IN THE HIGH COURT OF NAMIBIA
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN
Case no: I
In the matter between:
LOIDE EUFEMIA NUJOMA
JAPENI GOTTLIEB NUJOMA
Neutral citation: Nujoma v
Nujoma (I 3838/2011)  NAHCMD 88 (5 April 2013)
Coram: Schimming Chase, AJ
Heard: 13 March 2013
Delivered: 13 March 2013
Reasons delivered on 5 April 2013
Flynote: Return date of a rule
nisi in divorce proceedings (RCR) – Defendant wishing to
show cause why the rule should not be confirmed and why a final
divorce order should not be granted in respect of ancillary issues
relating to the estate of the parties – Court initially
granting defendant opportunity to file papers – Defendant
instead requesting further particulars to the particulars of claim.
Duties of officer of court – To
not mislead a court on effect of any incorrectly worded court order
after undertaking made to another judge that answering papers would
Summary: On the return date of
a rule nisi in divorce proceedings, the defendant who wanted
to deal with certain ancillary issues before the order was made final
was given leave to do so. The legal practitioner representing the
defendant undertook to file papers within one week. The divorce order
indicated that leave to defend was granted. The defendant’s
legal practitioner then filed a request for further particulars. When
the matter came before motion court again before another judge the
defendant’s legal practitioner represented to the presiding
judge that ex facie the order, the defendant had been given
leave to defend the action. This was done in full knowledge of the
undertaking made to the judge who dealt with the matter earlier that
answering papers would be filed in one week. At the later hearing the
legal practitioner conceded that he was aware that it was a return
date of a rule nisi and that the legal principles required
that answering papers should be filed. This was found to be a breach
of the duties of an officer of the court. The court granted a final
divorce order encompassing the division of the parties’ estate
on the terms set out in the restitution order. Costs were awarded on
an attorney and own client scale and the rule nisi reinstated
and confirmed. The principles in Gariseb v Bayerl 2003 NR 118
confirmed as regards reinstatement of rule nisi.
Having heard Ms Nambinga, counsel for
the plaintiff and having heard
Mr Mbaeva, counsel for the
defendant and having read the papers filed of record and the
arguments made by counsel on behalf of the parties it is ordered
1. The rule nisi issued on 13
August 2012 is hereby reinstated.
2. The bonds of marriage subsisting
between the plaintiff and the defendant are hereby dissolved.
3. Custody and control of the minor
child is awarded to the plaintiff subject to the defendant’s
rights of reasonable access.
4. The defendant shall pay maintenance
in respect of the minor child in the amount of N$500.00 per month,
such maintenance to be payable until such time as the minor child
5. The benefits of the marriage in
community of property are hereby divided and without derogating
therefrom, due regard being had to the various movable properties of
the parties, it is specifically ordered that the plaintiff shall make
payment to the defendant in the amount of N$134,918.58 within a
period of six months from the granting of this order of divorce, and
that ownership in respect of Erf 2975 Stephenson Street, No 26,
Windhoek North, Windhoek become vested in the plaintiff.
6. The defendant is ordered to pay the
plaintiff’s wasted costs on an attorney and own client scale
including the costs occasioned by the plaintiff on the dates of 19
November 2012 and 13 March 2013.
On 13 March 2013 I made the order set
out above granting the plaintiff a final order of divorce inclusive
of ancillary issues. I indicated that reasons will be provided for
the above order and the reasons are set out below.
This is a return date of a rule nisi
in terms of which Mr Justice Smuts on 13 August 2012 granted
judgment for the plaintiff for an order for restitution of conjugal
rights and ordered the defendant to return or to receive the
plaintiff on or before 24 September 2012, failing which to show
cause if any to the court on 22 October 2012 at 10h00 why:
The bonds of marriage subsisting between the plaintiff and the
defendant should not be dissolved;
The custody and control of the minor child is awarded to the
plaintiff subject to the defendant’s rights of reasonable
The maintenance for and in respect of the children (sic) in
the amount of N$500.00 per month, per child (sic) payable
until such time as the said children (sic) becomes
Division of the benefits of the marriage in community of property and
without derogating therefrom, due regard being had to the various
movable properties of the parties, that it specifically be ordered
plaintiff make a payment to the defendant in the amount of
N$134,918.58 within a period of six (6) months from the granting of
the order of divorce, and that ownership in respect of Erf 2975,
Stephenson Street, No 26, Windhoek North, Windhoek become vested in
I point out at this stage that with
regard to the above restitution order, the plaintiff instituted
action for divorce via combined summons on
15 November 2011. The
combined summons and particulars of claim was served on the
defendant personally on 28 December 2011. It is apparent ex facie
the return of service “that
the combined summons together with the particulars of claim and
annexures “LEN1” up to “LEN5”, was
exhibited to the defendant at the same time at which a true copy was
personally handed to him with an explanation of the nature and
content thereof. On or about 3 July 2012, the plaintiff filed
amended particulars of claim which were also personally served on
the defendant comprising annexures “LEN1” up to “LEN27”
and the original was exhibited to the defendant comprising an
explanation as to the nature and content thereof on 18 July 2012.
It was on this basis that the
plaintiff led her evidence at second motion court resulting in the
restitution order referred to above being granted. The court was
functus when the restitution order was granted.
On 1 October 2012, the plaintiff
deposed to an affidavit of non-return which was delivered on the 3rd
of October 2012. On the return date of the rule nisi on 22
October 2012, Ms Nambinga appeared on behalf of the plaintiff and Mr
Mbaeva for the first time appeared on behalf of the defendant. Mr
Mbaeva submitted to Mr Justice Geier the following:
MBAEVA: Thank you My Lord, My Lord at this I seek instructions from
my client regarding the granting of the final order. He is in
agreement that a final order can be granted provided the ancillary
issue stand down or stand over. There is also authority to that
effect, the Vahekeni matter here would apply.
What is your client intending to do?
MBAEVA: My client intends to contest the ancillary issue of the
Be a bit more specific Mr Mbaeva.
MBAEVA: Yes my client intends to contest the issue of the immovable
property and the other immovable properties which appear in the
prayers of the plaintiff My Lord.
Is that all?
MBAEVA: That is the main issue, we do not have a problem with
but those are the properties we
do have an issue.”
After Mr Justice Geier found that the
defendant should be granted an opportunity to put his version before
court, the following also appears form the transcript of the above
Why should he not be given the opportunity to put his version before
NAMBINGA: My Lord, if an application is brought to do so then
Yes, obviously we will have to file some form of affidavit.
NAMBINGA: Yes, but my view is My Lord that this is not before this
court today and so (intervention).
That is so but why should I not give that opportunity? I can put the
defendant to terms.
NAMBINGA: My Lord there is nothing before the court, I do not know
why it is that the defendant’s attorney or the defendant has
not done so.
No they will have to file papers Ms Nambinga to make out a case or
NAMBINGA: My Lord respectfully my view is that it should have been
done before today.
Yes but even if it comes I am not prepared to shut the doors of the
court in the face of the defendant. Even if admittedly it is correct
that this notice to defend is late, yes that is something that can be
cured possibly by a cost order. But I will not prevent a party from
possibly revisiting some of the issues which are capable of being
revisited. Obviously some of the issues are final already and in that
regard your client’s case has progressed surely but there are
other issues in respect of which I will give them the opportunity.
Whether they can make out a case is another matter and that will have
to be determined after there has been a proper exchange of papers or
oral evidence if needs be.”
The court went further to ask the
Yes, I just want to, sorry maybe I could do it with reference to this
calendar here. Mr Mbaeva?
MBAEVA: Yes My Lord.
How much time do you need to file an Affidavit?
MBAEVA: A week My Lord.
Then I direct that you file such papers that you may wish to file on
or before the close of business of 29 October?
MBAEVA: That is in order My Lord.
Ms Nambinga you want to write reply I suppose?
NAMBINGA: That is correct My Lord.
How much time do you require, also a week?
NAMBINGA: I think a week would be (intervention).
So that will take us to the 5th
NAMBINGA: In order.
We can then have a reply of Mr Mbaeva, by the close and I will extend
the return date to the 19th.”
The transcript also dealt with the
order made as follows:
Yes very well then the Defendant having indicated his intention to
defend the matter is hereby granted leave to file such papers as he
may be (indistinct). On or before the close of business of 22 October
2012. The Plaintiff is entitled to file answering papers thereto on
or before the close of business of 29 October 2012. The Defendant is
and can reply thereto if he so chooses on or before the close of
business on 5 November 2012. The rule is hereby extended to 12
November 2012 at 10:00.”
The order of Court made on 22 October
2012 by Mr Justice Geier reads as follows:
heard Ms Nambinga counsel for the plaintiff and Mr Mbaeva for the
defendant having read the documents filed of record
the defendant is granted leave to defend.
the defendant file papers on or before 29 October 2012 and the
plaintiff to file a reply on/ before 5 November 2012.
the matter is postponed to 19 November 2012.
the defendant pay wasted costs.”
On 19 November 2012 both counsel
still on record for the parties, appeared before Mr Justice Unengu
Acting at second motion court. The transcript of these proceedings
was also provided to the court. During these proceedings Ms
Nambinga, counsel for the plaintiff, sought to bring the court into
the picture as to why the matter was extended to 19 November 2012.
She stated the following:
Lord I would just like to bring the Court into the context of whcy
this matter was postponed to or extended to today. In essence My Lord
this matter was postponed for the following reasons, on the 22nd
of October 2012 the parties appeared before Your Lordship’s
brother Justice Geier to hear whether or not the restitution order
that was granted in this matter should may (sic)
not be made final. On that day the defendant had filed the noticed to
and power of attorney in respect of this matter and the plaintiff
argued that the defendant at that interim (sic)
could not join the flare of these proceedings by virtue of the fact
that he did not file an affidavit to this court to explain why the
restitution order should not be made a final order. The defendant
argued that it has an in factual (sic)
an intention to want to join the flare in these proceedings and in
essence seek the court or seek from the court that in fact it would
put its reasons before this court so the court can consider the
issues. Primarily the issues were relating to the (indistinct) relief
in support of that of the plaintiff vis a vis the orders made in
respect of the properties of the parties. The court then granted that
the matter be postponed to 19 November and in the interim the parties
file papers, the defendant file before 29 October and for the
plaintiff to reply on or before 5th
November. The court will then argue the matter or would hear
arguments on this matter today.”
Further Ms Nambinga submitted the
NAMBINGA: In the interim the defendant filed a request for further
particulars, the plaintiff wrote letter and indicate say (sic)
we have not seen your papers in accordance and in the spirit and
purport of what the court granted on the particular day and we are
now seek (sic)
to see why it is or cause that the defendant shows why this court
should not grant this order today. On this basis My Lord I submit
that those papers are still not before this Court today and would
seek to as far as the plaintiff is concerned to motivate for final
order. Previously the parties relied on a case that is Vahekeni v
Vahekeni, I submit My Lord that if the court wants to hear argument
on this aspect, we are prepared to tender argument and seek for a
final order of divorce.”
Mr Mbaeva submitted the following to
Mr Justice Unengu Acting:
MBAEVA: My Lord the order of the 22nd
October 2012 paragraph 1 grants leave to the defendant to defend the
granting leave obviously means that a plea has to be filed. Now we
cannot file a plea without requesting further particulars and this is
what we have done. The order does not specify what sort of papers
must be filed, this is one of the papers which the defendant filed.
To that we have not received any reply so I request for further
particulars. So on this basis alone now My Lord I do not think that
the plaintiff is entitled to a final order as of today.”
Mr Mbaeva also stated the following:
MBAEVA: Yes My Lord there is one issue which is very, very critical,
it is the fact that the plaintiff is alleging that the parties are
married in community of properties (sic)
and they are asking further particulars on that then my take would be
for this matter to be taken to case management so that we can
ventilate the issue there, not in motion court.”
Subsequent to the above submissions,
Mr Justice Unengu Acting indicated that there was not sufficient
information to enable him to make a decision and that he would wish
to hear properly the ventilation of both issues in front of him as a
result of which he extended and postponed the matter to a date to be
arranged with the registrar.
The court order dated 19 November
2012 reads as follows:
heard Ms Nambinga, counsel for the plaintiff and having read the rule
issued by this Honourable Court on 13 August 2012 and other documents
filed of record:
That the said rule nisi
is hereby extended and the
matter postponed to a date to be arranged with the registrar.”
The matter came before me on the
interlocutory roll on 22 January 2012. At that stage the transcripts
of the proceedings were not made available and it was not clear what
relief was being sought and what issues were to be determined.
Furthermore, no heads of argument had been filed by either side to
be adjudicated on. As a result an opportunity was provided to the
parties to get their papers in order and to obtain an alternative
date for the hearing of this matter. In the result, the following
order was made on 22 January 2013:
heard Ms Nambinga, counsel for the plaintiff and Mr Kasper for the
defendant and having read the documents filed of record:
the matter is hereby postponed to a date to be arranged with the
I also requested the parties to
properly paginate the court file, to provide me with an indication
of what this matter was about and what this court had to adjudicate
on, and also to provide heads of argument or any further necessary
documentation in order to assist the court.
On 12 March 2013, the plaintiff’s
legal practitioner provided an index which included the pleadings,
the restitution order made by Mr Justice Smuts on 13 August 2012 as
well as transcripts of the hearing before Mr Justice Geier on 22
October 2012 and before Mr Justice Unengu Acting on 19 November
2012. The plaintiff’s legal practitioner also delivered a
she submitted set out what relief the plaintiff was seeking and the
legal basis for the relief sought. In essence the plaintiff sought
an order reinstating the rule nisi previously granted in
court on 13 August 2012 by Mr Justice Smuts as well as an order that
the aforesaid rule nisi be made final. The matter was argued
in full before me on this date.
Ms Nambinga submitted that at the
hearing of 22 October 2012 before Mr Justice Geier, the court
ordered that the parties file affidavits to show cause why the
ancillary relief sought in the restitution order should not be made
final. Since that date, no such affidavits had been filed. Yet Mr
Mbaeva sought to file a request for further particulars instead.
This aspect is set out in the relevant portion of the transcript
Mr Mbaeva appearing on behalf of the
defendant made identical submissions to this court as he made to Mr
Justice Unengu Acting at the hearing of 19 November 2012, namely
that the court order of Mr Justice Geier indicated that the
defendant had been granted leave to defend and further that it was
not clear what papers were being referred to in the court order,
thus he was permitted to request for further particulars.
I specifically requested Mr Mbaeva to
address the court on the representations made ex facie the
transcript of proceedings to Mr Justice Geier on 22 October 2012, on
the return date of the restitution order, to the effect that he
relied on the case of Vahekeni v Vahekeni
for the defendant’s right to address the court on ancillary
issues and further that he undertook to the court that he would file
the defendant’s affidavit within one week.
Mr Mbaeva conceded that he had made
such an undertaking to court, but submitted that the court order by
Mr Justice Geier stated in paragraph 1 that the defendant had been
granted leave to defend, and further that a notice of intention to
defend had been filed. Accordingly he was entitled in the
circumstances to file a request for further particulars. He also
conceded, after an inquiry from the court whether it was competent
to file a notice to defend and in particular a request for further
particulars, instead of an affidavit showing cause why the ancillary
relief contained in the restitution order should not be made final,
that it was not competent for the request to be filed. But he
persisted that the order indicated that a notice to defend could be
filed. On that basis he submitted that the parties should be allowed
to ventilate their issues in accordance with the procedure he had
set in motion.
Before I deal with the main issues
regarding why I granted a final order of divorce, I first deal with
the aspects relating to the return date of the restitution order.
As stated above, the restitution order was granted on 13 August
2012. Mr Justice Geier postponed the matter to 19 November 2012. Mr
Justice Unengu Acting ordered that the rule nisi be extended
and that the matter postponed to a date to be arranged with the
registrar. On 22 January 2013 for the reasons set out above, I also
made an order that the matter be postponed to a date to be arranged
with the Registrar.
It is well established for purposes
of the granting of divorces in this court that if a defendant has
not defended an action for divorce when the combined summons and
particulars of claim has been personally served on that defendant,
that the plaintiff may lead evidence in support of the claim for a
divorce and any ancillary relief. It is further trite that the court
does not after hearing the evidence grant a final order of divorce.
It grants a restitution order in the form of a rule nisi
calling upon the defendant to show cause why the order should not be
made final and why the ancillary relief claimed in that order should
also not be made final. The restitution order is also personally
served on the defendant.
The rule nisi is an interim
order. As such, it cannot be postponed. It can only be extended, or
discharged or confirmed. It was accordingly not competent for the
rule nisi or restitution order to be postponed. In Gariseb
Mr Justice Hoff made it clear that any practice of postponing
rules nisi to dates to be arranged with the Registrar should
be discouraged since it invariably bears the consequences of
uncertainty and vagueness and opens itself to differing
interpretations. It is clear that neither of the earlier judges
hearing this matter nor I intended to postpone the rule nisi.
Thus the rule is expressly reinstated in these proceedings.
As to whether the rule should be
extended again or made final, it is clear that Mr Mbaeva undertook
to file affidavits and that this was the correct procedure to follow
in this matter, in order for the presiding judge to determine
whether the restitution order should be made final on the ancillary
issues. This is clear from the transcript of proceedings before Mr
Justice Geier. Despite this undertaking, Mr Mbaeva sought to
opportunistically interpret the court order of Mr Justice Geier
(through unfortunately worded) as the granting of leave to defend
the divorce action and misrepresented the true facts, in particular
his undertaking as well as the proper procedure to follow to Mr
Justice Unengu Acting on 19 November 2012.
Section 33(1)(b) of the Legal
dealing with unprofessional or dishonourable or unworthy conduct by
a legal practitioner defines such conduct to inter alia
include wilfully misleading a court or tribunal, or allowing it to
be misled. The learned author CG Marnewick,
stated that counsel’s
duty to the court requires him or her inter alia not to
deceive the court knowingly or recklessly on the facts or the law,
and not to present argument or points which are obviously specious
or frivolous. “Mislead”
is defined in the Concise Oxford Dictionary as “causing
a person to go wrong in conduct or leading astray or in the wrong
direction”. This, unfortunately, is exactly what Mr
Mbaeva , a senior legal practitioner, did. In fact, he went further.
He breached his undertaking to Mr Justice Geier, and thus to the
court, which amounts to contempt of court.
In light of this behaviour, I see no
reason why the defendant should be given the opportunity to do what
was undertaken some time ago on
22 October 2012. This matter
dragged on unnecessarily due to the conduct of the defendant’s
legal practitioner, and after the defendant failed on two separate
occasions to defend proceedings personally served on him and
containing pleadings and annexures indicating exactly the evidence
that the plaintiff would lead at the hearing, as well as the
documentation she would rely on. The failure of the defendant to
defend and the failure of the parties to properly comply with the
court order dated 22 October 2012, coupled with Mr Mbaeva’s
conduct makes it clear that the parties lost their entitlement to
any further chances to lead evidence on the ancillary issues. In the
result the restitution order is made final as set out in the above
As regards the question of costs, I
was initially inclined to grant a costs order de bonis propris.
However, based on what I set out in the above paragraph, I find that
the defendant is also not innocent. The conduct of the defendant,
and in particular his legal practitioner, was clearly vexatious and
a special costs order is warranted, in this case on an attorney and
own client scale.
A copy of this judgment shall be
delivered to the Law Society of Namibia for consideration of its
PLAINTIFF: Ms Saima Nambinga
Of AngulaColeman, Windhoek
DEFENDANT: Mr Mbaeva
Of Mbaeva & Associates, Windhoek
CC: The Law Society of Namibia