also provided the
court with heads of argument on the main issues in dispute. In this
regard I would like to extend this Court’s sincere gratitude to
the legal representatives for their assistance.








[5] It is common cause, due to the
nature of the issues, in dispute, and more specifically the issue as
to the custody and control of the minor child, as a result of
plaintiff’s forced relocation to India, that one party most
probably will become devastated by whatever order I make. It is
evident from the opinions of the experts that both parties have a
deep seated love and affection for the minor child, and that both
parties have a bona fide desire to be awarded the custody and
control of the minor child (under the present circumstances).








THE MARRIAGE AND CONSEQUENCES








[6] The plaintiff, an Indian national,
married the defendant on 8 December 1997, in Calcutta, India.
Although there originally existed a dispute between the parties as to
the marital regime of their marriage, it has become common cause
between the parties that the marriage, so concluded, was one of
community of property. The defendant is a German national.








[7] The parties, immediately, after
their marriage moved to Germany where the defendant was employed as a
TV producer for Germany’s largest TV station. Although the
plaintiff, originally, was unemployed during their stay in Germany,
the plaintiff, being a duly qualified environmentalist obtained
employment at Habitat, Energy, Application & Technology (HEAT),
an international consultancy firm based in Germany. As a result
thereof that plaintiff was seconded to GTZ Namibia by HEAT, the
parties moved to Namibia in June 2002 where the plaintiff was so
seconded. The defendant accompanied the plaintiff to Namibia as an
accompanying spouse, on an accompanying spouse visa. It was decided
and agreed upon between the parties, prior to their move to Namibia,
that the plaintiff will be the breadwinner, as the defendant would
not find work initially due to the nature of his visa.








[8] After their move to the Republic
of Namibia, and while still being committed to the marriage, the
parties, legally adopted the minor child, N , who was born on 10
March 2006, and who is of Damara origin. The adoption of the minor
child was conducted, inter alia, with the assistance of Ms
Waldi-Beate Kubirske, who recommended that the parties were suitable
parents to adopt the minor child.








[9] At the time of the adoption, it
was expected by both parties that they as expatriates would have to
leave Namibia at some stage and return to India. As the defendant was
not employed at the time of the adoption, it was decided and agreed
upon between the parties that defendant would look after the minor
child whilst the plaintiff remained at work.








[10] At the time of the adoption, N
was undernourished and ill. In the efforts of the plaintiff and the
defendant however, she recovered fully and is described by all four
experts, who testified, as a healthy, intelligent and special child.
This makes it even more unfortunate that she, at this point in her
life, is faced with the current situation, which certainly will have
an impact, not only on the plaintiff and the defendant, but also on
N, in future.








[11] After the minor child moved in
with the plaintiff and defendant, the parties had a full time live-in
nanny and a gardener.








[12]
During or about April 2008, the marital relationship
between
the parties deteriorated to such an extent that the plaintiff
demanded divorce. The plaintiff instituted the divorce action against
the defendant on 10 June 2008. Due to the acrimonious relationship
between the parties, the litigation resulted in a lengthy, arduous
and drawn out one.








[13]
When the plaintiff demanded divorce during or about April 2008, she
also, shortly thereafter locked the defendant from the marital home.
Although disputed to some extent, it is evident from the evidence
before me that the plaintiff became the primary caregiver of the
minor child, since late April 2008, and the interim custodian parent,
since 25 November 2008 by virtue of a settlement agreement, which was
reached between the parties, and made an order of court, subsequent
to an application for interim custody, brought by the plaintiff.
2








[14] The plaintiff, in her final
amended particulars of claim, claims for the following relief against
the defendant:








1.1
A final order of divorce on account of the defendant’s
adultery; alternatively



1.2 (a) Restitution of Conjugal
Rights and failing compliance therewith;



(b) A final order of divorce;



1.3 An order that the custody and
control of the minor child be awarded to the plaintiff subject to the
defendant’s rights of reasonable access;



1.4 Payment by the defendant of the
amount of Euro 230,360.32, together with morae interest at the rate
of 20% per annum, into the joint estate;



1.5 Alternatively, an order
directing the defendant to render to the plaintiff an account of all
the transactions from the joint estate for the period October 2002 to
date, duly supported by proper vouchers;



1.6 A debatement of such account;



1.7
A
division of the
joint estate of the parties
upon
the debatement of account, subject to an adjustment in favour of the
plaintiff;



1.8 Costs of suit



1.9
Further and/or alternative relief.”
3



(my underlining and/or emphasis)








[15] The defendant defended the action
and also counterclaimed. In his counterclaim the defendant prays for
the following relief:








(a) (i) An order for the
restitution of conjugal rights, failing compliance therewith;



(ii) A final order of divorce;



(b) A division of the joint
estate
;



(c) Forfeiture of the benefits
deriving from a marriage in community of property
;



(d) Custody and control of the
minor the child be awarded to the defendant, subjected to plaintiff’s
right of reasonable access;



(e) Further and/or alternative
relief;



(f) Costs of suit.



(my underlining and/or emphasis)








[16] Having regard to the aforesaid,
and the evidence produced during the trial, it is evident that the
main disputes between the parties are:



(a) The cause of the breakdown of the
marriage;



(b) Custody and control of the adopted
minor child, born on 10 March 2006, taking into account the eminent
relocation by plaintiff from Namibia;



(c) The dissipation of the joint funds
of the parties by the defendant without the alleged knowledge or
consent of the plaintiff;



(d) The division of the joint estate.








[17]
During the protracted litigation, three rule 43 applications were
brought. Two of these applications were settled between the parties
and one filed by defendant was dismissed with costs by Muller J, on
16 July 2010. Apart from the aforegoing, the defendant also deemed it
fit to launch two separate applications in an effort to obtain a
protection order against the plaintiff in the Magistrate Court. The
first application was brought on an ex-parte basis and a final
protection order was granted on the 17
th
of July 2009. The other protection
application was brought by the defendant during 2010 and a court
order was made on 27 October 2010. The court order in fact was made
by agreement between the parties and the nature thereof clearly
displays and underpins the acquit hostility and acrimony between the
parties.
4








[18] I have decided to deal with the
issues between the parties, as far as possible, separately, and in
the sequence indicated hereinafter.








CAUSE OF THE BREAKDOWN OF THE
MARRIAGE








[19] The plaintiff, as for the grounds
of divorce, in her particulars of claim, alleges that the defendant,
during the subsistence of the marriage between the parties, acted
maliciously with the fixed intention to terminate the marriage
relationship between the parties, in that :








(a)Defendant
failed to communicate properly or at all with the plaintiff;




  1. Defendant failed to support –
    maintain his family at all, since he has only worked for a few weeks
    since 2001;




Defendant failed to support
plaintiff emotionally;



Defendant does not show any
interest in the continuation of the marriage;



On or about 18 April 2008,
defendant left the common property and has not returned;



Defendant has alienated most of the
savings of the parties, saving earned by plaintiff and alienated
without her knowledge or consent;



Defendant committed adultery with
one Margaret Kalo since December 2008.”








[20] Defendant, in his plea to the
claim in convention, in esse denied the allegations.
Defendant, however in his plea, admitted the adultery, but pleaded
that the adulterous relationship could not have been the cause of the
breakdown of the marriage as same was only entered into during
December 2009. Although not originally contained in his plea, the
defendant at the beginning of the trial, asked for the amendment of
his plea to incorporate a prayer for the condonation of his
adulterous relationship. This amendment was not opposed and therefore
granted.








[21] The defendant, in his
counterclaim, alleges, in respect of the breakdown of the marriage
that the plaintiff, during the subsistence of the marriage
relationship, between the parties, with the settled and determined
intention of terminating the marital relationship between the
parties, acted as follows:








1.
Continuously
solicited quarrels and arguments with the defendant, and to such an
extent that the plaintiff was unable to properly communicate with the
defendant.








2. Failed to properly care for and
support the minor child.








3. Continuously belittled the
defendant and to such an extent that the plaintiff was unable to
properly communicate with the defendant.








4. On 17 April 2008, changed the
locks of the common home and the code to the security gate in order
to prevent the defendant from entry to the common home.








5. Refused the defendant any access
to the common home, and refused him any access to his personal
belongings.








6. Informed the defendant in so
many words that she was no longer interested in the continuation of
the marital relationship and that she has instructed a lawyer in
Germany to commence with divorce proceedings against the defendant.








7. Verbally and emotionally abused
the defendant and the minor child.








8. The plaintiff conquently
maliciously and/or constructively deserted the defendant with which
desertion she persists with.”








[22] Both parties in their testimony
in court presented evidence on the grounds reflected in their
particulars of claim. Most of the time in court however was utilised
on the question as to the dissipation of the funds of the common
estate by the defendant, without the permission of the plaintiff, as
well as on the aspect of the custody and control of the minor child.








[23] This is understandable in the
present circumstances, as it is evident from the evidence, that the
parties’ marriage is at an end and there exist no hope of
reconciliation between them at all. In these circumstance no real
reason exists why a restitution order and/or the granting thereof can
have any impact on the future relationship between the parties.








[24] At the beginning of the trial, I,
in chambers, during a meeting with the party’s legal
representatives, requested them to obtain instructions from their
respective clients to ascertain whether the parties, in the
circumstances, will not be amenable to agree that the court, due to
the facts, and the law applicable, can issue a final order of divorce
on the grounds of the defendant’s adultery by agreement between
the parties. However, it seems, as a result of the acrimony that
existed between the parties, no agreement was reached.








[25]
I am of the opinion that the parties, if correctly guided by their
legal representatives indeed would have seen the ultimate benefit of
such an agreement as same would not have had any influence of
whatsoever nature on any of the other claims made by the parties in
the litigation, as it is common cause that the plaintiff contributed
substantially more to the joint estate than defendant. Plaintiff, in
her pleadings, however did not request the court to grant a
forfeiture order in her favour. Although the defendant prayed for a
forfeiture order same, due to his significant lesser contribution to
the joint estate, would have had no effect in practice at all.
5








[26]
It is trite law that there are four grounds of divorce in our law,
i.e. adultery; malicious desertion; incurable insanity, which has
existed for not less than seven years and imprisonment for five years
after the defendant’s spouse has been declared a habitual
criminal. The last two grounds are based on statute whilst the first
two grounds are based on the common law.
6
Desertion can take the form of
actual, as well as constructive desertion.








[27]
Our law of divorce, still being based on the common law, which in my
opinion is completely outdated, is based on the “guilt”
principle and not on the principle of the “marriage breakdown”.
As can be seen, adultery is a ground of divorce at common law. The
plaintiff, in her particulars of claim, requests a final order of
divorce on the basis of the defendant’s adultery. The
defendant, on his part, admitted the adultery, but pleaded that same
was not the cause of the breakdown of the marriage as same only
occurred from December 2009 onwards, and in the further alternative
requested the court to condone his adultery.
7








[28] In respect of the defences to a
claim for a final order of divorce, based on adultery, the learned
author, HR Hahlo, states that:








Defences,
other than mere denial, which a defendant may plead to an action for
divorce, on the ground of adultery are: insanity; mistake; adultery
on the part of the plaintiff; condonation; connivance; collusion and
(quaere) prescription.








The following do not constitute
good defences
to an action for divorce on the grounds of
adultery:








(i) that the defendant was seduced;



(ii) that the plaintiff was absent
for a long time;



(iii) that the plaintiff, without
good reason, refused to afford the defendant the marital privileges;



(iv) that the plaintiff treated the
defendant with cruelty;



(v)
that the adultery
took place after the plaintiff has maliciously deserted the
defendant.
Thus,
where the wife was the culprit, it is no defence for her to show that
she was driven from her husbands home by his cruelty, or that her
husband left her destitute and that she committed adultery in order
to relief poverty;



(vi) ........;



(vii)
........;”
8



(My underlining and/or emphasis)








[29] It is evident from the
authorities referred to by the learned author Hahlo that the
principles alluded to hereinbefore, form part of our common law and
therefore, although in principle, outdated, have to be followed by
this court in the absence of any legislative intervention.








[30] The defence therefore raised by
the defendant, to the plaintiff’s claim for a divorce on the
grounds of his adultery does not constitute, in terms of our common
law, a good defence. The only question that now remains, is to
whether this court, in the exercise of its discretion, is to condone
the defendant’s adultery, as prayed for by the defendant in his
plea.








[31]
In respect of condonation it is trite law that a court has a
discretionary power to condone a party’s adultery. This,
according to the learned author Hahlo, holds true both of an action
for divorce on the ground of adultery and an action for restitution
of conjugal rights, failing which divorce.
9
In this regard, it is accepted that
there are two main
considerations which will influence the court in deciding whether the
plaintiff’s adultery should be condoned; the respective
blameworthiness of the parties; and ‘the interest of the
community at large, to be judged by maintaining a true balance
between respect for the binding sanctity of marriage, and the social
considerations which make it contrary to public policy to insists on
maintenance of a union which has utterly broken down’.








Under the first heading, the court
will consider whether the moral guilt of the spouses is so disparate
that the plaintiff cannot be said to be in equal guilt with the
defendant (in America, the test is frequently referred to as the
“comparative rectitude test”). Under the second heading
the court will consider facts such as the interest of the children of
the marriage, the possibility of reconciliation between the spouses,
and the interest of the plaintiff and his paramour, with special
regard to the prospect of the their marrying respectively if the
marriage between the plaintiff and the defendant is dissolved.








The court is in no way fettered in
the exercise of its discretion. It may condone the adultery of a
plaintiff who is actually living in adultery at the time of the
action. At the same time, “the exercise of the court’s
discretion..... is not a bare formality. The court must be satisfied
that it is in the public interest that its discretion should be so
exercised....”








[32]
It is evident from the evidence presented by both parties, that both
are to blame for the breakdown of the marriage. None of them, on the
facts presented in court, can rightfully say that she or he is
innocent and did not contribute to the demise of the marriage.

The pot therefore is not in a position
to call the kettle black. As such, on the facts before me, it cannot
be said that the defendant is not at least in equal guilt with the
plaintiff in respect of the demise of their marital relationship.








[33]
Having regard to the acrimony between the parties, the fact that they
cannot stand each other, one cannot but conclude that, it certainly
is in the public’s interest, the interest of the parties, as
well as in the interest of the minor child, N, that the marital
relationship between the parties be immediately terminated
.








[34] As such, I have decided not to,
in the exercise of my discretion, condone the defendant’s
adultery and to issue a final order of divorce based on defendant’s
adultery.








THE DIVISION OF THE JOINT ESTATE













[35] As already stated hereinbefore,
the defendant, whom, it is common cause on the evidence produced in
court, contributed significantly less to the common estate of the
parties during the existence of the marital relationship,
incorporated a claim in his particulars of claim for the forfeiture
of benefits derived from the marriage in community of property. The
legal position in respect of the practical consequences of an order
for forfeiture and/or division, which in my experience is not
correctly applied by many legal practitioners in Namibia, is
succinctly described as follows:








Whereas
an order of division, (or no specific order) means equal division,
irrespective of the amounts contributed to the joint estate by
husband and wife, an order for forfeiture of benefits may mean equal
or unequal division, depending on whether the defendant or the
plaintiff has contributed more to the common fund, for an order of
forfeiture, even if this is not expressly stated, amounts to an order
for division of the joint estate, coupled with an order for
forfeiture of the benefits which the guilty spouse has derived from
the marriage. Since the order does not effect benefits which the
innocent spouse has derived from the marriage, the estate will be
divided in equal shares if the guilty spouse has contributed more to
the joint estate than the innocent one, there be nothing on which the
order for forfeiture could operate. If the contributions of the
innocent spouse exceeded those of the guilty one, the guilty spouse
will be deprived of the benefits which he has derived from the
marriage. As Schweiner J. put it in Smith v Smith,








What
the defendant forfeits is not his share of the common property, but
only the pecuniary benefits that he would otherwise have derived from
the marriage…. It in [the order for forfeiture] is merely an
order for division plus an order that the defendant is not to share
in any excess that the plaintiff may have contributed over the
contributions of the defendant.’








In
old law the court would order that the guilty spouse forfeit the
whole or part of his or her own contributions to the marriage. This
is absolute in modern law, where only the excess of the plaintiff’s
contributions over those of the defendant is liable to forfeiture.”
10



[36] Even if this court, after
consideration of all the evidence therefore came to the conclusion
that the plaintiff was the guilty spouse, a forfeiture order issued
in favour of the defendant would serve no purpose. As such, and
having come to the conclusion that a final order is to be granted on
the grounds of the defendant’s adultery, it is not necessary
for me to decide on the guilt of the respective parties. It is
therefore ordered that the estate should be divided.








[37] Apart from the evidence produced
during the trial, on the dissipation of the funds of the joint estate
by defendant without the consent of the plaintiff, no further
evidence from which the value of the estate and/or the extent of the
joint estate can even be remotely inferred, was produced. No
discovery to that extent had been effected.








[38] It is trite law that a court,
depending on the circumstances, has a discretion to decide whether it
should, itself, determine the value of the joint estate or the court
may appoint a liquidator to do so. After the hearing of the matter
during December 2010, I requested the parties to indicate whether
they would be able to amicably agree on the division of the joint
estate or not. Not surprisingly, due to the acrimony that existed
between the parties, it became clear from the responses of both
parties that it is not really a possibility.








[39] As this court, itself, in the
light of the absence of evidence in this regard, is not in a position
to readily determine the distribution, I in these circumstances have
no other option available but to appoint a liquidator to do so. As
such, the parties is granted a period of fourteen days after the date
of the delivery of this judgment to agree on the liquidator to be so
appointed, failing which the President of the Law Society of Namibia
is directed to appoint a suitable qualified liquidator, in
consultation with the respective legal practitioners of the parties.








[40]
No evidence was placed before this court in respect of the date on
which the value of the joint estate must be calculated for purposes
of the distribution thereof. Although it is normally regarded that
the date of the issue of the degree of divorce also is the date upon
which the value of the joint estate is to be calculated, same is not
applicable where the spouses have lived apart for a substantial
period of time before their divorce. In such circumstances, it has
been decided that the spouses’ accumulations since the date of
separation must be regarded as
prima
facie
separate
contributions and/or income earned.
11








[41] It is common cause between the
parties that the “final” separation between them already
occurred on or about 18 April 2008. As from that date, the parties
lived separately and both of them accumulated income and purchased
property from the income so earned after separation, until the date
of divorce. As a result of the fact that the parties lived apart for
a period of approximately three years, since the date of their
separation, it is ordered that the date of separation is the date of
the determination of the joint estate’s value.



[42] This approach, coupled with an
order that the liquidator in accessing the value of the joint estate,
as on the date of separation, must also take in consideration the
monies and/or funds that were dissipated by the plaintiff as well as
the defendant from the common estate before or after the date of
separation without the permission of the other party, in arriving at
the entitlement of the respective parties in respect of the division
of the joint estate, will be just and equitable between the parties.
On the defendant’s admissions the amount that he so
unauthorizedly dissipated is at least the sum of Euro125,000.00.








DISSIPATION OF THE FUNDS OF THE
JOINT ESTATE WITHOUT THE PERMISSION OF THE PLAINTIFF








[43] The plaintiff in her further
amended particulars of claim alleged that:








11.
During the subsistence of the marriage, the plaintiff invested the
following accounts, in joint accounts opened in the names of the
plaintiff and the defendant, alternatively in accounts opened in the
name of the defendant;








11.1 Deutsche Bank, Frankfurt, Acc.
No. 348721- Euro 282,615.00;



11.2 Postbank, Frankfurt, Acc. No.
3200804402 – Euro 10,080.00;



11.3 Standard Bank, Windhoek, Acc
No. 246319380 – Euro 112,800.00;



(hereinafter referred to as the
“joint counts”).








12. During the subsistence of the
marriage, and in particular, between October 2002 and June 2009 –








12.1 The defendant has had sole
administrative control and access to the joint accounts and the
plaintiff had no access to the funds contained in these joint
accounts;








12.2 the defendant, without the
knowledge and consent of the plaintiff withdrew a total amount of
Euro 230,360.32 from the joint accounts and invested these funds in
various investments in his own name.








13. Notwithstanding the plaintiff’s
demand for repayment of the amount of Euro 230,360.32 to the joint
accounts, alternatively to the joint estate of the parties, the
defendant refuses and/or neglects to do so.








14. In the alternative, despite the
defendant’s obligations to do so, the defendant has failed to
render to the plaintiff an account of the monies withdrawn without
her consent and knowledge from the joint accounts for the period
referred to above.”








[44] As a result of this claim, the
plaintiff claims the following relief from defendant, to wit:-



4.
Payment into the joint estate by the defendant of the amount of Euro
230,360.32, together with morae interest at the rate of 20% per
annum;








5. Alternatively, an order,
directing the defendant to render to the plaintiff an account of all
the transactions from the joint estate for the period October 2002 to
date, duly supported by proper vouchers.








6. A debatement of such account.








7. A division of the joint estate
of the parties upon the debatement of account, subject to an
adjustment in favour of the plaintiff.”








[45] In respect of this claim, the
defendant, in his further amended plea, inter alia, stated the
following:








18.1
The allegations herein contained are denied as if specifically
traversed and the plaintiff is put to the proof thereof.








18.2 It is repeated that the
defendant withdrew a total amount of approximately Euro 125,000.00
which was monies to which the defendant is also entitled to, had
contributed significantly towards, and which the defendant withdrew
due to the fact that the plaintiff prohibited the defendant from the
common home and denied the defendant access to many of his personal
belongings in such common home and because the plaintiff threatened
to dispose of many of the defendant’s personal belongings in
the common home at the time, which the plaintiff then did
subsequently dispose of, leaving the defendant with no alternative
but to withdraw monies from such accounts out of necessity and in
order to sustain himself and the minor child.








18.3 The defendant further pleads
that he was entitled to have made such withdrawals referred to above
by virtue of the following








18.3.1 All the investments referred
to are mutual funds to which the defendant has also made a
substantial contribution, especially since and when the parties were
living in Germany and at the time when the defendant was the main
source of income.








18.3.2 The plaintiff receives an
Ausland (foreign) Allowance” of
approximately EUR 2 000.00 per month extra and in addition to
her basic salary.








18.3.3 The plaintiff refused the
defendant access to the common home when she changed the locks and
code to the security gate and in order to be able to survive, the
defendant had no alternative but to withdraw from the mutual funds
and did not withdraw monies from funds exclusively the property of
the plaintiff.








18.3.4 The minor child was, after
the defendant was locked out of the common home, in the custody and
care of the defendant and in order to properly look after and care
for the minor child the defendant was obliged to obtain sufficient
funds for accommodation and otherwise, in order to sustain and care
for the minor child and himself.








18.3.5 The defendant has never had
sole administrative control of any accounts with the exception of the
Frankfuter Fund Bank account which was opened in the defendant’s
name with the plaintiff’s knowledge and consent due to
difficulties for a non-EU resident in opening an account with the
Frankfuter Fund Bank.








18.3.6 For all other accounts the
plaintiff was issued her own personal set of bank cards, PIN numbers
and access codes.








18.3.7 Plaintiff has blocked access
by the defendant to her Standard Bank account in Namibia, to which
the defendant had full access, as well as access by the defendant to
the joint German Deutsche Bank account, before she even learnt of any
of the Defendant’s withdrawals.








18.3.8 Plaintiff refused to pay the
defendant maintenance and vowed to “dry him out”.








18.3.9 In April 2010, plaintiff
blocked the Suezmax Ship Fund, in reaction to which the plaintiff
withdrew the remaining amount of approximately Euro 42,000.00
from the Frankfuter Fund Bank Account (a portion of the approximate
Euro 125,000.00 pleaded supra) in fear of the Frankfuter Fund Bank
account also being blocked by plaintiff, this being the last
account the defendant was able to use to sustain himself
.








20.2 The defendant pleads that any
refusal to account for monies so withdrawn was done at a point in
time when the plaintiff maintained that the monies the defendant had
access to were held by virtue of the marriage being one of community
of accrued gains according to the German Civil Code of 1896,
therefore disentitling the plaintiff to rely on the Married Persons
Equality Act of 1996.








20.3 Plaintiff knew of the amount
of monies so withdrawn, had threatened and tried to block any funds
the defendant may have had access to,
entitling defendant
to do so out of necessity and in order to ensure he had funds
available.








20.4 Alternatively, defendant
pleads
that the monies so withdrawn constituted savings
which he had earned
, irrespective of whether the funds
were or were not held in a joint account.








20.5 Without derogating from the
above it is once again pleaded that, as the spouse who has sacrificed
his career in Germany in order to further the plaintiff’s
career in Namibia and in doing so was without any gainful employment
or regular income for most part of the period that the parties have
resided in Namibia, and as the spouse that was locked out of the
common home and
forced to sustain himself, defendant was
forced to withdraw any monies that were so withdrawn out of necessity
and to survive
.”



(My underlining)








[46] It is common cause from the facts
advanced in evidence that the defendant has, since the marriage of
the parties been entrusted with the parties’ finances and was
in total control of same. The plaintiff’s monthly salary of
approximately N$55,000.00 was, since the parties moved to Namibia,
transferred to the parties’ joint account in Germany at
Deutsche Bank. Although both parties had their own credit cards for
utilisation of the funds in the Deutsche Bank account, the defendant
managed and administered this account. This account, according to the
evidence, was initially the defendant’s own account, and became
the parties’ joint account after the marriage.








[47] An “Auslands”
allowance of Euro 2,000 per month was paid into an account opened by
the plaintiff at Standard Bank, Windhoek. The said account was in the
plaintiff’s name, but defendant, at all material times, had
full access, inclusive of his own ATM card and pin number, to the
Standard Bank account, until June 2008 when plaintiff blocked
defendant’s access.








[48]
During June 2008, and after plaintiff established that the defendant,
without her consent and knowledge, withdrew funds from both of these
accounts, plaintiff blocked defendant’s access to the Standard
Bank account and furthermore requested, in respect of the Deutsche
Bank account, that the account forthwith be conducted with joint
signatory power with immediate effect in June 2008.
12








[49] The defendant, in his plea, as
quoted in length hereinbefore, admits that he transferred an amount
of Euro 125,000.00 from the respective accounts. It is evident from
the defendant’s plea, as well as the evidence adduced in court
by defendant, that these withdrawals were effected without the
plaintiff’s knowledge and consent. The plaintiff, in her
evidence said that she trusted the defendant blindly with the
finances, as he was good in administering same.








[50] As a result of the plaintiff’s
lack of knowledge as to the purpose of some of the investments, as
well as the nature thereof, especially the investments in the private
equity fund and the ship fund, this court, on the facts cannot
establish with any certainty as to what the correct amount is that
defendant withdrew from the common estate of the parties, without
plaintiff’s knowledge. This court, also, as indicated
hereinbefore, do not know what the extent of the joint estate was, on
the date of their separation. It is therefore impossible for this
court to conclude whether the defendant, in effecting the removal of
the funds from the joint account held by the parties, laid his hands
on more than half of the joint estate of the parties to which he is
entitled in law.








[51]
As a result of all these uncertainties, and for the reasons already
alluded to hereinbefore, the court has decided to appoint a
liquidator to liquidate the estate to establish the value of the
joint estate on the date of the parties’ separation on the
terms and conditions, already referred to in the judgment
supra,
as well as forming part of
the order
infra. This,
therefore, will result therein that the liquidator will have to
calculate the value of the joint estate of the parties, taking into
consideration the value of the assets dissipated without
authorisation by any of the parties before or after the date of
separation, in the calculation of their respective entitlements in
the division of the joint estate.








[52] As such, it is therefore not
necessary to order the defendant to repay any specific amount into
the joint account.








THE CUSTODY AND CONTROL OF THE
MINOR CHILD








[53] Before I turn to deal with the
applicable law and the evidence of the experts presented, it is
necessary to first refer to the relevant background of the parties’
circumstances, as well as the adoption of the minor child concerned.
The plaintiff, who was born on 10 December 1970, in Kampur India,
where she lived until she was about three years of age, is an Indian
citizen. In 1987 she moved with her parents to Deli, where she
completed her schooling. Plaintiff studied at the University of Deli
and completed a BA (Honours) Degree in Economics. In 1994, plaintiff
went to the University of Cape Town for the Masters programme in
NSC-MPHIL Environmental Sciences.








[54]
The defendant is a German citizen, born in 1968 in Albstadt Germany.
After finishing his abitur in 1988, he, from 1988 to 1990, was
involved in social services at a hostel, which hosted difficult
youngsters. From 1991 to 1993 Defendant studied journalism, political
science and geography at the Free University of Berlin. He furthered
his studies in political science in geography at the University of
Cape Town during 1994 to 1995.
13








[55] It was during this period, at the
University of Cape Town, where they met and became romantically
involved. Plaintiff and the defendant married in December 1997 in
India, and as defendant found a new employment in Frankfurt, Germany,
the parties moved to Germany where they lived in Frankfurt from 1998
to 2002.








[56] It was also during this period
that the plaintiff, obtained employment with GTZ Proklima as a
project manager with its head office based in Windhoek. As a result
of this employment, the parties decided to uproot from Germany and
move to Windhoek in June 2002. Their move to the Republic of Namibia,
at that point in time was already known to be a temporary one, as it
was expected that the project for which the plaintiff was employed
will be completed during or about 2008.








[57] Defendant accompanied the
plaintiff on an accompanying spouse visa, which originally precluded
him from working in Namibia. He however from time to time obtained
temporary work visas, which he used to earn an income, as a freelance
journalist and producer of inter alia, documentary studies
about Namibia.








[58] The parties, already prior to
their marriage decided that they did not want children of their own.
As they perceived themselves as socially conscious people, and
decided that there are enough children in this world whom they can
provide with a good home and love, who would otherwise not have the
privilege, they decided to, when they are ready to be parents, adopt
a child. According to the evidence of the plaintiff, it was always a
dream of her to adopt. The defendant described this dream of her as a
“mission”.








[59] Although it was originally the
wish of the parties to adopt an Indian child, this wish came to an
end when they first came in contact with N at the shelter where she
was staying.








[60]
Ms Kubirske was the social worker who was responsible for the
adoption of the minor child. After Ms Kurbirske’s report was
favourably received, by the Minister of Gender Equality and Child
Welfare, the parties lawfully adopted N, on the 13
th
of August 2007.14








[61]
When the child moved in with the plaintiff and the defendant she was
under-nourished and ill.
Ms
Kubirske, in her evidence, indicated that she was in such a condition
that they indeed feared for her life. Under the guidance and care of
both parents, the child developed into a highly intelligent and
special child, as described by the parties, as well as the experts
that testified. The plaintiff’s stay in Namibia, unfortunately
has ended, because the offices of her employer in Namibia closed, and
she, as a result thereof, has to relocate to India where she is to
continue with her employment with her current employer from an office
to be established at home. Plaintiff’s temporary work permit is
also directly linked
to her
employment in Namibia with her current employer. As such, the
plaintiff has no choice, but in fact is compelled, to leave Namibia.








[62]
The defendant is currently in possession of a temporary work visa,
due to the temporary employment he obtained at One Africa Television,
which is only valid until the 31
st
of March 2012. No evidence was
produced in court as to whether the defendant intends to apply for
the extension of the temporary work permit, or what the chances are
that same will be renewed.








[63] Defendant, during or about
December 2008, became romantically involved with one Maggie, a
Namibian citizen, who is also employed at One Africa Television.
Maggie and her adopted child, who is approximately the same age as N,
from December 2008, reside with defendant. Defendant and Maggie are
currently engaged in an adulterous relationship. Maggie, on the
evidence before me, was, at the date of the hearing, also still
married. Despite the fact that Maggie (Ms Kalo) was present during
the hearing, she was not called to testify.








[64]
It is trite law that the court, as the upper guardian of minors, is
obliged to consider and evaluate all relevant facts placed before it
with a view to decide the issue which is of paramount importance in
custody and control disputes, i.e. the best interest of the child. As
such, it is trite law that a court in these circumstances has
extremely wide powers in establishing what is in the best interest of
the child concerned, and furthermore that it is not bound by
procedural structures or by limitations of evidence presented or
contentions advanced by the respective parties.
15








[65]
In McCall v McCall
16,
it was stated that in determining what is in the best interest of the
child concerned, the court must decide which of the parents is able
to promote and ensure the physical, moral, emotional and spiritual
welfare of the child. In this regard, it has been stated that the
court is to
inter
alia,
have regard to
the following factors:









  1. the love, affection and other
    emotional ties which exist between parent and child and a parent’s
    compatibility with the child;




The capabilities, character and
temperament of the parent and the impact thereof on the child’s
needs and desires;



The ability of the parent to
communicate with the child and the parent’s insight into,
understanding of and sensitivity to the child’s feelings;




  1. The
    capacity and disposition of the parent to give the child the
    guidance which he/she requires, etc.
    17









[66] In all recent decisions, due to
constitutional developments, the courts emphasize that parenting is a
gender neutral function and that the assumption that a mother is
necessarily in a better position to care for her child belongs to a
past era.








[67]
In this matter, the court however is not only tasked with a custody
and control dispute, but also flowing from that, with the question as
to the relocation of the child concerned, to India, being the country
to which the plaintiff has to return. In this regard it is trite law
that, as to the question of the relocation of a minor child, the
child’s best interest is still of paramount consideration. What
is in the best interest of the child, depends on the facts of the
particular case.
18








[68] In Jackson v Jackson, 2002 (2) SA
303 SCA, Scott JA at 318 E – I stated in respect of the legal
principles applicable in the relocation cases, the following:








It
is trite that in matters of this kind, the interest of the children
is the first and paramount consideration. It is no doubt true that,
generally speaking, where, following a divorce, the custodian parent
wishes to immigrate, a court will not lightly refuse leave for the
children to be taken out of the country if the decision of the
custodian parent is shown to be bona fide and reasonable. But this is
not because of the so called rights of the custodian parent; it is
because, in most cases, even if the access by the non-custodian
parent would be materially affected, it would not be in the best
interest of the children that the custodian parent be thwarted in his
or her endeavour to emigrate in pursuance of a decision, reasonably
and generally taken. Indeed, one can well imagine that in many
situations such a refusal would inevitably result in bitterness and
frustration, which would adversely effect the children. But, what
must be stressed, is that each case must be decided on its own
particular facts. No two cases are precisely the same and, while past
decisions based on other facts, may provide useful guidelines, they
do no more than that. By the same token, care should be taken, not to
elevate to rules of law, the dicta of judges made in the context of
the particular facts and circumstances with which they were
concerned.”








[69]
Maya, AJA
19,
with regard to the factors, the court take into account, in cases
involving the relocation of a minor, in a similar vein, stated the
following:








[10]
In deciding whether or not relocation will be in the child’s
best interests the Court must carefully evaluate, weigh and balance a
myriad of competing factors, including the child’s wishes in
appropriate cases. It is an unfortunate legality of marital breakdown
that the former spouses must go their separate ways and reconstitutes
their lives in a manner that each chooses alone. Maintaining cordial
relations, remaining in the same geographical area and raising their
children together whilst rebuilding their lives will, in many cases,
not be possible. Our Courts have always recognised and will not
lightly interfere with the right of a parent who has properly been
awarded custody to choose in a reasonable manner how to order his or
her life. Thus, for example, in Bailey v Bailey, the Court, in
dealing with an application by a custodian parent for leave to take
her children with her to England on a permanent basis, quoted –
with approval – the following extract from the judgment of
Miller J in Du Preez v Du Preez:








[T]his
is not to say that the opinion and desires of the custodian parent
are to be ignored or brushed aside; indeed, the Court takes upon
itself a grave responsibility if it decides to override the custodian
parent’s decision as to what is best in the interests of his
child and will only do so after the most careful consideration of all
the circumstances, including the reasons for the custodian parent’s
decision and the emotions or impulses which have contributed to it.’








The
reason for this deference is explained in the minority judgment of
Cloete AJA in the Jackson case as follows:
20








The
fact that a decision has been made by the custodian parent does not
give rise to some sort of rebuttable presumption that such decision
is correct. The reason why a Court is reluctant to interfere with the
decisions of a custodian parent is not only because the custodian
parent may, as a matter of fact, be in a better position that the
non-custodian parent in some cases to evaluate what is in the best
interest of a child but, more importantly, because the parent who
bears the primary responsibility of bringing up the child should as
far as possible be left to do just that. It is, however, a
constitutional imperative that the interests of children remain
paramount. That is the “central and constant consideration”.’








[11] From a constitutional
perspective, the rights of the custodian parent to pursue his or her
own life or career involve fundamental rights to dignity, privacy and
freedom of movement. Thwarting a custodian parent in the exercise of
these rights may well have a severe impact on the welfare of the
child or children involved. A refusal of permission to emigrate with
a child effectively forces the custodian parent to relinquish what he
or she views as an important life-enhancing opportunity......








[12] It is also important that
Courts be acutely sensitive to the possibility that the differential
treatment of custodian parents and their non-custodian counterparts –
who have no reciprocal legal obligation to maintain contact with the
child and may relocate at will – may, and often does,
indirectly constitute unfair gender discrimination. Despite the
constitutional commitment to equality, the division of parenting
roles in South Africa remains largely gender-based. It is still
predominantly women who care for children and that reality appears to
be reflected in many custody arrangements upon divorce. The refusal
of relocation applications therefore has a potentially
disproportionate impact on women, restricting their mobility and
subverting their interest and the personal choices that they make to
those of their children and former spouses. As was pointed out by
Gaudron J in the minority judgment in U v U, the leading Australian
case on relocation:








[I]t
must be accepted that, regrettably, stereotypical views as to the
proper role of a mother are still pervasive and render the question
whether a mother would prefer to move to another state or country or
to maintain a close bond with her child one that will, almost
inevitably, disadvantage her forensically. A mother who opts for
relocation in preference to maintaining a close bond with her child
runs the risk that she will be seen as selfishly preferring her own
interest to those of her child; a mother who opts to stay with her
child runs the risk of having her reasons for relocating not treated
with the seriousness they deserve.’








[13] While attaching appropriate
weight to the custodian parent’s interest, Courts must,
however, guard against ‘too ready an assumption that the
[custodian’s] proposals are necessarily compatible with the
child’s welfare’. The reasonableness of the custodian’s
decision to relocate, the practical and other considerations on which
such decision is based, the extent to which the custodian has engaged
with and properly thought through the real advantages and
disadvantages to the child of the proposed move are all aspects that
must be carefully scrutinised by the Court in determining whether or
not the proposed move is indeed in the best interest of the child.”



[70] And as King DJP in Van Rooyen v
Van Rooyen 1999(4) SA 435 at 437 G-J and 438 A said:








Turning
to the application for relocation, two preliminary issues arise. The
first relates to the approach of the Court in matters of this nature.
It is that there is no onus in the conventional sense. The court will
evaluate, weigh and balance the many considerations and competing
factors which are relevant to the decision whether the proposed
change to the children’s circumstances is in their best
interests. The Court will make an assessment on the particular facts
as they concern these particular children; in other words it will
apply individual justice in the sense that all relevant factors, even
the mother’s fundamental right to freedom of movement, will be
assessed in the context of these children’s best interest.








The second preliminary
consideration is the motivation of the mother. Is she genuine in her
belief that her children’s interests will be best served by a
move to Australia or is she primarily influenced by vindictiveness
and spite towards the father after what has undoubtfully been a
hostile and antagonistic relationship during and after the marriage,
centred after the divorce on the children? Because, if the mother is
not bona fide, there is every reason to suppose that she will do what
she can to frustrate the father’s access to his detriment and
that of the children”.








[71]
As already indicated hereinbefore, four experts were called to
testify during the trial. In assessing their evidence, the court is
alive to the fact that “expert opinion is not the mere
conjecture, surmise or speculation of the expert; it is his judgment
in the matter on fact. It is equally clear, that whilst in many cases
a court needs and benefits from an expert’s opinion, the expert
witness should not usurp the function of the court”.
21








[72] The evidence in this matter is
voluminous and due to the acrimony between the parties, contentious.
The pleadings and notices constitute five lever arch files, which
excludes the discovered documents and those submitted in court as
exhibits. The plaintiff and the defendant testified. Both of them
testified for two court days each. Several experts provided reports
that were discovered, but only four experts gave evidence during
trial.








[73] I have decided to first deal with
the expert witnesses who testified on behalf of the plaintiff and the
defendant, relevant to the custody and control aspect before I turn
to the testimony of the parties. As indicated, four experts gave
written reports and testified during the trial. Ms Clair Hearne, a
clinical psychologist, recommended that the minor child’s
custody and control be awarded to plaintiff. Mr Annandale, a clinical
counselling psychologist, recommended that the minor child’s
custody and control be awarded to the defendant. Mrs Sandra van
Schalkwyk, an “educational psychologist” recommended that
the defendant be awarded custody and control of the minor child. A
social worker, Ms Kubirske, who also initially assisted with the
adoption of the minor child, recommended that the defendant be
awarded custody and control of the minor child. As such, I accept, as
submitted by both the plaintiff and the defendant’s counsel,
that it is necessary to investigate the probative value of the expert
evidence and determine which opinion should carry weight with the
court in its ultimate decision.








[74]
Ms Claire Hearne, a clinical psychologist of profession, after she
evaluated both parties, compiled two reports, one on 2 October 2008,
and one on 3 March 2009.
22
Ms Hearne described her clinical
impressions of both defendant and plaintiff as follows:








74.1 The defendant presents himself as
a victim, which is underpinned by the contents of 30 to 40 emails
that Ms Hearne received and perused.



74.2 The defendant is a passive
aggressive person, who is more subtle and calculated.



74.3 The plaintiff is a volatile
person, and she can be extremely offensive.



74.4 Plaintiff will not change as she
“is what she is”, but at least you know what you get.



74.5 Defendant however has a dark side
and there is no indication as what he will do next.








[75] Ms Hearne, conceded during
cross-examination that her last report was compiled, approximately 18
months before the date of the hearing. Ms Hearne however indicated
that she, prior to the trial, during an afternoon spent approximately
a period of two and a half hours with the minor child. Part of it
which was spent in the absence of the plaintiff and some of it
thereafter in the presence of the plaintiff. In the absence of the
plaintiff, the minor child continuously asked Ms Hearne where her
mother is, and when the plaintiff came home the minor child
spontaneously ran to her mother, and in her display of affection
hugged and kissed her. Ms Hearne testified that the plaintiff should
be awarded custody and control of the minor child, for inter alia,
the following reasons:








(a) Although it is accepted that the
concept is not cast in stone, Ms Hearne was satisfied that the
plaintiff indeed was the primary caregiver and caretaker of the minor
child.



(b) Plaintiff is a caring mother and
her relationship with her child has, over time, become clearly loving
and supportive. As such, the child is functioning well in this
relationship and clearly understands the mother-child relationship
that exists between the parties. This results therein that, at times,
the minor child “gets what she wants” from plaintiff.



(c) Plaintiff and the minor child are
comfortable with their relationship, and there indeed exists an
intimate and loving bond between them.



(d) The plaintiff has provided a
suitable support and secure system for the minor child, such as being
present at school events, as well as arranging for activities such as
swimming, dancing and horse riding.



(e) The minor child is of tender age
and being with her mother is very important at this stage. Ms Hearne
indicated that, between the years four to six, it is in the interest
of a minor child, to be with the mother, if possible.



(f) The child, if she moves to India
with the plaintiff, would most probably easily adapt, and the
plaintiff is in a strong financial position, able to support the
minor child and will be able to provide a suitable home and excellent
education for the minor child. As such, it was testified that the
maternal family of the minor child in India will also be able to
provide the necessary support.








[76] Ms Hearne confirmed her previous
observations as contained in her reports and furthermore indicated
that N is a happy talkative and intelligent child who shows no signs
of trauma, distress or abuse. According to Ms Hearne no signs could
be detected, that the conflict and the acrimony between the parents
have affected the minor child, and as such she recommended that in
her opinion same should not be used as a factor when considering what
is in the best interest of the minor child.








[77]
Having regard to the date of her reports, Ms Hearne conceded that she
did not investigate the suitability of the relocation of the minor
child to India. As such, she indicated that in her opinion, the court
should order that the circumstances in India be investigated. Ms
Hearne, during cross-examination, conceded that her evaluation
reports were not fresh reports, but testified that the personality
triads that she observed in both parties had not changed.
23
During her testimony, Ms Hearne
indicated that she agrees with the report of Dr Sieberhagen, a
psychiatrist, dated 10 November 2009, which was used in the rule 43
application brought in 2010, where Dr Sieberhagen provided the
following useful observation of defendant:








However,
Mr Höfelein’s habit of blaming others – his spouse,
the psychologists and the system, and his seeming inability to accept
any responsibility for his role in the disintegration of his
relationship with his estranged wife is of some concern. In the event
of him being granted sole custody and control of his adopted child,
and a problem develops in the future, is he going to blame the system
again? Does this person have the ability to accept responsibility for
his own mishaps in life –
a
necessary quality if he intends to be a successful parent
.”



(my underlining)








[78] According to Ms Hearne, the
defendant is a good parent to the minor child and because of the fact
that the defendant does not have full custody, he is regarded by the
minor child as the “fun parent”.








[79] Ms Hearne testified that the
defendant does not show his emotion openly, and display it in a
rather converted and calculated manner. According to the evidence
produced, Ms Hearne’s main motivation in disqualifying the
defendant was that she was not sure of what defendant is capable of,
describing him as a “dark horse”, and what the minor
child could be exposed to should defendant be awarded custody. This
opinion of Ms Hearne is to an extent corroborated by the portion of
the report of Dr Sieberhagen, referred to hereinbefore. Although the
defendant’s counsel, on various occasions, indicated in court
that Dr Sieberhagen would be called to testify on behalf of the
defendant, it eventually did not happen. No reason for this change of
heart was advanced.








[80] Ms Hearne, in her evidence, was
referred to the contents of the video and audio recordings, handed in
as exhibits by the defendant, during the hearing. Ms Hearne, having
seen some of the videos, and the emails provided by the defendant,
testified that the parties clearly were unnecessarily antagonistic
towards each other, although the antagonism was expressed in
different ways.








[81] As to the allegation that the
plaintiff would not comply with any access order made by this court,
should she be awarded custody of the minor child and relocate, Ms
Hearne testified that she doubts that the plaintiff would not comply
with such an order because the plaintiff, in her opinion, is a honest
and proud person, and as she travels for work, would not risk being
reported for kidnapping.








[82] Mr Mouton, counsel for the
defendant, in argument submitted, due to Ms Hearne’s “outdated
reports”, the fact that she perceived the defendant as a “dark
horse” and unpredictable, which were not contained in either of
her reports, nor contained in the expert summaries delivered, in
terms of rule 36(9)(b), and as she did not have any regard to a
possible intended relocation by the plaintiff to India, that her
unsubstantiated comments in this regard must be ignored especially
since she also, in both her reports stated that:








This
child has a great need for constant contact with both parents.”








[83]
Ms Hearne, during cross-examination, indicated why she did not regard
it prudent to include her perceptions of the defendant, as being a
“dark horse” and unpredictable in her reports. The
reasons so advanced are cogent and acceptable. Insofar as the
criticism is directed at the testimony of Ms Hearne that she cannot
comment on whether the relocating to India
per
se
would be bad for N, she
clearly did so because she did not investigate this aspect herself.
She was not aware of the fact that the defendant’s expert
24,
nor the defendant himself, had no problem with India and the
plaintiff’s ability to, properly care for the minor child
whilst in India. The plaintiff’s evidence in this regard was
never contested by defendant in his evidence in chief, nor during
plaintiff’s cross-examination, by Mr Mouton. I have no reason
to doubt that the defendant, if he was dissatisfied with the
circumstances in India, which he is well acquainted with, in his
quest for the custody and control of the minor child would have
instructed Mr Mouton to challenge same in cross-examination.








[84]
At the end of Ms Hearne’s evidence in chief she was shown
photographs which the defendant took of the private parts of the
minor child, whilst the defendant exercised his right of access, in
an attempt to show that the private parts of the minor child were not
properly clean.
25
I closely observed the reaction of
Ms Hearne when she opened the photographs. It was obvious, from her
reaction, that she, not having seen the photographs before, was
shocked by the explicit detail thereof. Ms Hearne testified that the
taking of such photographs is clearly inappropriate and is indicative
of the defendant’s unpredictable behaviour. Ms Hearne
furthermore testified that the only other time she saw such
photographs was in molestation cases.








[85] Mr Willem Annandale, a clinical
counselling psychologist, testified on behalf of the defendant.








[86]
The following aspects, in respect of his report can be highlighted.

In his approach to the evaluation, he
stated that the divorce and subsequent custody and control
controversy has a long and tumulus history, and that the defendant
started seeing him as a patient since 8 June 2009, seeking emotional
support and a soundboard due to the turmoil. Defendant later
requested, and Plaintiff agreed, to him, becoming officially involved
to do a formal evaluation. It was agreed that Mr Annandale would
conduct an impartial evaluation, without any preconceived ideas. He,
in his report specifically undertook to refrain from perusing other
reports from his previous evaluations, and not be influenced by those
opinions.








[87] In respect of the defendant, Mr
Annandale concluded that defendant has performed unusually well in
the parental role with a good balance between being structured and
being warm and neutering. He has a calming influence on N and shows
empathy and insight regarding her needs. Defendant is somewhat of a
perfectionist and likely to focus on smaller detail.








[88] In respect of plaintiff, he
concluded that plaintiff is very warm and loving, committed to the
cause of adopting children in need, and able to provide a life full
of colour and excitement. She is likely to be quite authorative, less
interested in smaller detail, and may become bored and frustrated
with routines, which she is likely to outsource. She seems well
equipped to balance her own needs and the requirements of a career
with a role as parent.








[89]
Mr Annandale, in his report indicated the following, which I have
decided to quote
verbatim –



Natasha
is showing surprisingly little symptoms in [about the longstanding
conflict between the parents]. Her physical, cognitive and emotional
development is age appropriate and the deficits she had when she was
adopted have been largely overcome. Both parents deserve credit for
that – it is clear that they have both put in an enormous
amount of effort and committed themselves emotionally, financially
and practically.



N has a good self image and clearly
receives a lot of affection. She has a strong bond with both parents,
but perceives Neeta as the primary caregiver. The
evaluation clearly indicated a strongly identification with her
mother
, in terms of total involvement, receiving and giving
positive emotions, and dependence. Negative emotions were mostly
directed towards the father
.








The psychological evaluation
indicated that both Ralph and Neeta are highly competent people and
that both of them have the potential to be competent parents. They
have had a very positive influence on N, who has a strong bond with
them, although a substantially stronger bond with the mother.”



(My underlining)








[90] In respect of N’s cultural
or religious environment, Mr Annandale indicated that the plaintiff
expressed some criticism about defendant, being a white male, and
therefore perhaps less able to provide N with what she needs.
Plaintiff’s concerns according to Mr Annandale may actually
be quite rational
, and were even more pertinent soon after their
separation, when it seemed likely that defendant would be returning
to Germany
and intended taking N with him, where race could
possibly have been a complicating factor
. In this regard
Annandale indicated –








This
scenario has now changed, with Ralph more likely to
stay
for an extended period in Namibia

and
Neeta soon to return home to India. Should N go to India with Neeta,
she would in all likelihood be emerged in her mother’s Indian
culture – in itself not a bad thing, and I found N to be very
keen to go. There is however a strong case to be made out for a child
not being alienated from her culture.








Ralph’s future is by no
means clearly mapped, but it appears as if he is likely to stay in
Namibia for at least two more years, perhaps longer
. Neeta is
definitely going back to India and unlikely to return to Namibia.



(my underlining)








[91] In respect of financial support,
Mr Annandale concluded that, financially plaintiff has a clear
advantage over defendant, but he did not regard that as a critical
aspect since defendant is also able to support the minor child
adequately.








[92] In respect of an adequate support
system, Mr Annandale concluded that –








It
would therefore be quite sad to remove N from this support system,
which I would prefer not to happen, but I also have no doubt that
either of them would be able to create another adequate support
system elsewhere.
My
preference would be for N to stay in Namibia, but if the question was
which parent would be best suited to provide a support system,
somewhere else, I would vote for Neeta
.”
(my
underlining)








[93] In respect of the role of the
mother, especially in young girls, Mr Annandale concluded that (in
this regard) the plaintiff has a slight advantage. According to him
the plaintiff is a good mother and N, currently, has a stronger bond
and identification with plaintiff, but that defendant is certainly
not far behind and has already proven that he provides a very
competent alternative.








[94] In respect of the aspect of not
subjecting, the child to unnecessary moves, Mr Annandale indicated
that, in the event of plaintiff taking N with her to India, that same
implies another major change, as it is unlikely that N will see
defendant again. According to Mr Annandale, plaintiff “has
been refreshingly honest to me about this, and due to the very
confrontational nature of their relationship, her desire to establish
a new life, free from the issues surrounding the divorce, also makes
sense, but I am not yet convinced that it is really in N’s best
interest.”








[95]
In
respect of the importance not undermining the child’s
image of the other parent, Mr Annandale indicated that he is afraid
that the plaintiff made herself guilty of indoctrination, not only in
a subtle way, but also in a very blatant active way. Mr Annandale
however, in my view, correctly indicated that the versions that he
had at his disposal could theoretically be circumstantial and wrongly
interpreted, and may need to be tested in court. As such, he
indicated that if this evidence should be corroborated that same
should count very negatively against plaintiff as custodian parent.
At this point in time, I already wish to indicate that this
“evidence” was not corroborated in court by any other
witness, except insofar as the video and audio recordings presented
in court as an exhibit, showed some inappropriate behaviour by
plaintiff directed at defendant whilst she was filmed and recorded.
Some of these incidents took place in the presence of the minor
child, which is unacceptable. One, however must not forget and lose
sight of the fact that the defendant knew how to push the right
buttons and certainly must have known how the plaintiff would have
reacted if he arrives at her house, armed with a camera to provoke
her and to be ready to record her behaviour. This was also conceded
by Mr Annandale in his evidence in court. It however is further
evident that the severe antagonism was directed by plaintiff at the
defendant and not the minor child.








[96] In his summary and
recommendations, Mr Annandale indicated that



N
provided a very positive picture of both parents, seen through her
eyes.
N
is currently more attached to Neeta, keen to go to India with her,
and if she was the one who had to choose, I see a clear preference in
favour of Neeta
.
She is however still extremely young and clearly unable to comprehend
the full implications of permanently moving to India, or never see
Ralph again.
Her
opinion does however carry some weight
.



(my underlining)








While working through the
complicated issue of the “best interest of the child”, it
was clear that both parents were very capable and that the assessment
was very even, perhaps slightly favouring the mother initially.








I have however decided to recommend
Ralph as custodian parent, based to a large extend on two issues:-









  • The enormous scoped the changes
    likely to occur if Neeta gets custody



  • The extend to which Neeta has been
    antagonistic towards Ralph.









As I said before, I may not have
all the relevant information on hand and my deductions may be proven
wrong, in which case I would be willing to reconsider my
recommendation, but if the court manages to agree with my view on the
above two aspects, then I would urge the court to provide custody and
control to Ralph, with access to Neeta
.








I understand Neeta’s
inclination and circumstances regarding return to India, but
I
am not convinced that there is no other choice
. In
comparison, it appears as if Ralph would also have a far more
lucrative and stable career if he returns to Germany, but he seems
quite content and motivated to try and make a decent living in
Namibia, at least partly for the sake of N...... I do not regard
Ralph as dysfunctional, and it does not seem to be in N’s best
interest to be deprived of her father.”



(my underlining)








[97] In respect of Mr Annandale’s
conclusion, it is to be noted that the defendant’s stay in
Namibia, being only in Namibia on a temporary working visa, his ties
with Germany and the fact that he can, according to the evidence,
earn substantially more than in Namibia, cannot be regarded as
permanent, and as such the real likelihood exists that the minor
child, in any event will be removed from the jurisdiction of this
court. This real likelihood is in fact confirmed in the body of Mr
Annandale’s report.



[98]
During his cross-examination Mr Annandale conceded that he has no
problem with India and that he regards India as a first world country
where the minor child could obtain proper education and that the
plaintiff in India is able to provide a proper and adequate support
system for the minor child. Mr Annandale also conceded that he, for
his recommendations relied mainly on evidence provided by the
defendant, his girlfriend, Ms Kalo, her adopted child Esther and
friends of the defendant. The danger lurking in such an approach is
evident and can easily result in an unintentional one sided approach
to the matter. During his evidence, Mr Annandale, referred to an
email, from one Marianne Nel, dated 13 October 2010. Mr Annandale,
when originally referring to this email only read certain portions
thereof in support of the allegation as to plaintiff’s
antagonism towards the defendant. In the email, the following was
inter alia also
stated:








On
one occasion when Aqeela, my daughter had a play date with N and
Madelene, Ralph sent the Police and someone from Women Affairs over.
N was hysterical and wanted to know by me why her father would not
leave her mother alone. I tried to explain that sometimes grownups
fight over silly things.
She
responded by saying that – ‘Pappa is the one fighting,
not Mamma’. Although, initially I had a stronger bond with
Ralph, his inability to take responsibility and constant bickering of
Neeta (even a year later), despite being the first to move one,
coupled with the fact

that
my daughter has a good friendship with N, eventually led to a
rekindled friendship with Neeta.

Ralph
has not handled this very well as he expressed in a final letter and
now avoids us when ever possible in public.
Also,
I could not see any evidence on N to back Ralph’s accusations
of physical abuse and emotional manipulation by Neeta.

N
is a remarkable and outspoken young girl who is coping surprisingly
well with all this chaos and has a firm character who is a good
influence on my daughter.”
(my
underlining)








Mr Annandale, when originally reading
this email, did not refer to this paragraph, but only read the entire
mail when he was requested by the court to do so.








[99] As to Mr Annandale’s
evidence, that the minor child is unlikely to see the defendant again
due to the antagonism between the parties, and that plaintiff was
refreshingly honest on the issue, Mr Annandale testified in esse
that the plaintiff told him that she will not allow the defendant
access and would exclude him from the minor child’s life.
During questioning on this aspect Mr Annandale indicated that he made
a summary of what was stated to him by the plaintiff during one of
his consultations in this regard. The handwritten note of Mr
Annandale (exhibit BBB) reads as follows:-








Create
good impression, appears rational, loving, balanced. Makes him appear
a bit weak, lazy and neurotic. Compromise unlikely due to fact that
she will leave Namibia for India. States that he may be allowed to
see her holidays, but actually wants to create a new family system,
i.e. marry again, better to exclude him and (as with adoption), Nat
can decide to reunite with him one day as an adult.”








[100] It appears from the contents of
the aforesaid note that Mr Annandale was not informed by the
plaintiff that the defendant would not see his daughter again. To the
contrary in the summary made, of the consultation, it is clearly
indicated that the plaintiff informed Mr Annandale that the defendant
may be allowed to see the minor child during holidays. The evidence
of the plaintiff to which I will refer hereinafter, as well as the
opinion of Ms Hearne, also corroborates this.








[101] Mrs Nel’s email referred
to hereinbefore underpins, not only the existing acrimony that exists
between the parties, but also that the plaintiff was not the only one
that antagonised the defendant in front of N. The defendant also made
himself guilty of similar practices.








[102] The defendant also called Ms
Sandra van Schalkwyk, who was involved in this matter in her capacity
as a therapeutical (educational) psychologist whom conducted play
therapy sessions with the minor child, for the psychological benefit
of the child only.








[103] Ms van Schalkwyk, during
cross-examination conceded that she conducted the consultations
without obtaining the permission of the custodian parent as is
normally required in cases like this.








[104] Ms van Schalkwyk’s
involvement, on her own admissions, was not to provide an opinion as
to whom of the parties should obtain the custody and control of the
minor child concerned. Ms Van Schalkwyk however testified that N has
a strong bond with both her father and mother, but that N perceives
“her family” to be that of the defendant along with
Maggie and Esther and that her play therapy results indicate that the
minor child perceives the defendant as the primary caregiver. Ms van
Schalkwyk further testified that N also regards Maggie as a mother
figure, although, not with the exclusion of the plaintiff as her
mother, but that N regard home as the residence of the defendant,
along with Maggie and Esther. This confusion as to whom the real
mother figure in N’s life is, to which the defendant seems to
have contributed, is inappropriate, as said by all the other
“experts”.








[105] Ms van Schalkwyk testified that
her role was only to provide support to the minor child, not to
evaluate her, and that she apparently never wanted to get involved
with the divorce, but in the end was convinced by the defendant to
provide a report to assist him in the obtaining of a protection
order. Ms van Schalkwyk confirmed that she never consulted with the
plaintiff, but testified to an incident where the plaintiff, having
acted rude towards one of her secretaries, stormed out of her office
with the minor child where she encountered defendant. In her
evidence, in court, Ms van Schalkwyk, surprisingly testified that she
actually did not see or hear what happened in the parking lot between
the defendant and plaintiff. This is contrary to her report where she
stated the following:-








She
once again later harassed Mr Höfelein in the parking lot outside
my practice, shouting the words ‘fucking liar’ at him and
ran away with the child on her arm, was what actually took place.”








[106]
Ms van Schalkwyk did not interact with the plaintiff and according to
her evidence assessed a family relationship during a period of
approximately twenty minutes, when the defendant, Ms Kalo and Esther
came to request her assistance in the protection order. Her evidence,
apart from what she has established during the “play therapy”
sessions, which in part is contradicted by the evidence of Ms Hearne,
as well as Mr Annandale, does not carry any real probative value as
to the question of the custody and control of the minor child. Ms van
Schalkwyk, in court, testified, after having had regard to the
photographs taken of the
genitalia
of the minor child that for
the purposes intended for by the defendant, it is not uncommon, but
quite normal.








[107] Ms Waldi Kubirske, a social
worker of 23 years of practical experience, who assisted the parties
in the adoption of the minor child, testified that it will be in the
best interest of the minor child, not to experience another loss/
abandonment which she might experience with the loss of the
defendant, Maggie and her daughter, Esther, her kindergarten, her
friends, etc, should she be taken to India, and that it would not be
in her best interest should she be taken to India now.








[108]
As regard to Ms Kubirske’s evidence, she admitted from the
outset that her report dated 15 November 2009
26,
was prepared on information provided by the defendant only. This was
as a result of the plaintiff’s refusal to submit her to
consultations with Ms Kubirske to be evaluated, due to a certain
incident that occurred between the plaintiff and Ms Kubirske, whilst
the adoption was still in progress. Her report and opinion therefore,
in my view, for obvious reasons, does not carry much probative value.








PLAINTIFF’S EVIDENCE








[109] I now turn to the relevant
portions of the plaintiff and the defendant’s evidence. As both
of them testified for two court days each, it will be impossible to
summarize the whole of their evidence. As such, I only will summarise
the relevant portions thereof for purposes of this judgment.








[110]
Plaintiff,
in esse testified
that she from the age of 8 years old decided that she one day is
going to adopt a child. As such, she later on in her life decided
that she never will have children of her own, as there already is
enough needy children in the world.








[111] The defendant was her first man
and after they met defendant indicated that he is happy with the idea
of not having children of his own, and also would prefer to adopt a
child. Plaintiff testified that as she is bad with money, she trusted
the defendant blindly, and indicated that defendant indeed, according
to her knowledge, was good in the handling of their financial
affairs.








[112]
Although it originally was her intention to adopt an Indian child,
this idea evaporated when she,
on
one of her visits to an orphanage in Windhoek, met N. According to
the plaintiff N clung on to her and did not want her to leave. As
such, they decided to find out whether N can be adopted and was
recommended to Ms Waldi Kubirske to assist with the adoption.
Plaintiff further testified that during the adoption she became
dissatisfied with the services of Ms Kubirske. They had an argument
as a result of which she also reported Ms Kubirske to the relevant
authority.
27
It was as a result of this that
plaintiff decided not to consent to a further evaluation by Ms
Kubirske as she believed that Ms Kubirske would be biased.








[113] Plaintiff testified that when
the minor child moved into their home, the defendant did nothing. As
such, the defendant did not assist in the preparation of food and
other household chores pertaining to the minor child, although they
had a full time nanny who looked after the child.








[114]
According to the plaintiff, the defendant, in her own words, “

did not move a limb in the house”
and faulted everything.
Plaintiff testified that she did everything to get the defendant to
change his ways and to assist her with the upbringing of the child
and the daily chores involved when she returned from work, but to no
avail. Plaintiff frankly admits that she did, on two or three
occasions, slapped the minor child when she became overwhelmed by the
circumstances. Plaintiff testified that she realised that she was
wrong and requested the defendant to forgive her in this regard. This
is contained in one of the emails that form part of the record.








[115]
Plaintiff testified that when the adoption was in progress,
to
the knowledge of Ms Kubirske,
the
parties’ aim was to leave Namibia in 2008 for India. Ms
Kubirske confirmed this in her evidence. According to the plaintiff,
her whole family structure is in India. Her mother and father, as
well as sisters are residing in India and she therefore has a stable
supportive structure there. In respect of the care for N, it was
indicated that she, during the first year will primarily work from
her home and as such will be able to look after N herself on return
from kindergarten, and if need be, will be supported by her family
members.








[116]
According to the plaintiff, she already has two options for the
schooling of N in India in kindergarten. Two letters handed in during
her evidence corroborated this
.
According to her testimony,
she has no choice, but to leave Namibia for the reasons already
stated hereinbefore.








[117] The plaintiff testified that if
she is granted custody and control, and relocate with N to India that
she will give the defendant all the access that he wants to have if
he wants to visit and that she also will allow the child to travel to
Namibia. Plaintiff furthermore testified that she and the defendant,
during their marriage, together went to India once every year. As
such, the defendant is well acquainted with the background of her
family, as well as the support system available in India.








[118] The plaintiff testified that she
wants N to have contact with her culture and will encourage N to
investigate same. The plaintiff further testified that she was not in
India for the past three years as the defendant prevented her to
travel for holiday purposes, to India, with the minor child.








[119] Plaintiff also testified about
the occasions it was alleged that she abandoned the minor child. What
is obvious from the evidence however is that it will serve no purpose
to put a term on these alleged incidents, the nature of which is in
dispute between the parties, as all these incidents flowed from the
acrimonious relationship that existed between the parties and their
behaviour during these incidents. The plaintiff testified that she,
after the minor child was left with her in her house during April
2008, decided to apply for interim custody and control. As already
stated, hereinbefore, plaintiff admits that she did, on approximately
two occasions, apart from hitting the minor child on her buttocks,
also slapped her in the face. Plaintiff however denies that she ever
pushed a nappy in the face of the minor child as a manner of potty
training. The plaintiff testified that she is what she is and
testified that although they have an antagonistic relationship, that
she believes that the defendant is not a bad person. She however also
testified that when N returns from her visits to defendant that she
will say to her that the defendant said that she (plaintiff) has
crooked teeth and that she is a bad person.








[120] Plaintiff confirms that, on
several occasions when defendant came to collect N, he was armed with
a video camera, which to his knowledge severely provoked her. As
such, it seems that plaintiff decided to provide the defendant with
what he wanted.








[121] According to the plaintiff she
and N are very close, exceptionally happy and that she (plaintiff)
love N “to bits”. Plaintiff testified that a week to ten
days before the trial, Ms Angula, her instructing counsel, called her
to her office and showed her the explicit photographs (explicit in
the sense that a child is requested to expose her most vulnerable
inner self to a photographer on several occasions without a
acceptable reason thereto) of N, which the defendant took of the
child’s private parts. At this point, the plaintiff got very
emotional and broke down. She indicated that the defendant did not
inform her that he took such photographs.








[122] Plaintiff testified that N, at
one stage, had a slight infection, as a result of which the plaintiff
took her to a general practitioner.








[123]
Plaintiff further testified that, shortly after they took the minor
child into their home, and whilst the child was lying naked on the
bed, sleeping, the defendant took a photograph of the minor child.

Plaintiff, according to her got upset,
cried and wanted to know from the defendant what his reason therefore
was. Mr Mouton, during cross-examination, put to plaintiff that the
defendant did so because he wanted to keep the photograph so taken to
remind them as to how the minor child looked when she first arrived
at their house with her “pot-belly” due to her
undernourished state.








[124]
During cross-examination of the plaintiff, Mr Mouton established
that, shortly after the defendant left the common home, the plaintiff
attempted to get him to be removed from the country by revoking his
visa.
28








[125] It also was established by Mr
Mouton during cross-examination that the defendant alleges that some
Euro 28,000-00 was transferred to India to acquire an interest, in it
seems, the plaintiff’s aunt’s flat in Deli. This was
apparently done by agreement between the parties, according to the
plaintiff, to provide for their extensive annual holidays in India.








[126]
In respect of the protection orders obtained by defendant against
plaintiff, it was established that one was issued, as is evident from
the papers filed of record, on an
ex
parte
basis. Plaintiff
testified that her legal advisors advised her that, although she did
not agree with most of the contents thereof, she should not oppose
same. The second protection order was opposed and resulted in an
agreement entered into between the parties.








[127] In respect of the plaintiff’s
upbringing methods of N, it was put to her that the slapping of N
occurred on “numerous occasions”. Plaintiff denied this
allegation and testified that it happened approximately twice.
Plaintiff also was accused of rubbing the minor child’s nose in
the urine on the floor which practice reminded defendant of the
treatment by plaintiff of a dog that she also had. The plaintiff
denied this contention. According to the plaintiff, prior to the
adoption, she and the defendant had their share of trouble and their
relationship was not without its frustration. She however would not
describe it as being a disaster except that she could not do anything
right in defendant’s eyes. It however was put to plaintiff that
defendant will testify that their marriage was all very well until N
came.








[128]
When asked during cross-examination on why she, during 2008, had a
change of heart in respect of the custody and control of the minor
child,
after she previously
indicated to defendant that he can take the child to Germany and in
effect allowed the child to be removed from the common home,
plaintiff responded that when N started to cry and cling to her when
defendant wanted to exit the house, she realised that she have to
fight for the custody and control of the minor child. According to Mr
Mouton defendant alleges that she on that specific day removed N from
him with force, which was denied by plaintiff, who indicated that it
indeed would have been impossible due to the fact that defendant is
much stronger and bigger than her.








[129] In respect of the explicit
photographs taken, it was put to the plaintiff by Mr Mouton that as N
complained about an itching in the vicinity of her private parts, the
defendant and Ms Kalo, after examination, established that her
private parts were not properly clean. As such, the photographs were
taken as they “felt something was wrong”.








[130]
The plaintiff in her testimony made a good impression on the court.
She was not evasive in the answering of the questions and she also

showed genuine remorse when she
testified to emotional aspects, which will be of concern to any
caring mother. It was also evident from her demeanour in court that
she has an offensive personality. After having had the opportunity to
observe her in court throughout the trial, as well as in the witness
box for a period of approximately two court days, I am in agreement
that the plaintiff indeed has the attributes and personality as
testified to by Ms Hearne and to an large extend also corroborated by
Mr Annandale.








DEFENDANT’S EVIDENCE








[131] The defendant testified that he
and the plaintiff had a good relationship until after N came from the
orphanage. According to defendant plaintiff then changed as she was
strange and radical, whilst the defendant tried to remain calm. The
plaintiff would slap the minor child, at least three times a day.
That was how the plaintiff indicated she was raised. When the child
urinated on the floor, the plaintiff would push her face into the
urine. Plaintiff also pushed soiled pampers into her face. Defendant
furthermore testified to the problem that they have experienced with
the adoption and also related to the fallout which the plaintiff had
with Ms Kubirske. According to defendant’s evidence, the
plaintiff wanted to take N back to the orphanage, but he, however
refused to do so as he insisted that it was their child and said to
plaintiff that she cannot be returned like a coffee machine. This
version of the defendant like many other versions, he testified on,
was not put during cross-examination to plaintiff to deal therewith.
Defendant testified that he had his occasional jobs, that he looked
after and took care of N, that he took her out to meet other children
and that he in general was the person who took care of her. This also
was not put to the plaintiff to deal therewith in cross-examination.








[132] In respect of the incident where
the plaintiff allegedly forcefully removed the minor child from
defendant, as was put to the plaintiff in cross-examination,
defendant testified that the plaintiff whilst holding on tight to the
minor child indicated to him that the defendant is not going to leave
with N. Plaintiff then, apparently realising that he is not going to
concede to her request, whilst putting her arms around the minor
child started to scream for help. The defendant then decided to
leave. This version contradicts plaintiff’s original version as
to the forceful removal of the child.








[133] In respect of the first
protection order, defendant testified that he did so on advice of his
then lawyer as he had to defend himself and also because plaintiff
maltreated N which maltreatment started from the period that N
arrived.








[134] Defendant also testified as to
why it was necessary to involve the assistance of the police on two
occasions in an attempt to get the plaintiff to strictly adhere to
the times set for his visitation rights. The defendant furthermore
testified at length as to the recommendations made to and by the
parties in respect of the appointment of psychologists and/or even
psychiatrists to assess the parties, as well as the plaintiff’s
and/or her legal practitioners answers to these requests. In this
regard, defendant testified that after Ms Hearne’s first
report, he followed up her recommendation because he did not
understand it. Defendant said that he did not understand how Ms
Hearne could describe the plaintiff as the primary caregiver as he
did not work, cared for the child and according to him, the plaintiff
took the child from him with force. The defendant also dealt with
exhibit X, being an email addressed to the plaintiff’s sister,
dated the 25th of August 2008. Paragraph 4 of the email
reads as follows:-








However,
unless it could be “proven without doubts” that Neeta is
psychological compromised to an extent that it would harm the child,
I might as well loose N to Neeta anyway. In eight out of ten cases
where the assessors ”merely recommend” that the child
should stay with the father, the judges gives it still to the mother.
A lot would also demand on which judge is dealing with our case,
whether it is a more liberal or conservative minded person. The
majority of Namibian judges, however, are the conservative types. He
also said that I could consider my case lost if Neeta actually
accused me in court of having abused N.
My
only chance with that regard would be to come up with this issue
beforehand from my side and put Neeta’s suspicion as part of
her irrational behaviour.








The defendant, in response to this
paragraph indicated that his previous lawyer gave him such advice and
it was indicated to him that he could lose his case if the plaintiff
can prove that he abused N.








[135] In a previous email, dated
Wednesday May 7, 2008 (exhibit V), defendant inter alia indicated
to the plaintiff’s sister the following: -








Seeta.
All indications are that Neeta has an abused related past. She might
not even be aware of it. She might have been too young to remember or
live in denial. The likelihood is high that with N’s adoption
this past unconsciously surfaced. Neeta might identify herself with
N. She wants to protect N from me, her father.....



Tears are rolling while I am
writing this. But I am desperate and can only helplessly watch my
life and world collapse. Something horrible might have happened to
the person I love and she herself lives in denial and continues her
“normal life” with a straight face as the strong woman we
all know. And I cannot do anything.








On the other hand I am truly
convinced that Neeta will not (physically) harm her. She loves N.

And she wants to “protect her” from me! Probably,
their world is now (without me) an absolutely happy world.
And
Neeta might even treat N much more relaxed. But which implications
may it have on N. What emotional harm can be afflicted on her......








From a legal point of view my
prospects to win a case against Neeta over N’s custody are
rather bleak. It would be extremely difficult to prove in court that
N has a psychological problem, especially since she behaves
completely “normal” otherwise. And with regard to Neeta’s
debatable methods to raising N, Namibian judges would most likely
laugh at me as much as your parents did.....








Yesterday evening after this
disastrous meeting the psychologists she [Neeta] wrote me an email to
say that she was sorry but she “had to do this” not to
raise any false hopes. She wrote that she wishes me no ill but it was
clearly over. I did not reply. And this morning I found this in my
mail box –



Last
night after a very long time I could not sleep well. I think I did
you, myself and our relationship wrong by being so negative
yesterday. I am sorry. I am still struggling to understand how we can
take things forward. Heidi did not help and that is the truth. If you
think and want to discuss with me, lets meet for lunch or something,
let me know.








.......In this condition I am
surely not capable to look after N anyways so I am somehow glad that
she is with Neeta.”



(My underlining)








[136] The defendant referred to
exhibit U, a letter that he said he opened long after he
received it. This letter, according to the defendant is to be
interpreted as an intention on behalf of plaintiff to abandon N, as
she provided the defendant, in a rather emotional letter addressed to
the minor child, permission to take the child to Germany.








[137] The plaintiff also testified as
to the contents of exhibit T, and indicated that same was written
during the period that the plaintiff had to go to Zimbabwe for
approximately a week during which period she left the minor child
with him. After she came back she left for India after about two
weeks whilst the minor child stayed with him.








[138] The defendant testified that he
does not have any reason to return to Germany as he made a lot of
friends and due to his relationship with Ms Kalo, also has a family.
He testified that Esther, the minor daughter of Ms Kalo, also is an
adopted child.








[139] Defendant in his testimony
further admitted that he took assets from the common estate without
the plaintiff’s knowledge and consent. In this regard he
admitted that he took the amount of Euro 125,000-00 of which he
approximately, at the time of the trial had Euro 15,000-00 left. This
amount is kept in his brother’s account in Germany. Defendant
further testified that he started to work from August 2008 and that
it was very difficult for him to get employment in Namibia due to his
field of expertise but he was fortunate enough to find employment
with One Africa Television.








[140] Defendant furthermore testified
that he can easily be employed in Germany and this also is confirmed
in exhibit QQ12, being a letter from Kolben-Seeger GmbH & Co KG.
In this exhibit it is also indicated that the monthly salary he can
earn in Germany is far in excess from his present earnings in the
Republic of Namibia.








[141] In terms of the employment
agreement (exhibit QQ5-9) it is evident that the defendant is
employed as an independent contractor in terms of the agreement
entered into with One Africa Television (Pty) Ltd. Either party has
the right to terminate the agreement by giving one calendar month’s
notice.








[142] In cross-examination, defendant
confirmed the alleged maltreatment of the minor child and indicated
that the hitting took place approximately three times a day and apart
from the potty training procedure also included a constant shaking of
the minor child by Neeta. According to defendant, he did not know
when the hitting stopped because “I was locked out of the house
before that”.








[143] During the cross-examination of
the defendant the defendant’s credibility was called into
question in inter alia the following respects:









  1. Defendant testified that the
    plaintiff from the beginning, when the child was placed in their
    care, thrice a day slapped the minor child in her face, shook her
    and abused her. Not only was this, not put to the plaintiff in
    cross-examination, but also strangely enough, no evidence of this
    was ever seen by the experts. In my view, it is highly improbable
    that if a child of such a tender age is maltreated and abused, as
    the defendant alleges the plaintiff did, that none of the experts
    would have discovered any signs of same during their evaluations.










  1. Defendant, in his evidence admitted
    that he did not inform Ms Kubirske of this maltreatment as he wanted
    the adoption to go through and he thought that he was trying to
    protect the minor child. However, in all the applications to court,
    including the rule 43 applications the defendant insisted that the
    plaintiff was inhumane towards the minor child. This version however
    is contradicted by the contents of the email to the plaintiff’s
    sister on 7 May 2008 wherein defendant clearly stated that he was
    convinced that the plaintiff would never physically harm the minor
    child (exhibit V page 5).










  1. Defendant furthermore testified that
    the plaintiff never apologised for her behaviour. Counsel for
    plaintiff showed defendant an email from the plaintiff addressed to
    him in which, plaintiff apologised for her behaviour. The only
    response the defendant had was that he called in question her
    motivation to do so (exhibit WW page 16-19).










  1. Defendant testified that he at all
    times from the onset wanted to adopt children. Mr Annandale however
    testified that the defendant indicated to him that adoption was
    actually the plaintiff’s dream and not his.










  1. Defendant, in the presence of Ms
    Kalo, on several occasions took photographs of the minor child’s
    private parts in an attempt to prove that the plaintiff neglected
    the minor child. The defendant, as submitted by Ms Chase, however
    failed to mention that he took the photographs on his access
    afternoons, immediately after he collected the minor child from
    kindergarten. It eventually, not through the actions of the
    defendant, but through the actions of plaintiff, who took the minor
    child to a medical practitioner, was discovered that the minor
    child, at one stage, suffered from a minor infection. The defendant
    failed to mention the fact that he took these explicit photographs
    to the plaintiff (exhibit YY1-3).










  1. The version of the defendant that the
    plaintiff, during April 2008, took the child from him by force is to
    say the least highly improbable and questionable.










  1. The
    defendant testified that he removed an amount of euro 125 000.00
    between April 2008 and April 2010 without the plaintiff’s
    knowledge. His motivation therefore was that he was destitute. This
    allegation of being destitute is not true as defendant, immediately
    after he was locked from the house, accessed the accounts of the
    parties and withdrew large sums from same. Defendant, under oath,
    indicated in a Rule 43 application, during 2010, that he was
    destitute.
    In this
    application, he stated that ‘after being locked out from my
    house, and left destitute, I manage to establish my own registered
    business from which I earn approximately N$ 15 000.00 gross
    every month.’
    29










  1. In contrast the defendant in the
    previous Rule 43 application dated 27 August 2008 stated the
    following at paragraph 11.1:









I
admit that due to my accompanying spouse visa I am not entitled to
work in Namibia. I however strongly state that I am most certainly
willing to work. In fact, I have frequently obtained work visas in
order to work as freelancer. Since 2001 I have earned approximately
Euro 143 900 (approximately N$ 1.8 million) which amount to an
average annual earning of approximately N$ 258 000.00)”









  1. In further contrast in the report of
    Ms Kubirske used in the Rule 43 application this year but dated 15
    November 2009, the following is stated at Bundle 4 p 162 par
    10.1
    :









10.1
EMPLOYMENT AND FINANCIAL POSITION








He is still working on the basis of
a self employment work permit for his company registered under the
name of “Ralph Höfelein Media Production” which was
registered on the 13/08/2008. He issues an invoice to One Africa
Television on a monthly basis and the money is transferred into his
account. His work permit reference number is: W3527/2009 and is valid
until the 31st of March 2010. (See attached proof of work
permit). Besides One Africa Television he is also earning through
other projects with his company. His latest film will be finished
still in this month (November) and earning of approximately another
N$ 50 000.00 will come in.








According to Mr Höfelein he
has a decent income and the large part is on a regular basis and
another part based on contract work and always the option to take up
a well-paid open job offer with a reputable company if need be.








He stated that he has a significant
amount of cash savings, investments, pension funds and life
insurances to the value of approximately N$800,000.00 after the
anticipated asset split with Mrs Sharma.








It is realistic to assume that as
he mentioned it that his financial means are not as abundant as in
Mrs Sharma; N will always be materially looked after way above
average and he stated that his priority in this regard will always be
her personal development and education. He stated that should he get
custody all aspects of N’s developmental needs, at present as
well as in the future shall be provided for with or without Mrs
Sharma honouring a possible maintenance obligation towards N should
he get custody.”









  1. The defendant’s income tax
    return for 2007 to 2008 at Exhibit 31-17 however tells a different
    story.’









[144] It is clear that the defendant
throughout portrayed himself as a victim in an attempt to explain the
reasons for his conduct, i.e. the dissipation of the assets of the
joint estate without the plaintiff’s knowledge and consent, his
suspicions that the plaintiff was abused as child, probably even by
her own father, etc. The defendant furthermore did not make a good
impression on this court during his evidence. The defendant’s
demeanour in court changed from being the victim, to melodramatic and
even to anger. Apart from the fact that material portions of his
evidence was not put in cross-examination to the plaintiff to allow
her to deal therewith, the defendant also was evasive in some of his
answers.








[145] Having observed the defendant
during the trial, after reading through all the documents and having
regard to his conduct, I am convinced that I can agree with the
description of Ms Hearne of the defendant as being a “dark
horse and unpredictable”.








[146] I am in agreement with Ms
Hearne, as well as Ms Kubirske that the taking of photographs of a
young girls’ genitalia, in the explicit detail and the manner
that it was done, for the reasons that the defendant advanced it was
done, is clearly inappropriate. The defendant, if he had real
concerns, could have taken the minor child to a doctor. This the
defendant did not do due to his alleged lack of time. This is in my
view no excuse for a father who intends to act in the best interest
of his minor child. To repeatedly take these kind of photographs, of
the private parts of a minor girl in the explicit manner that it was
done, in my view, constitutes an abuse of the child’s right on
privacy, as well as bodily integrity. I do not, for one moment,
suggest that the defendant did so with any unlawful intent, but in
doing so, for the reasons advanced, I have serious reservations as to
the maturity of defendant to properly care for the minor child at her
tender age as the custodian parent. I furthermore, having regard to
the lack of cleanliness of the hands, also appearing in the
photographs, have serious doubt as to the defendant’s alleged
quest for hygiene, for and in respect of the minor child. I was
shocked when I saw these photographs, the nature of which I have
never encountered before. I am astonished that these photographs can
be described by one of the experts who testified as “quite
normal in these circumstances”. It is not. It is unacceptable
for this court as the upper guardian of minor children that none of
the experts who saw these photographs, if they saw the photographs
produced in court, did not immediately investigate same in depth
and/or if they did not have the time to do so to report it to the
relevant authorities.








[147] This, however, is not the end,
as Mr Mouton in his heads of argument, and in the light of Mr
Annandale’s report, raises the following valid points in
respect of the relocation of the child with the plaintiff to India.








[148] Mr. Mouton submitted that it
will be better in the circumstances, having regard to Mr. Annandale’s
evidence that the minor child is unlikely to see the defendant again,
to let the child remain with the defendant in the Republic of Namibia
where this court can exercise its jurisdiction in respect of the
access rights awarded to the plaintiff.








[149] This argument would have had
considerable force if it is was not for the fact that the parties’
stay in Namibia was at all relevant times a temporary one as neither
plaintiff nor defendant are Namibian citizens or are domiciled in the
Republic of Namibia. They are foreigners of different nationalities
and cultures whose stay in Namibia have always been intended by the
parties, when N’s adoption was finalised, to be of a temporary
nature and as such they are both in possession of temporary visas
only. It was therefore always envisaged, as a direct consequence of
the adoption, that N, at one stage or the other will have to leave
the jurisdiction of this court. An order for adoption is permanent
and the status of the child in relation to his/her adoptive parents
is clear.








[150] Having said that I find it
appropriate to mention that until 2004 the matter of adoption by
foreigners was dealt with definitely and explicitly by statute.
Section 71(2)(f) of the Children’s Act 33 of 1960 provided as
follows:








71(2)
save as provided in s twenty-two, a Children’s Court to which
application for an order for adoption of a child is made shall not
grant the application unless –








in the case of a child born of any
person who is a Namibian citizen that the applicant or one of the
applicant’s is a Namibian citizen resident in Namibia. Provided
that the provisions of this paragraph shall not apply – where
the applicant or one of the applicant’s is a Namibian citizen
or a relative of the child and is resident outside Namibia; or








where the applicant is
not a Namibian citizen or where both applicant’s are not
Namibian citizens but the applicant or the applicants have the
necessary residential qualifications for the grant to him or them
under the Namibian Citizen Act (Act 14 of 1990) of a certificate or
certificates of Naturalization as a Namibian citizen and has or have
made application for such certificate or certificates and the
Minister has approved the adoption.”








[151] The effect of this provision was
that no authority was permitted to facilitate an adoption of a
Namibian child by a person who did not fall within the ambit thereof.








[152]
The full bench of this court, declared section 71(2)(f) of the
Children’s Act 33 of 1960 inconsistent with arts 14(3) and
10(1) of the Constitution of the Republic of Namibia and therefore
unconstitutional in its entirety.
30








[153] A direct result of the Detmold
decision was that foreigners were no longer barred from adopting a
Namibian child. In the Detmold matter, the applicants however were
both German nationals with permanent residence in Namibia.








[154] Namibia has not since the
Detmold decision made progress in putting in place all the necessary
structures to deal with adoptions of Namibian children by foreigners,
which in all aspects are similar to an inter-country adoption which
calls for a clear statutory regime to deal with the specific problems
inherent to such adoption.








[155] Although the Children’s
Act still provides that the proposed adoption has to serve the
interest and be conducive to the welfare of the child, without the
provisions of section 71(2) (f) same becomes mere lip service as the
authorities are not bound by any explicit statutory provision to also
, at the time of considering the adoption application, take into
consideration the effect of relocation of the prospective adoptive
parents, whose residency in Namibia, at the time of the adoption,
already is clearly indicated to be of a temporary nature.








[156] The risks of not duly
considering the effect of the potential relocation of Namibian
children from the country when deciding whether an adoption by
foreigners should be approved can result in the adoption process
being reduced to a mere rubber stamping exercise rather than a
careful examination of the facts and circumstances.








[157] Adoption and the consequences
thereof is not a private affair but remains a government
responsibility and as such, regardless of the fact that it is not
explicitly provided for by statute, authorities must respect the
subsidiarity principle as it was enshrined in art 21(b) of the United
Nations Convention on the Rights of the Child, which according to
article 144 of the Namibian Constitution has to be considered when
interpreting Chapter 3 of the Constitution, pertaining to Fundamental
Human Rights and Freedoms, and more in particular Article 15
pertaining to Children’s rights. The effect of the subsidiarity
principle is that adoptions by foreigners should be strictly
considered as an alternative to adoption by adoptive parents who
reside in the child’s country of birth.








[158] Namibia is also as yet not a
party to the Hague convention which in its inception on 1 May 1995,
heralded a global approach to inter-country adoption, setting out
detailed legal, administrative and procedural provisions to ensure
that its objects are fulfilled and acknowledging in its pre-amble
inter alia that -








the
necessity to take measures to ensure that inter-country adoptions are
made in the best interests of the child and with respect for his or
her fundamental rights”.







[159]
The fact that Namibia is not a
party to the Hague Convention and does not have the necessary
statutory regime in place has the result that this court looses its
jurisdiction as upper guardian of a Namibian child in the event of
such child leaving Namibia.








[160]
It is unfortunate that the legislature and/or the Government of
Namibia is dragging its feet to see to the implementation of
available instruments in respect of
inter
alia
the abduction of
children which leaves the court in a legal
lacuna
and to a great extent
powerless in certain circumstances.








[161] The time has now arrived for the
advocates of children’s rights in this country, to put pressure
on the relevant authorities to see to it that the international and
national instruments are in place, in creating a policy of law that
is of universal nature, so that a Namibian child who is the subject
of an adoption by foreigners, in one way or the other, still can find
his or her way back to the jurisdiction of this court.








[162]
The need of a child should be paramount and not the need of childless
foreign couples. The purpose of adoption is to find a suitable home
for a child and not a suitable child for a family. This is a
compelling factor that adoption agencies must carefully consider
before they allow foreigners to adopt, especially foreigners from
different nationalities.
31








[163] It often happens, within the ambit of adoption by foreigners,
speaking of children’s rights in the name of the child, that
issues are simplified to the extreme. However in such instances the
rights of the child concerned are not always so clear cut and
obvious. Although adoption by foreigners can offer a permanent and
appropriate family life to a child who has been deprived of same,
adoption agencies should not loose sight of the fact that such a
child can be caught up in the cross-fire of a broken relationship of
two foreigners of different origin which can potentially violate the
interests of the child.








[164] N was legally adopted by the plaintiff and the defendant and it
is therefore not for this court to judge whether all relevant factors
were taken into consideration at the time thereof. This was
pre-eminently the duty of the authority, which granted the adoption.
This Court can only hope that the authority allowing same considered
it at the time thereof with specific consideration to it being a
truly principled child orientated approach which required a close and
individualised examination of the real life situation of the child
involved.








[165] It is apparent from the evidence
that N’s adoption was a well considered and well conceived
decision by both parties. It therefore also would have been a reality
contemplated by the parties and the adoption authorities that if one
of the parties has to leave the jurisdiction of the court, that N at
one stage or another also will leave the jurisdiction of this court.
A further reality would be, should the marriage not work out that one
of them would have to part with her, due to their respective
nationalities and citizenships.








[166] As indicated herein before the
expected has happened and not only did the marriage not work out the
plaintiff has no right to further legally stay in the Republic of
Namibia.








[167] As it never was intended by any
of the parties that the minor child should remain in the jurisdiction
of this court, I, in my view, cannot now force the plaintiff, if the
custody and control of the minor child indeed is awarded to her, to
do so. The only reason why this court in these circumstances have
jurisdiction is because the parties, their marriage now ending in
divorce, at present still find themselves with the minor child in
Namibia. It follows that should a foreigner, despite his or her
desire or intent to further stay in the host country, lacks the
capacity to acquire a domicile of choice in that country, his or her
continued residence would be unlawful.



[168] From the evidence before me it
is obvious that the relocation of the plaintiff to India is not one
of choice, but one of necessity and I can find no indication on the
evidence before me that same is done with ulterior motives.








[169] The plaintiff for the past 3
years has been the interim custodian parent of the minor child. The
defendant has reasonable rights of access. In this environment, the
child has developed into an intelligent and special child.








[170] No objective or reliable
evidence has been advanced upon which this court can decide that the
interim custody arrangement/order, which was in place for
approximately two and a half years should be varied and that such
variation would be in the minor child’s best interest.








[171] Having regard to all the facts
of this matter, the legal principles applicable, some of which I have
referred to hereinbefore, I have no doubt, although the plaintiff by
no means can be described as being the perfect parent, as there
certainly is no such a thing, that I, on the facts before me, cannot
but otherwise conclude that the least detrimental available
alternative for safeguarding the child’s growth and development
will be if custody and control of the minor child is awarded to the
plaintiff.








[172]
On the present facts before me, in the light of what I already said
hereinbefore in respect of relocation, I have to choose between the
following scenarios, i.e. whether it will be in the best interest of
the child if she is to relocate with the plaintiff now to India or to
disallow the plaintiff, to whom custody of the child is awarded, to
relocate which will render her stay in Namibia unlawful or whether it
would be in the child’s interest to further expose her to
uncertainties. In this regard, sight should not be lost of the fact
that the defendant’s stay in Namibia cannot be said to be
permanent in nature, and as such, a real likelihood exists that the
Defendant will also leave Namibia in the near future. In such an
event, the defendant will most probably relocate to Germany.








[173]
In AD v DW (CENTRE OF CHILD LAW: DEPT FOR SOCIAL DEVELOPMENT) Sachs J
stated:
32








Child
law is an area that abhors maximalist legal propositions that
preclude or diminish the possibilities of looking at and evaluating
the specific circumstances of the case. The starting-off point and
overall guiding principle must always be that there are powerful
considerations favouring adopted children growing up in the country
and community of their birth. At the same time the subsidiary
principle itself must be seen as subsidiary to the paramount
principle. This means that each child must be looked at as an
individual, not as an abstraction. It also means that unduly rigid
adherence to technical matters, such as who bears the onus of proof,
should play a relatively diminished role; the courts are essentially
guarding the best interest of a child, not simply settling a dispute
between litigants.”








[174] The competing considerations
between reasons advanced for relocation and a reasonable objection
thereto must therefore be carefully considered and weighed. This
involve an assessment of the likely effect of the available
possibilities and gives rise to issues of degree which have to be
assessed having regard to the circumstances of the case. In my view,
once the custody and control issue has been decided on, it follows
that bar, certain exceptional circumstances, the minor child will be
allowed to relocate with the custodian parent as in these
circumstances the relocation is not by choice but in fact forced on
the custodian parent.








[175]
As Hurt J stated;
33








I
am bound, in considering what is in the best interest of G, to take
everything into account, which happened in the past, even after the
close of pleadings and in fact up unto today. Furthermore, I am bound
to take into account the possibility of what might happen in the
future if I make a specific order”








[176] With reference to the quoted
authorities one must also not lose sight thereof that it appears that
all of same deals with a situation where one of the parties, although
in some instances originating from a foreign country, sought the
court’s approval to emigrate from the country where they
resided up until divorce together with their biological minor
children. I could not find authority, which is similar to the present
situation where a child is to relocate from its country of birth and
origin and consequently the jurisdiction of its upper guardian, due
to the parents or one of them’s temporary stay in that country
having come to an end.








[177] Resultant from the aforegoing, and in the exceptional
circumstances of this matter the permission or not of the
non-custodian parent, to safeguard his access rights and to ensure
the child’s contact with him, in my view, becomes to a large
extent of no significance. To force the custodian parent to stay will
result therein that the court will attempt to give validity to a stay
in Namibia, which this court cannot do. The decision as to relocation
is obvious, not only due to the plaintiff’s circumstances, but
also as a result of the evidence of Mr. Annandale, that in his
opinion the Plaintiff, in the instance of relocation, is best suited.








[178]
As King DJP stated;
34








All
in all, the children’s lives will be more stable and secure
than they are now. It is trite that the interest of children are -
all else being equal – best served by the maintenance of a
regular relationship with both parents. Sadly however children of
divorced parents do not live in an ideal family world and the
circumstances necessitate that the best must be done in the
children’s interest to structure a situation whereby access by
the non-custodian parent is curtailed but contact between him and the
children is effectively preserved.”








And at 440 A-E



If the mother is to relocate, the
position can be palliated and the disruption of the children
minimised by the generous allocation of block access which is to be
proposed. The children will see their father for a three- week mid
year and a four week period at years end, to be enjoyed either in
Australia or South Africa according to the father’s choice. The
father has re-established his dental practice and will, I am
confident, be in a financial position to exercise the right of access
afforded to him.








One of the father’s concerns
is that the mother will make the exercise of access difficult, if not
impossible. I do not think this will happen. The mother recognises
and acknowledges the need and desirability of continued contact
between the children and their father and I believe she is bona fide
in this regard. Additionally the mother has undertaken to have the
order of this court, where appropriate, made an order of the court of
competent jurisdiction in Australia and the order which I propose
will oblige her to do so.








I am very mindful of the effect
which the loss of frequent contact with their father will have on the
children. He is very much part of their lives and the absence of
frequent contact with their father and the loss of this immediate
presence will be a diminishing factor in their young lives. I am
however satisfied that this can be compensated for, significantly if
not entirely, by the generous blocks of access proposed and by such
other palliatives as will be incorporated in the Court’s order.
I would reiterate that I accept the mother’s good faith and
emphasise that it is her sacred duty to respect and foster the
relationship between the children and their father.”








[179] It unfortunately follows in the
present circumstances that the non-custodian parent’s right of
access will be severely affected. This however is a consequence of an
adoption, which was allowed where foreigners from different countries
and nationalities with temporary visas were allowed to adopt a
Namibian citizen.








[180] After the hearing of this matter
I have requested the parties to forward to this court, their
submissions in respect of the defendant’s rights of access if
the plaintiff is to be awarded custody and control of the minor child
and she is allowed to remove the minor child from Namibia. The
submissions made by both parties are to a large extent similar.








[181] In these circumstances it
unfortunately is impossible for a model to be devised so that N will
have constant, physical contact with both her parents and I
incorporate in my order such access provisions to the defendant as
can reasonably and suitably be imposed.













[182] As a result of the fact that the
minor child has remained in Namibia up to date of the order made, I
have decided to limit the first period of the defendant’s
access during the forthcoming summer May-July holidays to a period of
3 weeks to provide the minor child and the plaintiff at least a
reasonable period of time not only to relocate to India but also to
set up the necessary structures in India for the minor child’s
care.













[183] I have also decided to, in the
light of the submission made by defendant that the minor child should
be re-evaluated in future to decide whether the access rights should
be changed, that the access rights of defendant, in respect of the
school holidays of India, for the time being should be exercised in
the Republic of Namibia. As is evident from the order Mr. Annandale,
failing him a clinical psychologist to be appointed by the registrar
of this court is to re-evaluate the position as to the defendant’s
access rights to the minor child during the 2011 winter holiday of
India. At that stage, the defendant most probably will know whether
his stay in Namibia also has come to an end. In such an event, it
follows that the access rights of the defendant will have to be
revisited in respect of the change of residence of the defendant to
another part of the world, on advice and recommendation of Mr.
Annandale or the alternate appointed clinical psychologist. In the
event of the defendant deciding to visit India, defendant, as
submitted by plaintiff, will be entitled to have access to the minor
child at any stage.








[184] I trust both parents will accept
that there is no winner or loser in this matter. There are merely two
concerned parents each seeking what is best for N and that this court
can only law down the rules, which the parents must see to be
observed.








[185] In my view, this litigation has not in any way been in any of
the parties’ interest. Clearly, had all concerned attempted to
talk about N’s genuine best interest, they would not have spent
so much time embroiled in a dispute about her custody and ultimate
residence. This obviously did not only come at great emotional cost
to all, which none of them could actually afford, but also had great
financial implications.








[186]
I also endorse the views expressed by Brassey AJ in MB v NB
35
that mediation in family matters is a
useful way of avoiding protracted and expensive legal battles, and
that litigation should not necessarily be a first resort.








[187] In matters concerning children,
even after divorce, an approach conducive to conciliation and problem
solving should probably serve their best interest and a
confrontational approach should be as far as possible avoided.








[188] Both parties indicated that if
they are awarded the custody and control of the minor child that he
or she does not claim any maintenance for and in respect of the minor
child. This is also evident from the pleadings filed of record.



[189]
In respect of the costs of this matter most of the time in court was
spent on the question as to the custody and control of the minor
child. As a result of the circumstances of this case, I cannot find
that any party, unreasonably contested same. Both parties
bona
fide
believed that they are
entitled to the custody and control of the minor child. As such, I
have decided that each party is to pay his or her own cost of suit.























As a result of the aforesaid, the
following order is made:-








1. The marital bond between the
plaintiff and the defendant is herewith dissolved.









  1. The joint estate between the parties
    is to be divided. For purposes of the division, the value of the
    joint estate is to be calculated as on 18 April 2008. The liquidator
    is specifically directed, in the calculation of the value of the
    joint estate to include the value of any dissipation of any assets
    of the joint estate by any of the parties without the permission of
    the other party prior to and after the 18th of April
    2008. Any income earned or accumulation of assets by the parties
    after 18 April 2008 – excluding any unauthorised dissipation
    of the assets of the joint estate - must be regarded as prima
    facie
    separate income earned.










  1. The parties are afforded a period of
    two weeks to agree on the liquidator to be appointed, failing which
    the President of the Law Society of Namibia is authorised and
    directed to appoint a suitably qualified liquidator in consultation
    with the respective legal practitioners of the parties. The
    liquidator, upon appointment shall have the following powers:-











    1. To liquidate the property belonging
      to the joint estate of the parties by public auction or private
      treaty, and to distribute the proceeds of the joint estate between
      the plaintiff and the defendant;












    1. Authorised to take immediate control
      of, manage and investigate the assets of the parties which form
      part of the joint estate of the parties;












    1. The liquidator’s authority
      shall be exercised subject to the supervision of the High Court of
      Namibia;












    1. Receive all such monies paid into
      the joint estate by any person entitled to do so and shall in
      particular ensure that the parties comply with any order made by
      the court in respect of debatement of accounts, proof of vouchers,
      adjustment of assets in favour of any party so ordered;












    1. Directed to take custody of cash,
      cash investments, stocks, shares and other securities held by the
      plaintiff and the defendant, and of other property or effects
      belonging to or held by or on instruction of either plaintiff or
      defendant;












    1. Authorised to conduct any
      investigation with the view to locating the assets, cash, shares,
      investments belonging to the defendant and the plaintiff or their
      business, including such assets held by way of securities, in cash
      or liquid form and for purpose of the said investigation, the
      liquidator:













      1. may obtain the issue by the
        Registrar of this Court of any subpoena in order to obtain access
        to and possession of relevant documents including records of
        banking accounts from any person if the liquidator has reason to
        believe such documents may contain information relating to the
        investigation.













    1. Authorised to incur such reasonable
      expenses and costs as may be necessary or expedient for the
      liquidation and distribution of the joint estate of the parties,
      and to pay same from the proceeds of the assets held, administered
      or under the control of the liquidator;












    1. Permitted to engage such assistance
      of a legal, accounting, administrative, or other professional or
      technical nature as they may reasonably deem necessary for the
      performance of the liquidator’s duty in terms of this order
      and to defray all reasonable costs and expenses thus incurred from
      the assets or proceeds of the joint estate of the parties;












    1. Authorised to open and operate any
      new banking accounts for the purpose of the liquidation and
      distribution of the joint estate.












    1. Directed and authorised to apply on
      notice to the Registrar should it be necessary for an extension of
      his/her powers and for instructions from the court in regard to any
      matter arising out of or in connection with the control, management
      and liquidation and distribution of the joint estate of the
      parties;












    1. To sign all necessary documents to
      effect the transfer of any property, assets, securities, shares if
      required into the name(s) of the parties;












    1. To take all necessary steps and sign
      all other necessary documents required in general for the
      liquidation in distribution of the joint estate of the parties;












    1. To retain a liquidator’s fee
      of 3.5% of the value of the assets upon liquidation;












    1. To pay all creditors, if necessary;












    1. To distribute the remainder of the
      funds in equal shares between the parties, or as directed by an
      order of High Court of Namibia;












    1. To deliver a copy of the final
      liquidation and distribution account to this Honourable Court on
      notice to the parties.










4. The custody and control of the
minor child N Höfelein, born on the 10th of March
2006, is granted to the plaintiff.








5. The plaintiff is allowed to remove
the minor child from Namibia and to relocate with the child to India.








6. The defendant shall have the rights
of access to the minor child, N Höfelein as follows:-










    1. Summer school holidays of India for
      a period of six weeks. The first summer school holiday for 2011
      however is limited to a period of three weeks.










Winter school holidays of India for a
period of not less than sixteen days.










    1. The defendant’s right of
      access is to be exercised and is to be afforded to him in Namibia.
      If the defendant is to travel with the minor child during his
      access periods outside the borders of Namibia, he shall first
      obtain the plaintiff’s written permission which shall not be
      unreasonably withheld, failing which the permission of this court.












    1. The plaintiff shall be responsible
      for the payment of the travelling return airfares of the minor
      child for the summer school holiday to the place of the defendant’s
      residence and shall be responsible for the travelling costs of the
      person who travels with and accompany the minor child from and to
      India.






















    1. The travelling fees for access
      during the winter school holiday of the minor child shall be
      equally shared between the plaintiff and the defendant. In the
      event of any of the parents accompanying the minor child during any
      of the flights, personal contact between the parties should as far
      as possible be avoided.












    1. For the period between the holidays
      and when defendant has no physical access, the plaintiff shall
      create a “skype” account for the minor child for
      purpose of video communication between the minor child and the
      defendant for a period of not less than three quarters of a hour
      each week.












    1. The plaintiff shall allow defendant
      all telephonic access to the minor child, convenient to the parties
      as a result of the time zone difference between the respective
      places of residence of the parties.












    1. The plaintiff shall make all
      necessary arrangements for the minor child to telephone (video or
      otherwise) the defendant on the following calendar days –










6.7.1. Father’s day;



6.7.2. Defendant’s birthday;



6.7.3. The minor child’s
birthday; and if possible



6.7.4. Esther’s and Ms Kalo’s
birthdays.










    1. The defendant shall be allowed
      access at any time to the minor child should he be visiting India.












    1. The plaintiff shall provide the
      defendant with the minor child’s medical, school and extra
      mural reports.












    1. The aforesaid arrangement in respect
      of the defendant’s rights of access is to be maintained up
      and until the end of the winter holiday during 2011. During the
      winter holiday an evaluation by Mr Annandale, alternatively a
      clinical psychologist, appointed by the Registrar of this
      Honourable Court should be conducted in Namibia during the winter
      school holiday as to whether these access arrangements should
      continue in future or whether different arrangement(s) for access
      should be made. If necessary and if so requested by the expert both
      parties are ordered and directed to make themselves available for
      evaluation at their own costs. The costs of the evaluation are to
      be borne by the parties in equal shares. Any amendment to the
      access rights shall only become enforceable once an order of this
      Court is obtained.
















  1. Each party is to pay his/her own
    costs of suit.



















________________



BOTES, AJ































































COUNSEL ON BEHALF OF THE PLAINTIFF:
Adv Schimming-Chase



Instructed by Ms E Angula



Lorentz Angula Inc.













COUNSEL ON BEHALF OF THE DEFENDANT:
Adv C Mouton



Instructed by Mr Vlieghe



Koep & Partners




12010
(3) SA 220 (GSJ) at paras 1-2





2Bundle
3, pg 135-141; Bundle 4 pg 273-275





3Bundle
1 p 75





4Exhibit
OO





5The
learned author HR Hahlo, in the South African Law of Husband and
Wife, 5
thEdition
states that: “The forfeiture rule of S9(1) [of the Divorce
Act, 1979] has little in common with the Pre-Divorce Act forfeiture
rule, except the word “forfeiture”. The idea behind the
old forfeiture rule was that a guilty spouse must not be allowed to
benefit from a marriage which he or she has wrecked.





6H
R Hahlo, The South African Law of Husband & Wife, 3
rd
Edition, p358. Although there are further
publications of the same work, reference is made to the specific
work as the Divorce Act, 1979, is not applicable in the Republic of
Namibia.





7In
evidence it, however was established that the adulterous
relationship already started during January 2009.





83rd
Edition, pages 364-365 and authorities referred
to in footnotes 12 and 13.





9H
R Hahlo, supra, p367





10See:
HR Hahlo, supra pg 430. See also Van der Westhuizen v Seide (2) 1957
(4) SA 360 (SWA)





11Hahlo,
supra pg431; Smith, 1937 WLD 126; Ex-parte De Beer, 1952 (3) SA 288
(T)





12See
exhibit QQ





13For
the source of the backgrounds see bundle discovered documents, pages
105-106





14See
Discovery bundle pg 113





15J
v J 2008 (6) SA 30 (C)





161994
(3) SA 201 (c)





171994
(3) SA 201 (C) at 204 T- 205 G; DM v SM 2008 (2) NR 704 (HC); See
also section 3 of the Child Status Act, Act 6 of 2006.





18F
v F 2006 (3) SA 42 (SCA) para 13





19See
F v F
supra pp
48-49





20See
also: Jackson v Jackson
supra p
317





21In
Jackson v Jackson, 2002 (2) SA 303, at 311 H it was also stated
that: “the experts were
predicting the future and that their discipline is not an exact
science.”





22Pleadings
bundle pp 107 and 166





23Ms
Hearne was in court for approximately half a day before she gave
evidence.





24Dr
Annandale.





25See
exhibits YY 1 - 3





26Bundle
4, p 50





27This
was denied by Ms Kubirske





28Exhibit
DD





29See
bundle 4 page 18 para 5.4





30See
Detmold and Another v Minister of Health and Social Services and
Other 2004 NR 174 (HC).





31See
judgment of Sacks J in AD v DW (CENTRE FOR CHILD LAW: DEPT FOR
SOCIAL DEVELOPMENT) 2008 (3) SA 183 at 204 – “
Volkman
‘Introduction: New Geographies of Kingship’ in Volkman
(ed) Cultures of Transnational Adoption (2005) at 4 quoted by
McKinney ‘International Adoption and the Hague Convention:
Does Implementation of the Convention Protect the Best Interests of
Children?’ (2007) 6 Whitter Journal of Child and Family
Advocacy 361 at 366. See too Saclier ‘Children and Adoption:
Which Rights and Whose?’ in UNICEF ‘Intercountry
Adoption’ 4 Innocenti Digest at 12:



At
present, speaking of children’s rights when talking about
inter-country adoption forces us to confront a highly uncomfortable
situation. In the name of the child, everyone raises his or her
banner and simplifies the issues to extreme, whereas, in this field,
the rights of the children concerned are not always so clear-cut and
obvious. The passions the topic unleashes, in both countries of
origin and receiving countries, distort information, confuse
people’s thinking and make action difficult and risky. Often
there is a tendency to consider only one aspect of the problem,
filtered through the prism of the side of the planet on which one
lives. Everyone defends his or her personal convictions or
interests, forgetting that at stake are the lives of human beings,
and young and particularly vulnerable ones at that”.
See
also: De Gree and Another v Webb and Another (2006) (6) SA 51 at G.










32Supra
at 204 C - D





33See
P and Another v P and Another 2002 (6) SA 105 (NPD) at 110 C-D





34Van
Rooyen v Van Rooyen,
supra p 439 H-J





35Supra
at pp 235 - 238