CASE NO. I 758/08

IN
THE HIGH COURT OF NAMIBIA

NOTHERN
LOCAL DIVISION

HELD
AT OSHAKATI

In
the matter between

ANITA
TJOMBE (born IZAAKS)
…...................................................................PLAINTIFF

and

FERDINAND
TJOMBE
…...............................................................................DEFENDANT

CORAM:
Tommasi, J

HEARD
ON: 15, June 2009

DELIVERED
ON: 15 June 2009

REASONS RELEASED ON:
15 March 2012

REASONS FOR ORDER
GRANTED ON 15 JUNE 2009

[1] The plaintiff, an
adult female instituted action against the defendant, for divorce. On
30 March 2009 the Court granted an order for the restitution of
conjugal rights calling upon the defendant to return to the plaintiff
on or before 11 May 2009 failing which to show cause, if any on or
before 8 June 2009 why the bonds of marriage between the plaintiff
and the Defendant should not be dissolved and why the agreement
between the parties, annexed to the order as annexure “B”,
should not be made an order of Court. This order was served on the
defendant on 23 April 2009 and the plaintiff filed an affidavit of
non-return on 19 May 2009.

[2] On 8 June 2009 the
return date of the rule
nisi
was extended to 15 June
2009 and the Court ordered the Defendant to pay the wasted costs.

[3] On 11 June 2009 the
defendant, without the assistance of a legal representative,
filed the following
documents: Notice of intention to defend; Notice of application for
legal aid; Notice of intention to request postponement of the case;
Notice of intention to apply for permission to submit documents as
court records.

[4] The plaintiff on the
same date filed an additional affidavit of non-return.

[5] Ms Duvenhage,
appearing on behalf of the plaintiff submitted that the plaintiff had
served the restitution order on the defendant, has
shown to the Court that the defendant did not restore conjugal rights
to the plaintiff, and that the plaintiff was under these
circumstances entitled to a final order of divorce. She referred the
Court to Vahekeni
v Vahekeni¹.
It is
indeed so that the function of the Court at this stage of the
proceedings is to:

“… see that there has
been due service of the restitution order, and whether there has been
return on the part of the defendant.”²

[6] The defendant,
appearing in person, submitted to the Court that he needed a
postponement in order to further oppose the granting of a final order
herein. He submitted that he had offered to restore conjugal rights
and that he wished to place further facts before the Court in order
to have the agreement, which he had signed under duress, set aside.

[7] The notice for
permission to file further documents incorporated a notice that the
defendant intended to apply for an order in terms whereof the
Plaintiff is ordered to refrain from her persistent unacceptable,
malicious and unlawful conduct in that she had claimed that the bonds
of marriage between them had been legally terminated; sold property
belonging to the joint estate; made false claims of harassment;
preventing the defendant access to the management of a business
operation which legally belongs to him, preventing him from
investigating irregular practices in his afore-said business;
preventing him access to his children since February 2008; and making
physical threats that her brothers would do him bodily harm. It
should be noted that the parties had already entered into an
agreement wherein they agreed on the division of the joint estate.
The defendant in terms thereof had agreed that the plaintiff should
be the sole and exclusive owner of the member’s interests in
the business operation referred to herein by the defendant.

[8] Letters were attached
to this notice wherein that the defendant stated that he became aware
of the fact that plaintiff sold a vehicle leased by the defendant
during April 2009. The defendant waited until 11 June 2009 to give
notice to the plaintiff of his intention to further litigate. The
plaintiff had every expectation that the defendant has withdrawn his
opposition to the divorce action, that the custody and control,
access and maintenance of the minor children; and the division of the
joint estate had been settled between the parties. The reason
advanced by the defendant for this delay was the lack of financial
resources to employ the services of a legal representative. In this
regard the defendant filed a notice of intention to apply for legal
aid. The Defendant therefore had not done anything in the interim to
apply for legal aid. The defendant addressed a letter to Trusco
Namibia Ltd to request the said company to restore his insurance
contract in order to secure coverage for legal costs. This letter was
also only dated 9 June 2009. No reasonable explanation was advanced
for the delay by the defendant to timeousely inform the plaintiff of
his intention to bring all these applications.

[9] The matter has been
settled almost a year after it was instituted and issues such as the
custody and control, access and maintenance of the minor children
were finally resolved. A further delay would not only prejudice the
plaintiff, who according to defendant had already acted on the
strength of the settlement agreement, but also the well being of the
minor children whose. No cost order would be able to remedy this.

[10] The facts of this
case differ from the facts in Vahekeni v
Vahekeni, as the defendant herein had entered
into a settlement agreement wherein the ancillary matters were
disposed off by way of compromise reached between the parties. The
defendant would still be in a position to approach the Court to file
the various applications he intended to bring whereas the plaintiff
and the minor children’s status would remain hanging in the
balance.

[11] The plaintiff had
filed two affidavits wherein she informed the Court that the
defendant had shown by his actions that he had no intention to return
to her. The defendant submitted that he had offered to restore
conjugal rights to the plaintiff who refused to receive him. The
defendant in the aforesaid letters he had written, complained about
the plaintiff’s conduct and described her as being deceitful
and malicious. It was evident that the relationship between the
parties had become extremely acrimonious. A cursory look at the
documents filed by the defendant disclosed that he still harbored
feelings of resentment toward the plaintiff and that he had no
intention to in fact return to the plaintiff. The clear intention of
the defendant was to further litigate against the plaintiff and to
this end the submission that he wished to return to the plaintiff was
merely a ruse to afford him more time to do so.

[12] The defendant was
served with the restitution order on 23 April 2009 and he failed to
approach his legal practitioner of record with instructions to make a
formal offer to return to the plaintiff and raised it for the first
time when addressing the Court to request a postponement herein. The
onus is on the defendant to, on the return date, show that he had
returned to the plaintiff or that he had made a genuine offer to
resume a lasting marital life which he had failed to do.³

[13] The acrimony between
the parties, the wellbeing of the children, the clear delaying
tactics of the defendant; and the failure of the defendant to make a
genuine attempt to restore conjugal rights, motivated the Court not
to grant a further postponement.

[14] The Court was
satisfied that the Court order was served on the defendant, that he
had sufficient time to restore conjugal rights and that he had failed
to do so. For these reasons the Court granted an order that the bonds
of the marriage subsisting between the Plaintiff and Defendant to be
dissolved; and that the agreement between the parties filed of record
and marked “B” to be made an Order of Court.

____________________________

TOMMASI, J

COUNSEL
ON BEHALF OF THE PLAINTIFF:
Ms H Duvenhage

INSTRUCTED
BY: Etzhold-Duvenhage

COUNSEL
ON BEHALF OF THE DEFENDANT: In
person

P.O.Box
22127

Windhoek