NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: I 1298/2009

In the matter between:

NEVILLE GEROME CLOETE
........................................................................PLAINTIFF

and

BELINDA NAOMI GRIQUA
........................................................................DEFENDANT

Neutral citation:
Cloete v Griqua (I 1298/2009) [2012] NAHCMD 18 (9 October
2012)

Coram: VAN NIEKERK
J

Heard: 5 October
2011; 17 November 2011; 6 December 2011

Delivered: 9
October 2012

Flynote: Husband and
wife – Proprietary consequences – Forfeiture of
benefits of marriage in community of property - Making of specific
forfeiture order requires evidence of value of estate at time of
divorce and of all contributions made by spouses – Evidence not
sufficient to make such order – Equal division made regarding
proceeds of sale of immovable property sold after the final order of
divorce.

Summary: The
parties were previously married in community of property. The
defendant obtained a final order of divorce which included a general
forfeiture of benefits order. A specific immovable property was also
declared forfeited. Several years after the divorce the defendant
sold another immovable property which previously formed part of the
common estate. In respect of this property the plaintiff had always
paid the bond instalments both during and after the marriage. The
plaintiff obtained no share of the proceeds. He instituted action
against the defendant, claiming that the house never formed part of
the joint estate. This is clearly untenable in law. The defendant
defended the action claiming that she became the sole owner of the
property on the date of the final divorce order based on the general
forfeiture order. This view was also based on a legal misconception.
When both the errors of law were pointed out by the court, the
parties agreed to provide calculations and proposals to the court as
to how the proceeds of the sale of the immovable property should be
divided. The plaintiff proposed an equal division, whereas the
defendant tired to give effect to the general forfeiture order based
on contributions by the parties during the marriage. As there was not
sufficient evidence about the value of the common estate at the time
of the divorce and about the contributions by the parties, the court
divided the proceeds equally taking into account the contributions by
the parties after the final order of divorce.

ORDER

Judgment is given for the
plaintiff against the defendant in the sum of N$128 205-69. Interest
at the rate of 20% per annum is to be charged from 1 April 2012 on
any amount not yet paid. The defendant is ordered to pay the
plaintiff’s costs of suit.

REASONS FOR JUDGMENT

VAN NIEKERK J:

[1] The parties were
previously married in community of property. On 17 April 1998 the
defendant obtained a final order of divorce against the plaintiff. As
part of the final order the plaintiff was ordered to forfeit the
benefits arising from the marriage in community of property. The
plaintiff also forfeited any benefit in a specific immovable
property, namely a house at 818 Geelsysie Street, Khomasdal,
Windhoek.

[2] During the
subsistence of the marriage the plaintiff bought his parents’
house situated at Erf 2334, Khomasdal. He paid all the monthly
instalments during and after the marriage. In September 2006 the
defendant sold this house for N$240 000. Before and during the sale
of the house the parties were engaged in litigation regarding the
sale of the property in question. It is not necessary to deal with
the details of this litigation.

[3] In the matter before
me the plaintiff initially claimed payment of the purchase price on
the basis, inter alia, that he was the sole owner of the house at Erf
2334 and that the agreement between him and the defendant was that,
although the property was registered in both their names by virtue of
the marriage in community of property, the house would not form part
of the common estate. Clearly this is untenable in law and when same
was pointed out to the parties during the trial, it was accepted that
in fact the parties were joint owners of the house during the
subsistence of the marriage.

[4] The defendant’s
case was also based on a legal misconception and this is that, by
virtue of the order of forfeiture of benefits, she became the sole
owner of the house upon dissolution of the marriage. It is trite that
what the guilty party forfeits is not his own contribution, but the
benefit of sharing in the contributions made by the innocent party to
the extent that such contributions exceed those made by the guilty
party (NS v RH 2011 (2) NR 486 (HC) 497A-F; C v C 2012
(1) NR 37 [5], [22.3]). Furthermore, a general forfeiture order does
not operate upon a specific asset unless this is specifically claimed
and the necessary allegations and proof for the relief sought are
provided (C v C supra [22.5] – [22.7]). In this
case such an order was never made in relation to the property at Erf
2334. When all these aspects were pointed out to the parties, it
became common cause that the defendant was never the sole owner of
the house at Erf 2334 and that she was not entitled to sell the house
for her sole benefit.

[5] In light of these
developments it was agreed that the parties would present
calculations supported by documents to the court to determine how the
proceeds of the sale of the house should be divided.

[6] The defendant’s
calculations take into account certain alleged contributions made by
the parties during the subsistence of the marriage, some of which are
based on estimations. I agree with Mr Grobler on behalf of the
plaintiff that as a result of the efflux of time there is too little
evidence to determine the value of the estate at the time of the
divorce and to determine the contribution of each party to the joint
estate during the subsistence of the marriage. This would have been
necessary in order to determine if the general forfeiture order would
have had practical effect (C v C supra [22.6]). In the
circumstances it seems the most reasonable, practical and fair to
assume that the proceeds of the sale of the house at Erf 2334 be
divided on an equal basis and that the payments on the bond since the
divorce up to the time of sale be shared equally.

[7] Although the sale
price was N$240 000, the defendant received only N$128 726.99 after
certain expenses were deducted. The defendant was unable to provide
details of the expenses, except for the amount used to settle the
balance on plaintiff’s bond, which was N$94 593.52. In the
circumstances I can unfortunately not merely assume that all the
expenses were indeed incurred in relation to the sale of the
property. The balance on plaintiff’s bond included an amount of
N$ 8191.05 was used solely for the benefit of the plaintiff. It seems
to me then that the amount is to be calculated as follows:

N$240 000.00 (sale price
of house)

- N$ 94 593.52
(settlement of bond)

= N$145 406.48 (profit)

• 
  - N$127 387.00
  (instalments paid by plaintiff)

  
  

= N$ 18 019.48 ÷ 2

= N$ 9 009.74

• 
  - N$ 8 191.05
  (used for benefit of plaintiff)

  
  

= N$ 818.69

+ N$127 387.00
(instalments paid by plaintiff)

= N$128 205.69 (to
be paid by defendant)

[8] By agreement between
the parties mora interest would run with effect from 1 April
2012 on any amount not yet paid. As the plaintiff had to institute
action to obtain this judgment, the defendant ought to pay his legal
costs.

[9] The result is then
that judgment is given for the plaintiff against the defendant in the
sum of N$128 205.69. Interest at the rate of 20% per annum is to be
charged from 1 April 2012 on any amount not yet paid. The defendant
is ordered to pay the plaintiff’s costs of suit.

_________________

K van Niekerk

Judge

APPEARANCE

PLAINTIFF: Mr Z Grobler

Of Grobler & Co,
Windhoek

DEFENDANT: Mr B B Isaacks

Of Isaacks and Benz
Incorporated, Windhoek