IN THE HIGH
COURT OF NAMIBIA

CASE NO: I
2118/2011

In
the matter between:

STEFAN
SCHNEIDER
…...................................................................PLAINTIFF

And

YULIA
NIKOLAEVNA SOFONOVA
…..............................................DEFENDANT

CORAM:
UEITELE, AJ.

Heard on: 27 MARCH
2012

Delivered: 10
APRIL 2012

UEITELE A, J

Introduction

[1] The plaintiff
instituted action against the defendant in this Court for an order
for the restitution of conjugal rights and, failing compliance
therewith, a final order of divorce together with ancillary relief.
The ancillary relief claimed by the plaintiff is in the following
terms “An order directing that the plaintiff would have the
custody and control (sic) of the minor child born of the marriage
between the parties, subject to the Defendant’s reasonable
rights of access...”

[2] The defendant
entered notice to defend the action but failed to file her plea and
as a result of the failure to file the plea she was barred from
further participating in the matter. The plaintiff set the matter
down for hearing and on 05 December 2011 plaintiff presented oral
evidence in support of his claim for both the restitution ancillary
relief. I must, however, pause here and observe that the record of
the proceedings of 05 December 2011 was transcribed. When I perused
that record I did not find evidence given by the plaintiff as to why
is the preferred parent to be awarded the custody of the minor child.

[3] This court
after hearing the oral evidence issued a rule nisi in the
following terms:

“The Court
grants judgment for the Plaintiff for an order of restitution of
conjugal and orders the Defendant to return to or receive the
Plaintiff on or before the 13^th
of February
2012, failing which to show cause if any to this Court on the 12^th
of March 2012
at 10H00, why :

1. The
   bonds of the marriage subsisting between the Plaintiff and the
   Defendant should not be dissolved; and

   
   

2. The
   custody and control (sic) of the one minor child born of the
   marriage between the parties should not be awarded to the Plaintiff
   subject to the Defendant’s reasonable access…”

   
   

[4] It is
appropriate to pause here and observe that on 5 December 2011 when
this Court made the order quoted above in paragraph 2 the defendant
was out of Namibia (she left Namibia on 25 October 2011) she was
living in Russia, . When the defendant left Namibia she took with her
the minor child born of the marriage between her (i.e. the defendant)
and the plaintiff.

[5] On 07 March
2012 Engling, Stritter & Partners acting on behalf of the
defendant gave notice of the defendant’s intention to oppose
the finale order of divorce and filed an affidavit with the Registrar
of this Court in which affidavit the defendant sets out the grounds
on which she opposes the final order of divorce and the ancillary
relief.

[6] On the return
date the matter was called before me and because there was an
affidavit opposing the confirmation of the rule
nisi and an affidavit showing cause, I
postponed the matter to 27 March 2012 for arguments. On 27 March 2012
the defendant was represented by Ms van der Westhuizen and the
plaintiff by Mr. Brandt.

[7] The defendant,
in her affidavit in support of the opposition to the confirmation of
the rule nisi and
showing cause appears to oppose both the confirmation of the decree
of divorce and the granting of the ancillary relief.

[8] I pointed out
to Ms van der Westhuizen that from the defendant’s affidavit it
is clear that the defendant is not willing to return to the
plaintiff. The parties agreed that the decree dissolving the marriage
could be made final. I accordingly issued an order dissolving the
marriage between the plaintiff and the defendant. On the authority of
the decision in Vahekeni v Vahekeni
2008 (1) NR 125 (SC) I allowed the question of the
custody of the minor child to be argued.

The grounds
on which the defendant opposed the confirm of the rule nisi

[9] The defendant
in her affidavit raises, in limine, that this Court lacks the
necessary jurisdiction to adjudicate the custody of the minor child.
She based her submission that this court lacks jurisdiction on the
following facts:

(a) The parties
are both foreign nationals and were married in another jurisdiction.

(b) Neither
parties are domiciled within the jurisdiction of this Honourable
Court.

(c) The minor
child is not within the jurisdiction of this Honourable Court.

[10] On the merits
the defendant denies that it would be in the best interest of the
minor child that the plaintiff be awarded custody of the minor child,
she sets up in some detail an explanation of why she took the child
to Russia and she says that she did so in
circumstances of urgency and in fear of her own life and the safety
and the wellbeing of the minor child by reason of the acts (physical
assaults) and threats of the plaintiff at the time. The
plaintiff has chosen not to answer these grave assertions and has not
filed a replying affidavit. But in view of the conclusion that I have
arrived at in this matter I do not express any opinion on the truth
or otherwise of the allegations.

[11] Mr. Brandt on
behalf of the plaintiff submitted that this Court has jurisdiction in
terms of section 1 of the Matrimonial causes Act, 1939. He argued
that “the court retains jurisdiction on
the doctrine of continuance of jurisdiction once jurisdiction was
established at the commencement of the divorce proceedings.”

[12] In the light
of the above arguments I find it appropriate to briefly survey the
legal principles governing the concept of jurisdiction and apply
those principles to the facts of this matter.

Jurisdiction

[13] In the South
African case of Graaff-Reinet Municipality v Van Ryneveld's
Pass Irrigation Board 1950 (2) SA 420 (A) Watermeyer CJ at
page 424 defined jurisdiction as:

“…the
power or competence of a Court to hear and determine an issue between
parties, and limitations may be put upon such power in relation to
territory, subject matter, amount in dispute, parties etc…”

[14] In the matter
of Ewing McDonald & Co Ltd v M & M Products Co
1991 (1) SA 252 (A) Nienaber AJA at page 257 said:

“Jurisdiction
in the present context means the power vested in a Court by law to
adjudicate upon, determine and dispose of a matter (cf Graaff-Reinet
Municipality v Van Ryneveld's Pass Irrigation Board 1950
(2) SA 420 (A) at 424; Veneta
Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation)
1987 (4) SA 883 (A) at 886D). Such power is purely territorial; it
does not extend beyond the boundaries of, or over subjects or
subject-matter not associated with, the Court's ordained territory…”

[15] And in the
case of Veneta
Mineraria Spa v Carolina Collieries (Pty) Ltd (In Liquidation) 1987
(4) SA 883 (A) at page
486 Viljoen JA, said

“Jurisdiction
('gerigtsdwang') is defined by Vromans,
following Berlichius,
as 'a lawful power to decide something in a case or to adjudicate
upon a case, and to give effect to the judgment, that is, to have the
power to compel the person condemned to make satisfaction'.’

[16] Pistorius
David in the book Pollak On Jurisdiction (2^nd
Edition 1993) remarks at page 3 that “…the court must,
within its territory, have authority over the defendant sufficient to
be able to enforce its orders” and in support quotes in the
case of Schimler v Executrix in the Estate of Rising
1904 TH 108, who at page 111 said:

“The
jurisdiction of every country is territorial in its extent and
character, for it is derived from the sovereign power, which is
necessarily limited by the boundaries of the state over which it
holds sway. Within those boundaries the sovereign power is supreme,
and all persons, whether citizens, inhabitants, or casual visitors,
who are personally present within those boundaries and so long as
they are so present, and all property (whether movable or immovable)
for the time being within those boundaries, are subject to it and to
the laws which it has enacted or recognized. All such persons and
property are therefore subject to the jurisdiction of the courts of
the country which the laws of the country have established so far as
such laws give them the jurisdiction. Over person not present within
the country, jurisdiction can only be exercised to the extent of any
property they may possess in the country; and over persons who are
not in the country and have no property in the country , no
jurisdiction at all can be exercised.

[17] David (supra)
further argues that the ‘doctrine of jurisdiction depends upon
the power of the court to give an effective judgment, and quotes the
pronouncement by De Villiers JP in the case of Steytler v
Fitzgerald 1911 AD 295 at page 346 where the learned Judge
President said:

“A court can
only be said to have jurisdiction in a matter if it has the power not
only of taking cognizance of the suit but also of giving effect to
its judgment.’

[18]
In the case of Barclays National Bank Ltd V Thompson
1985 (3) SA 778 (A) Hoexter JA said at page 796

“I think, that
in the law of jurisdiction the principle of effectiveness relates to
the mere power of a Court to give an effective judgment rather than
to the exertion of that power in any particular instance. The matter
is succinctly stated by Pollak in footnote 2 at 208 of The
South African Law of Jurisdiction
‘... the
principle of effectiveness does not mean that a court has no
jurisdiction unless it can in fact make its judgment effective
against the particular defendant. It means merely that the judgment
of the court should normally be effective against a person in the
position of the defendant. That is why the domicile of the defendant,
although unaccompanied by physical presence, is a ground for
jurisdiction in an action for a judgment sounding in money’."

The legal
principle applied to the present matter.

[19] In the
present matter the facts that are common cause are as follows:

(a) The plaintiff
is a German citizen and is currently (i.e. on the return date)
residing in Germany. The defendant is a Russian citizen and is
currently residing in Russia. The minor child born of the marriage
between the plaintiff and the defendant lives with the mother (the
defendant) in Russia.

(b) The plaintiff
and the defendant married each other on 25 April 2009 in the State of
Florida (United States of America).

(c) The plaintiff
and defendant moved to Windhoek during 2009.

(d) The combined
summons commencing the action were personally served on the plaintiff
on 18 July 2011 at her residence at Gutsche Street No, 34 Eros Park
Windhoek, Namibia.

(e) The defendant
left Namibia and returned to Russia on or about the 25^th
of October 2011.

(f) This matter
was set down on two different occasions the first notice of set down
was served on the Registrar on 07 November 2011 setting the matter
down for hearing on 14 November 2011, the second Notice of set down
was served on the Registrar on 29 November 2011 setting the matter
down for hearing on 05 December 2011.

[20] Mr. Brandt
who appeared for the plaintiff submitted that section 1 of the
Matrimonial Causes Jurisdiction, Act, 1939(Act 22 of 1939) confers
jurisdiction on this court to hear the matter and that the Court
retains its jurisdiction on the doctrine of continuance jurisdiction
once jurisdiction was established at the commencement of the divorce
proceedings. Mr. Brandt referred me to the case of Di Bona v Di
Bona 1993 (2) SA 682 (C) for the doctrine of continuance of
jurisdiction. His reliance on this case must be based on the
following dicta by Rose Innes J:

“It might,
however, be contended that respondent was within the jurisdiction of
this Court at the time of the order of divorce and at the time that
she committed the alleged contempt of Court by taking the children
out of the country without applicant's consent. The contention might
be that a subsequent action or application for her committal for
contempt of that order is really part of those original proceedings
in the sense that it is merely a step to enforce the order given in
the original proceedings. It might then further be contended that the
doctrine of continuance of jurisdiction, once established at the
commencement of proceedings, applies to all subsequent proceedings
aimed at enforcing the original order for which there was
jurisdiction.”

I will later in
this judgment come back to this dictum.

[21] Section 1 of
the Matrimonial Causes Jurisdiction, Act, 1939 (Act 22 of 1939)
provides as follows:

“1
Jurisdiction

(1) A court shall
have jurisdiction in a divorce action if the parties are or either of
the parties is-

(a) domiciled in the
area of jurisdiction of the court on the date on which the action is
instituted; or

(b) ordinarily
resident in the area of jurisdiction of the court on the said date
and have or has been ordinarily resident in Namibia for a period of
not less than one year immediately prior to that date.

(2) A court which
has jurisdiction in terms of subsection (1) shall also have
jurisdiction in respect of a claim in reconvention or a
counter-application in the divorce action concerned.

(3) A court which
has jurisdiction in terms of this section in a case where the parties
are or either of the parties is not domiciled in Namibia shall
determine any issue in accordance with the law which would have been
applicable had the parties been domiciled in Namibia on the date on
which the divorce action was instituted.

(4) The provisions
of this Act shall not derogate from the jurisdiction which a court
has in terms of any other law or the common law.

(5) For the purposes
of this Act a divorce action shall be deemed to be instituted on the
date on which the summons is issued or the notice of motion is filed
or the notice is delivered in terms of the rules of court, as the
case may be.”

[22] Section 5 of
the Matrimonial Causes Jurisdiction, Act, 1939 (Act 22 of 1939)
provides as follows:

“5 Any
division of the Supreme Court of South Africa which tries any action
or claim in reconvention for divorce or for restitution of conjugal
rights or for judicial separation by virtue of the jurisdiction
conferred upon it by section one or four shall have jurisdiction to
make an order determining the mutual property rights of the husband
and wife or concerning the custody, guardianship and maintenance of
any minor child born of the marriage subsisting between them; and any
such division which has tried any such action or claim in
reconvention by virtue of the jurisdiction so conferred upon it shall
have jurisdiction at any time thereafter to amend any order made by
it concerning the custody, guardianship or maintenance of any such
child.

[23] The golden
rule of statutory interpretation is that words must be given their
ordinary grammatical meaning, unless doing so would produce an absurd
result. I conclude that the words used in sections 1 and 5 of the
Matrimonial Causes Jurisdiction Act, 1939 are clear and unambiguous,
and must be given their 'literal meaning in context' (see GE Devenish
Interpretation of Statutes (Juta 1992) at page 37). It
is therefore clear that both the plaintiff and the defendant were
ordinarily resident in the area of jurisdiction of the court on the
date on which the summons was issued and has been ordinarily resident
in Namibia for a period of not less than one year immediately prior
to that date. This court thus has jurisdiction to hear the divorce
action.

[24] Section 5 of
the Matrimonial Causes Jurisdiction Act, 1939 confers jurisdiction on
this court to make an order concerning the custody, guardianship and
maintenance of any minor child born of the marriage subsisting
between the parties to divorce action.

[25] The matter is
however not as simple as that. In Pollak on Jurisdiction
(supra) at page 145 the learned author argues that where the
child is not present in the area of jurisdiction of the court, ‘the
doctrine of effectiveness has been held to preclude the court from
exercising jurisdiction’. He cites as authority the case of
Combe v Combe 1909 TH 241 and Cerenion v Snyman
1961(4) SA 294. In the latter case Marais J said at pages 297-298:

“It has been
laid down in a number of cases, decided before the 1953 Act, that the
order for the handing over of the child to the parent to whom custody
has been awarded, can only be made by the Court having jurisdiction
in respect of the place where the child happens to be at the time.
The reason is that, though a Court may decide that, as between the
two parents, one of them is entitled to the custody of the minor
child and make a declaratory order to that effect, the only proper
forum for deciding whether or not the child should be entrusted to
either of its parents and, if so, subject to what safeguards as to
the child's welfare, is the Court which exercises the upper
guardianship over the child, i.e. the Court in whose jurisdiction the
child is. The upper guardian has to determine the child's position,
irrespective of the rights of the parents inter se, in accordance
with what appears to be in the best interests of the child.”

[26] In the Di
Bona v Di Bona 1993 (2) SA 682 (C) on which both Ms van der
Westhuizen and Mr. Brandt relied the facts were briefly as follows:

A husband and wife
were divorced by order of the Supreme Court of South Africa (the Cape
Provincial Division) on 13 June 1991. The parties filed consent
papers and in terms of the consent paper the wife was granted custody
of the two children of the marriage. The husband's rights of access
to the children were defined in clause 2 of the consent paper. He was
to have reasonable access to the children at all reasonable times and
in addition had the right to have the children spend alternate
weekends and alternate school holidays with him. Clause 2.6 of the
consent paper provided that neither party should remove the children
from the jurisdiction of the Court without the other party's consent,
which should not be unreasonably withheld.

On 19 June 1991,
six days after the decree of divorce was granted, the wife left South
Africa with the two children and went to live with her parents in
England (where she went to live permanently). She did so without the
consent or knowledge of the husband and in breach of the order of
Court made in terms of the consent paper.

On 21 June 1991
husband brought an ex parte application in the Supreme Court
of South Africa (the Cape Provincial Division) as a matter of
urgency, without notice to the wife, for a rule nisi calling
upon respondents to show cause why an order of Court should not be
granted attaching ad confirmandam iurisdictionem the movable
and immovable property in Cape Town belonging to first respondent.
The attachment was to confirm jurisdiction in an action to be
instituted by husband against wife for an order committing her to
prison for contempt of Court and directing her to comply with clause
2 of the consent paper providing for applicant's access to the
children and providing that they should not be removed from the
jurisdiction of the Supreme Court of South (the Cape Provincial
Division). The rule nisi was granted and on the return date
the wife opposed the confirmation of the order. The wife opposed the
confirmation amongst others on the ground that the appropriate forum
in which the husband should seek effective relief relating to the
custody of or access to the children is in the English Court in whose
jurisdiction they are presently residing.

[27] Rose Innes J
upheld the contention that the Court did not have jurisdiction he
said:

In our law, and
English law would appear to be the same, the only Court that has
jurisdiction to order the handing over of children and to authorize,
if need be, the Sheriff to take the children from one parent and to
hand them over to another, is the Court of the place where the
children are to be found and where they are living and under whose
judicial guardianship the children are at the time of the making of
the order. In South Africa the Supreme Court is not bound by a
foreign order of Court relating to the custody of or access to
children who are in South Africa and who are not, and were not, in a
foreign country, the Court of which has purported to make such order.
The function and duty of the South African Court, where a dispute
arises as to the custody of or access to the children, is to
establish what is in the best interests of the children, whatever
another Court may have found in this regard and to make its own order
accordingly. It has to form an independent judgment on the evidence
before it and in the course of doing so it may give such weight to a
foreign custody or access order or an order relating to the
well-being of the children as the circumstances may justify, but it
is certainly not bound by such foreign order nor will it grant
process in aid of the enforcement of such an order without the
enquiry which I have mentioned. (See Märtens v Märtens
1991 (4) SA 287 (T) at 292; Matthews v Matthews 1983
(4) SA 136 (E); Desai v Desai 1987 (4) 178 (T);
Abrahams v Abrahams 1981 (3) SA 593 (B); Zorbas v
Zorbas 1987 (3) SA 436 (W); and Riddle v Riddle
1956 (2) SA 739 (C) a

[28] I am
conscious of the decisions in, Matthews v Matthews 1983
(4) SA 136 and Desai v Desai 1987 (4) 178 (T) which did
not follow the decision of Cerenion v Snyman 1961(4) SA
294 and Martine v Large 1952 (4) SA 31 (W).

[29] The brief
facts in the case of Matthews v Matthews 1983 (4) SA
136 are as follows:

On 1 March 1983 a
husband and wife were divorced from one another by order of the
South-Eastern Cape Local Division of the Supreme Court of South
Africa. By consent of the parties the custody of the minor children
was awarded to the husband and the consent was made an order of
court. The children were then living with their father in Port
Elizabeth.

On 4 May 1983 the
wife, who had come to Port Elizabeth, removed the two children from
the school which they were attending in Port Elizabeth and without
the consent of the husband took the children with her to
Johannesburg. The husband then lodged an application for an order
directing the wife to return the children. The wife opposed the
application and, took a point in limine to the effect that the
South-Eastern Cape Local Division of the Supreme Court of South
Africa did not have jurisdiction to entertain the application in view
of the fact that the two children are not physically present within
the area of jurisdiction of that Court. The point in limine
was dismissed.

[30] My reading
and understanding of the decision in Matthews v Matthews
1983 (4) SA 136 is that the reason why the court dismissed the point
in limine in that case is the fact that the court found that
it could give effect to its order and thus had jurisdiction. Van
Rensburg J said the following:

“There can be
no doubt that any order made by this Court for the handing over of
the two children in question will be effective, notwithstanding the
fact that the two children are within the area of jurisdiction of
another Division of the Supreme Court….In this regard I would
also refer to s 26 (1) of the Supreme Court Act 59 of 1959 which is
to the following effect:

‘The civil process
of a provincial or local division shall run throughout the Republic
and may be served or executed within the jurisdiction of any
division.’..

It is clear that
effectiveness is a factor to be taken into account in determining
whether or not a Court has jurisdiction. Estate Agents Board v
Lek 1979 (3) SA 1048 (A) at 1063B - C.

Quite apart from the
question of effectiveness, in my view the dictates of convenience and
common sense indicate that this Court should have jurisdiction to
enforce its own order where it can be effectively enforced…”

[31] Before I
conclude I will briefly deal with the dicta (quoted above in
paragraph 20) relied on by Mr. Brandt. Rose Innes held that the
doctrine of continuation of jurisdiction was not applicable to cases
of civil imprisonment. He said:

.”In my
opinion the doctrine of the continuance of a Court's jurisdiction,
once such jurisdiction is established at the commencement of an
action or other proceeding, does not apply to an application for
arrest or committal for contempt where the respondent has left South
Africa. I am in agreement with Pollak's observations in
this regard. The learned author says with reference to those South
African cases relating to civil imprisonment of persons in a province
other than the province belonging to the Court making the order where
the doctrine of continuance of jurisdiction has been applied:

'It is obvious that
the extension of jurisdiction in such a matter must be confined to
the case in which the defendant or respondent is physically present
within the Union and cannot be extended to the case where the
defendant or respondent is outside the Union. If the defendant or
respondent is physically present within the Union the civil
imprisonment order can be made effective. (See Irving and Coe v
Dreyer 1921 CPD 185.) If he is not present the order is
brutum fulmen.'

[32] I am in
agreement with Rose Innes and Pollak. The doctrine of the continuance
of a Court's jurisdiction, once such jurisdiction is established at
the commencement of an action or other proceeding, does not apply to
a dispute regarding the custody of a minor where the child has left
Namibia and is thus not in the court’s area of jurisdiction.
There can be no doubt that this court will not be able to give effect
or enforce any order made by it with regard to the minor child if the
minor child is beyond the territorial boundary of Namibia. I am
accordingly of the view that the point in limine must succeed
and that this Court does not have jurisdiction to entertain the
question of the custody of the minor child.

[33] As regards
the cost both Mr. Brandt and Ms van der Westhuizen agreed that the
general rule, namely that costs follow the event, that is, the
successful party should be awarded his or her costs must apply in
this case.

[34] In the result
I make the following order.

1 The rule nisi
in respect of the ancillary relief is discharged.

2 The plaintiff
must bear the costs of the opposition of this application, which
costs are to include the costs occasioned by one instructing and one
instructed counsel.

__________________________

UEITELE,
AJ

ON BEHALF OF
THE PLAINTIFF: MR CHRIS BRADNDT

Instructed
by: CHRIS BRANDT ATTORNEYS

ON BEHALF OF
THE DEFENDANT MS. C E VAN DER WESTHUIZEN

Instructed
by: ENGLING STRITTER & PARTNERS