REPUBLIC
OF NAMIBIA
IN
THE HIGH COURT OF NAMIBIA, MAIN DIVISION
CASE
NO. I 105/2009
In
the matter between:
HARALD
GUNNAR VOIGTS
…............................................APPLICANT/DEFENDANT
and
SITTA
ELKE VOIGTS
(Born
WALDSCHMIDT)
….......................................................................RESPONDENT/PLAINTIFF
CORAM:
DAMASEB, JP
Reserved
after written submissions: 3 AUGUST 2012
Delivered:
8 AUGUST 2012
________________________________________________________________
JUDGMENT
DAMASEB, JP:
[1]
The applicant is a defendant in a divorce action brought by her
husband who is the respondent in the present proceedings. She seeks
condonation by way of notice of motion brought on affidavit to file a
‘conditional counterclaim’, alternatively leave to amend
her plea to introduce the conditional counterclaim in the event that
the Court grants divorce in that action which was initially brought
on the basis of her alleged desertion
and, latterly, on
the basis of her admitted adultery.
The applicant had
proceeded to file the counterclaim on 29 June 2012 without first
obtaining Court’s leave or the consent of the respondent.
[2] The respondent
strenuously objects to this procedure. He takes the view that in
terms of rule 24 a counterclaim is possible only on one of three
bases: (i) if brought with the consent of the plaintiff; (ii) if
filed simultaneously with the plea, or (iii) with the leave of court
on good cause shown. As regards amendment as an alternative to the
counter claim procedure , the respondent’s principal line of
attack is that such procedure is not intended to be used to introduce
a new pleading (and causes of action) but simply to put right minor
defects. Both these objections raised by the respondent are valid.
Fact remains though that on 10th
July 2012 the
applicant filed an application in the following terms:
1. Condoning the
Applicant/defendant’s non-compliance with rule 24 of the rules
of Court and, in terms of rule 27 of the rules of Court, granting the
Applicant/Defendant leave to serve and file her conditional
counterclaim out of time in this present action.
2. Alternatively to paragraph 1
above granting the Applicant/Defendant leave to amend her plea file
of record herein in terms of Rule 28 of the rules of Court by virtue
of introducing a conditional counterclaim thereto.
3. Order that the costs of this
application be costs in the cause of the aforesaid action referred to
in paragraph 1 above.
4. Further and/or alternative
relief.
[3] Therefore,
although the applicant was not entitled to file the counterclaim
either by way of counterclaim properly so called or by way of
amendment before the Court’s leave had been obtained or with
respondent’s consent, there is an application before Court
seeking leave for its introduction. I find it unnecessary therefore
to decide the question if it should have been filed in the first
place.
[4] As the notice
of motion shows, the applicant seeks condonation to pursue the
counterclaim and, therefore, must show ‘good cause’ and
prospect of success. The application is opposed both on the basis
that given the rather late stage at which it was brought it discloses
no good cause and that, in any event, the heads of claim relied on
have no prospect of success. In the view that I take of the matter I
find it unnecessary to devote a great deal of time to the allegations
and counter allegations about who complied with which Court order and
who did not. The question of timing of the application is however
relevant to costs.
[5] Whether she
does so by way of belated counterclaim or amendment, the essence of
the applicant’s intended new pleading is to introduce 3
separate claims against the plaintiff to whom she is married out of
community of property, but subject to an accrual system - a legal
device unknown to our law but recognised in South Africa. The first
claim is to seek a final order of divorce based on the respondent’s
admitted adultery, alternatively an order for restitution of conjugal
rights based on the respondent’s desertion coupled with
maintenance for herself in the amount of N$ 15 000 per month and
“forfeiture of the benefit derived from the marriage concluded
out of community of property but subject to the accrual system’’,
alternatively division of the accrued estate. In essence, therefore,
the applicant wants her rights under the accrual determined at the
same time as the dissolution of the marriage, if it should come to
that.
[6] In terms of s
2 of the Matrimonial Property Act
of South Africa
(MPA):
“Every marriage out of
community of property in terms of an antenuptial contract by which
community of property and community of profit and loss are excluded,
which is entered into after the commencement of this Act, is subject
to the accrual system specified in this Chapter, except in so far as
that system is expressly excluded by the antenuptial contract.”
[7] Section 3 of
the MPA sets out the effect and consequences of the accrual system as
follows:
“(1) At the dissolution
of a marriage subject to the accrual system, by divorce or
by the death of one or both of the spouses, the spouse whose
estate shows no accrual or a smaller accrual than the estate of the
other spouse, or his estate if he is deceased, acquires a claim
against the other spouse or his estate for an amount equal to half of
the difference between the accrual of the respective estates of the
spouses.
(2)
Subject to the provisions of section 8 (1), a
claim in terms of subsection (1) arises at the dissolution of the
marriage and the right of a spouse
to share in terms of this Act in the accrual of the estate of the
other spouse is during the subsistence of the marriage not
transferable or liable to attachment, and does not form part of the
insolvent estate of a spouse.” (My underlining for emphasis)
[8] Although the
device of an accrual system is foreign to our law, the parties (who
solemnized their marriage in Namibia on 18th January 1985)
contractually incorporated that system into their marriage contract
when, in terms of clauses 7 and 8 of the ante nuptial contract, they
contracted as follows:
“7. The
marriage between
the intended consorts shall be subject to the accrual system so
that upon dissolution of the marriage be means of divorce…the
one whose estate does not show any accruals or less accruals than the
estate of the other…shall be granted a right to claim against
the other intended consort…for an amount equal to half of the
difference between the accruals of the intended consorts’
different estates so that the estates of the intended consorts are of
equal size after dissolution of the marriage.
8. The above-mentioned right
to claim comes into existence upon the dissolution of the marriage…”
(My underlining for emphasis)
[9] The point at
which the right of action ripens to bring a claim based on an accrual
has been discussed in a number of South African decisions where that
system is statutorily recognised. I need to point out at the outset
that it is not suggested by the applicant that the accrual system
incorporated into their marital contract is anything other than the
legal device created under the South African Act. Mr Corbett for the
respondent has drawn my attention to the following decisions: Reeder
v Softline Ltd and another 2001 (2) SA 844(W); Le Roux v Le Roux
[2010] JOL 26003(NCK); Van Sly v Van der Mere 1986 1 ALL SA 142 (NC);
Van Onselen NO V Kgengewenyane 1997(2) SA 423(B).
[10] The ratio
discernible from
all these cases is that the right of action to seek division of the
accrued estate arises on dissolution of marriage and not before. In
the most recent of the cases referred to above Le
Roux v Le Roux,
the following is stated:
“[16] In Odendaal v
Odendaal 2002 (1) SA 763(WLD) it was held that “Section 3(2)
makes it clear that the indebtedness created by s3 (1) only arises at
dissolution…”
[17] The provisions of section
3 are in my view clear and unambiguous and their ordinary grammatical
meaning is simply that no such claim will arise until such time as
the marriage is dissolved.
…
[19] Mr. Van Rooyen conceded
that, if a claim like this cannot be addressed as part of the issues
in the divorce action, and the parties may not be able to come to an
agreement in this regard after the dissolution of the marriage, they
would have to go to the expense of further litigation to enforce such
a claim.
[20] Although this would, on
the face of it, appear to be impractical and could result in a
piecemeal adjudication of issues that originates from one and the
same parties, it could not in my view be described as an absurd
result.
[21] As pointed out by Mr van
Rooyen, the position is not much different in the case of a marriage
in community of property. In such a case the court would not, in the
absence of a written agreement regarding the division of the joint
estate (see section 7(1) of the Divorce Act, 70 of 1979), or possibly
a partial forfeiture order (see section 9 of both Acts), make an
order dividing the joint estate on any specific basis. The only order
which could then in such a case be made, is an order that the joint
estate be divided (although that would be unnecessary, because the
right to an equal division of the joint estate would, in the absence
of a forfeiture order, follow from an order dissolving a marriage in
community of property...
[22] Should the spouses then
not be able to divide the joint estate by agreement, the court would
have to be approached, for the appointment of a liquidator or
receiver (except possibly where such an appointment had already been
made by agreement in the divorce proceedings) and possibly again for
further directions in the cause of such liquidation …’’
(My underlining for emphasis).
[11] Mr Strydom
for the applicant has not referred me to any authority from the South
African Courts which comes to a different conclusion, i.e. that such
right of action is capable of enforcement before dissolution of
marriage and is susceptible of adjudication at the same time as the
dissolution of the marriage. Therefore, the part of the counterclaim
based on the accrual must be disallowed. The applicant has no
prospect of success on that claim at this stage of the proceedings
and the question of condonation in respect thereof does not arise. It
is trite that where there is no prospect of success, condonation
cannot be granted.
[12] The other
claim sought to be introduced is founded on a donation allegedly made
by the applicant to the respondent equivalent to N$450,000 which, she
alleges, she realized by selling immovable property she owned and
‘donating’ the proceeds therefrom to the applicant for
the benefit of his farming business. The respondent counters this
claim by stating that it too is not competent because donations
between married spouses are not allowed under Namibian Law. In terms
of section 22 of the MPA donations between spouses stante
matrimonio are
no longer prohibited.
That law however
is not applicable in Namibia and as such the common law position
prevails.
At common law
donations between spouses is not allowed although that rule works
substantial hardship to married women.
[13] No allegation
is made that the alleged donation falls within any of the recognised
exceptions. Based as it is on an alleged transaction that is
impermissible under our law, the cause of action relied on by the
applicant to found recovery from the respondent of the N$450 000 is
bad in law and cannot be sustained in this Court. The alleged
donation by the applicant to the respondent is therefore
unenforceable, whether it is brought by way of a conditional counter
claim or amendment. She enjoys no prospect on that claim and that
finding renders it unnecessary to consider the question of
condonation for its late filing.
[14] The last
claim relates to what is alleged to be applicant’s financial
contribution, stante
matrimonio,
to the joint household. It is premised on s.15 of the Married
Person’s Equality Act
which provides:
“15 Liability of
spouses married out of community of property for household
necessaries
(1) Spouses married out of
community of property are jointly and severally liable to third
parties for all debts incurred by either of them in respect of
necessaries for the joint household.
(2) Unless the parties agree
otherwise, a spouse married out of community of property before
or after the commencement of this Act is liable to contribute to
necessaries for the joint household pro rata according to his or her
financial means, and, in the case of a marriage subsisting at the
commencement of this Act, a spouse shall, notwithstanding the
provisions of section 3 of the Matrimonial Affairs Ordinance, 1955
(Ordinance 25 of 1955) which were in force immediately before the
commencement of this Act, be deemed to have been so liable as from
the beginning of such marriage.
(3) A spouse married out of
community of property has a right of recourse against the other
spouse in so far as he or she has contributed more in respect of
necessaries for the joint household than for which he or she is
liable in terms of subsection (2), and, in the case of a marriage
subsisting at the date of commencement of this Act, such right of
recourse is enforceable also with respect to the period of the
marriage before the commencement of this Act...’’ (My
underlining for emphasis).
[15] The applicant
claims that she contributed in the order of N$250,000 towards the
expenses of the joint estate and that she is entitled to
reimbursement thereof by the respondent. She makes no allegation that
such contribution was disproportionate to her financial means - an
allegation that is necessary to make for a claim under subsection (3)
of s 15 to succeed. If it was not a contribution towards necessaries
of the joint household, there is no conceivable basis on which that
amount can be claimed any way as it would then be, it appears to me,
an impermissible donation inter
vivos.
The respondent justifiably retorts that in terms of s 15, such a
claim can only be sustained if it is alleged and shown that the
claimant contributed more than his or her pro
rata share;
that no such allegation is made and that the claim is excipiable.
[16] In terms of
rule 23 of the High Court Rules, an opposing party may deliver an
exception to any pleading that is either (i) vague and embarrassing,
or (ii) lacks averments which are necessary to sustain an action or
defence; provided that where the exception is made on the basis that
a pleading is ‘vague and embarrassing ‘, the exceptee be
afforded the opportunity of removing the cause of complaint within
the specified time frames.
It is as yet
uncertain on which basis the respondent will except to the claim if
it were brought. I see no reason why that issue should at this stage
be finally determined. In any event, with the imposition of very
strict timelines for the further exchange of pleadings, in tandem
with an appropriate costs order, the prejudice to the respondent can
be cured in view particularly of the fact that an earlier date for
trial that had been assigned for the matter was vacated at the behest
of the Court.
[17] The present
potential defect in the proposed pleading, such as it is, is curable
by a rather simple and obvious amendment so as to allow for the
proper ventilation of all issues between the parties. True, the
particular claim sought to be introduced either by way of conditional
counterclaim or amendment is sought way too late in the day. I am
satisfied that it is not a prejudice that cannot be cured by way of
an appropriate costs order. The scope of it is very limited and
rather uncomplicated. I am therefore prepared to grant leave to the
applicant to introduce the claim in respect of it by way of
conditional counterclaim on the strength of the present application
before me. It would be setting a dangerous precedent to allow
introduction of what are otherwise new causes of action by way of the
rule 28 amendment procedure. I do not propose to consider that as an
option in this case, especially because it is possible to deal with
the matter on counterclaim basis. The same considerations apply to
the claim for divorce based either on the respondent’s admitted
adultery or desertion. He admits both the adultery and having ceased
living with the applicant and living instead in open adultery with
his new lover. I see no prejudice if the applicant were allowed to
introduce a claim for divorce on either basis, including a claim for
her maintenance. It would allow for a full ventilation of all issues
between the parties and is founded on largely common cause facts.
[18] Given the
rather belated stage at which the present application was brought, it
should come as little surprise to the applicant that the respondent
has opposed it. He is entitled to his costs for opposing it. There
really is no satisfactory explanation why it was brought only now. It
is apposite to mention that the intention to amend the applicant’s
pleadings was foreshadowed as far back as March 2011. Nothing was
done since then. There has been either dereliction of duty on the
part of applicant’s legal practitioners to comply with Court
orders in this case as quite rightly pointed out by the respondent,
or the applicant’s failed personally to infuse urgency in
pursuing whatever claims she allegedly has against the respondent.
She concedes in her papers that she had not given instructions for
the claims to have been brought earlier. She really has only herself
to blame for not doing so and must carry the costs burden that comes
with it. The dereliction of duty on the applicant’s legal
practitioners is exemplified by the following communication I was
compelled to direct to the parties on 6 August 2012:
"1. Argument in the
opposed application for condonation by the defendant to introduce 3
claims by way of conditional counter claim, alternatively by way of
amendment, was deferred on two occasions at the request of the
defendant's counsel for reasons known to all parties and which it is
not necessary to repeat here. I made clear at our meeting on 31 July
that I was going on recess and that it is not desirable to delay this
matter any further by giving a new date for argument which would in
the circumstances only be in the third term. At my request, the two
counsels agreed to waive the parties' right to oral argument and to
file supplementary heads of argument on or before noon on 3 August
2012, whereafter argument would be deemed reserved.
2. By the deadline for
supplementary heads of argument, only the respondent's counsel filed
their supplementary heads and the applicant's counsel failed to do so
and no explanation had been given for that failure. That failure had
the consequence that I was not able to finalize the ruling on
Saturday (4/8) before I could leave town on leave so that the
judgment could be delivered during the course of this week. The
defendant is deemed therefore to have waived the right to file the
supplementary heads of argument which had arisen from the waiver of
the right to make oral argument.
3. The parties are advised that
I have therefore taken the file with me on leave and will finalize
the ruling in the next two days. Depending on my ability to e-mail
the ruling, judgment will be delivered sometime this week on a date
to be advised by my clerk. Judgment shall in any event be either on
Wednesday or Friday at 10 am, and this must serve as sufficient
notice for the parties to note judgment on either of those dates, to
be confirmed also in the registrar's day cause list.”
[19] I must
express the nagging feeling I have since assuming management of this
file that the applicant is at pains to drag out finalization of this
divorce action and to make the dispute look larger than it actually
is. I said as much in the ruling on the rule 43 application. The
issues to be decided in this case are straightforward and should be
brought to trial without further delay.
[20] Based on all
of the foregoing, I come to the conclusion that the application to
bring conditional counterclaims based on the accrual, and alleged
donation must fail as they have no prospect of success. In respect of
the alleged contribution to necessaries for the joint household, and
to the extent that the applicant moves to remove the cause of
complaint, same has some basis in law. The claim for divorce on the
respondent’s admitted adultery, alternatively desertion is
based on what are largely common cause facts and there is no
prejudice to the respondent by their introduction, subject to strict
adherence to deadlines to be set in this order. The laxity on
applicant’s (or her legal practitioners’) part to
timeously file the claims contained in the present pleadings deserve
censure by way of a punitive costs order.
[21] I therefore
make the following orders:
A. In respect
of the application:
The application
for condonation for the late filing of conditional counterclaims
based on the accrual and donation, is refused, with costs, including
the costs of one instructing and one instructed counsel, on the
scale as between attorney and own client.
The application
for condonation for the late filing of a conditional counterclaim
for divorce based on adultery or desertion, coupled with a claim for
maintenance and alleged contribution towards the necessaries for the
common household is allowed; but costs are awarded to the respondent
for opposing same on the scale as between attorney and own client
and shall include the costs of one instructing and one instructed
counsel.
In respect of
case management:
Within 5 days
from this order, applicant shall file a conditional claim in terms
of paragraph 2 of Part A of this order.
Within 5 days
from such claim being filed, the respondent shall plead thereto,
unless he wishes to seek further particulars to such claim –
in which event he shall seek further particulars within 5 days of
such claim. The applicant shall then provide the particulars
requested within 5 days of such request being received and the
respondent shall thereupon file his plea within 10 days. The
applicant may replicate to such plea within 10 days.
The parties shall
convene a party’s conference within 5 days of the date on
which the applicant would have filed its replication and generate a
joint case management report and submit same to the managing judge
no later than 3 days of such meeting, whereafter the managing judge
shall give further directions.
Any failure to
comply with the directions hereinabove shall render the
non-compliant party liable for sanctions either at the instance of
the other party or the court acting mero motu, including an
order dismissing any claim or defence of the non-compliant party and
allowing the innocent party to proceed unopposed.
____________________
DAMASEB
JP
ON
BEHALF OF THE APPLICANT: Mr Albert Strydom
Instructed
by: THEUNISSEN, LOUW & PARTNERS
ON
BEHALF OF THE RESPONDENT: Mr Andrew Corbett
Instructed
by: BEHRENS & PFEIFFER
Voigts v Voigts (I 105/2009) [2012] NAHC 228 (08 August 2012);