Amadhila v Amadhila (I.77/96) [1996] NAHC 34 (08 November 1996);

household. I agree with the remarks of Joubert, J made in Jodaiken v Jodaiken, 1978(1) SA 784 (W) at 788H to 789 C:

"One of the legal consequences of marriage, whether in or out of community of property, is that the spouses owe each other a reciprocal duty of maintenance according to their means. Voet, 25.3.8; Crouse v Crouse, 1954 (2) SA 642 (0) at p. 643; Plotkin v Western Assurance Co. Ltd. and Another, 1955 (2) SA 385 (W) at pp. 394 - 395; Gildenhuys v Transvaal Hindu Education Council, 1938 W.L.D. 260 at pp. 263 - 264. Another legal consequence of mamage, whether in or out of community of property, and whether stante mathmonio or after dissolution by divorce, is that the duty of maintaining their minor children is common to the parents and must be borne by them according to their means. Voet, 25.3.4, 6, 16; Van Leeuwen, R. H. R., 1.13.7, 1.15.6; Censura Forensis, 1.1.10.1; Shanahan v Shanahan, 28 N.L.R. 15 at pp. 16 - 17; Union Government v Wameke, 1911 AD 657 at pp. 668 - 669; Farrell v Hankey, 1921 T.P.D. 590 at p. 596; Fillis v. Joubert Park Private Hospital (Pty.) Ltd., 1939 T.P.D. 234 at p. 237; Hartman v Krogscheepers, 1950 (4) SA 421 (W) at p. 423D; Ferreira v Minister of Social Welfare, 1958 (1) SA 93 (E) at p. 95E - F; Herfst v Herfst, 1964 (4) SA 127 (W) at p. 130C - D. Furthermore, a duty to maintain a person depends upon the reasonable requirements or needs of the person claiming it and the ability of the party from whom it is claimed to furnish it. Oberholzer v Oberholzer, 1947 (3) SA 294 (O) at p. 297. Another relevant circumstance is the social position of the parties. Shanahan's case, supra at p. 16, and cases already referred to."

The plaintiff's testimony, however, also painted a sorry picture of alcohol abuse on the part of the defendant and the all too familiar destructive consequences thereof on their relationship. To his credit, I must remark, the defendant never assaulted the plaintiff or the children whilst under the influence of intoxicating liquor, but his frequent drinking bouts led to neglect of his family, his duties as husband and father and ultimately diminished the plaintiff's love, affection and respect for him. The defendant did not seriously contest the allegations of alcohol abuse, the resultant neglect of his family and regular absence from home to indulge in such abuse. In cross-examination and in evidence he endeavoured to diminish the extent thereof. Without detailing the sordid particulars of the evidence in that regard, suffice it to say that after consideration of the evidence as a whole, I am satisfied that the plaintiff proved on a balance of probabilities that the defendant had made himself guilty of such conduct.

The defendant strenuously denied that he conducted himself in the manner complained of with the settled intention of terminating the marital relationship. He recognised that their children would be the innocent victims of their divorce and that

he and the plaintiff will one day stand in judgment before their children for having failed to give them a loving and complete family environment within which to grow up and to develop. Moreover, he testified, his parents and that of the plaintiff was not favouring a divorce and, after all, life being full of problems there is no reason why the plaintiff and he cannot solve theirs.

The family is recognised in Article 14(3) of our Constitution as the "natural and fundamental group unit of society and is entitled to protection by society and the State". Families are the fabric of a healthy society and should be afforded within legal limits protection by our courts. I endorse the conclusion reached by Van Zyl, J after examination of a number of earlier decisions about the status of marriage when he stated in Ex Parte Inkley and Inkley, 1995(3) SA 528 (C):

"What more needs to be said? The significance of marriage as one of the foundation stones of any civilised community still pertains to this day. It cannot simply be regarded as a consensual contract which can be breached and cancelled as easily as it was concluded. It is true that our legal system is a supple and dynamic one which will adapt to changing circumstances, just as the concept of public policy is not static. The values and attitudes of the community have not, however, changed in regard to the importance of maintaining healthy marriage relationships. It is still, in my view, characterised by a reluctance to see marriages dissolved without proper consideration being given to all the relevant facts and circumstances. And for this to be done, the Judge must be given the opportunity to consider and evaluate the relevant evidence at a hearing which must be commenced by

action They likewise reflect the concern of our law, from the earliest

times, in maintaining the marriage institution as a fundamental part of community life, thereby clothing it with a socio-legal rather than a purely legal character." (at 536F to I).

It is therefore not surprising that, when dealing with actions for divorce based on the common law ground of constructive malicious desertion, the courts have consistently held that a vital element thereof must always be "the serious, fixed and settled intention (as opposed to a transitory desire) of the defendant to terminate the marriage, or, at any rate, to terminate the cohabitation of the parties." See Benvenuti v Benvenuti, 1972(3) SA 587 (W) at 589F.

In the absence of utterances by the defendant proclaiming such an intention, the court must ascertain his state of mind from his conduct and interaction with the plaintiff during the subsistence of the marriage. It has, however, been emphasised him of the consequences thereof on their marriage. Although the defendant initially heeded her requests, he soon thereafter again fell into his old ways. More recently, however, he simply ignored her pleas and threads. During the beginning of 1995 the plaintiff left the common home for the first time as a result of the defendant's conduct. She took up residence in Okahandja for a period of four months. During that time the defendant requested her to return to him and solemnly promised to reform. She eventually submitted and returned to him. For a few months it went well, but then the abuse and neglect started again. Matters got progressively worse, until the plaintiff again left the common home on 24 December 1995 and instituted this action.

Can it be said in the circumstances that the defendant did not desire separation and behaved in the manner he did without appreciating the consequences of his abuse and neglect on his marriage? I think not.

Although the plaintiff bears the burden to prove that the defendant's conduct is the cause of the unbearable or intolerable situation which had arisen and that he intended to bring about a termination of the marriage, it must be remembered that, as in all cases where intent is an indispensable element of that which the plaintiff is required to prove, no distinction is made between direct, indirect and legal intent. See: Viljoen v Viljoen, 1968 (3) SA 581 (A) at 588F. The law has been correctly summarised, in my opinion, by Colman, J, when he stated the position in Froneman v Froneman, 1972(4) SA 197 (T) at 198G to H as follows:

"The law, as I understand it, is this: No conduct, however reprehensible, will constitute constructive desertion unless the necessary animus is present. The animus may take the form of dolus directus in the sense of a positive intention to put an end to cohabitation; or it may take the form of dolus eventualis in the sense of a knowledge by the defendant that the probable or possible effect of his conduct would be a termination of cohabitation, coupled with a wilful disregard of that possibility or probability. The animus may be proved by direct or indirect evidence of the defendant's state of mind; it may, in a proper case, be inferred from the circumstances, including the nature of the defendant's unlawful conduct."

Given the defendant's persistent misconduct of the nature disclosed by the evidence notwithstanding the repeated warnings by the plaintiff, her earlier departure from the common home as a result thereof, the numerous undertakings given by the defendant and (what must have been apparent to him) the neglect of on a number of occasions that, in evaluating a defendant's conduct, a court should be careful to apply the presumption that a defendant intends the usual and natural consequences of his or her conduct, without proper regard to the ^particular circumstances of the case and the character of the parties. See Collins v Collins, 1939 W.LD. 48 at 53, 54; Feldman v Feldman, 1949 (3) SA 493 (A.) at 504; Belfort v Belfort, 1961 (1) SA 257 (A) at 259F; Holland v Holland, 1975(3) SA 553 (A) at 561 A. This was also pointed out by Colman, J in Benvenuti's case, supra at •590G to H:

'The defendant's state of mind, according to such authorities as Belfort v Belfort, 1961 (1) SA 257 (A.D.), can be inferred from his utterances, his conduct and other relevant circumstances. The maxim that 'a man is presumed to intend the natural and probable consequences of his acts', although relevant, is not always a safe guide; nor is the fact that the defendant had been warned that the plaintiff would leave him or her if certain improper conduct was persisted in. It is pointed out in the authorities that even when there has been such a warning, the defendant's persistence in the conduct complained of may not be coupled with an intention to put an end to cohabitation. What the learned Judges who said that probably had in mind, among other things, was that there are, unhappily, husbands who persistently ill-treat their wives although they desire to continue cohabitation; that there are spouses who disregard warnings and threats of separation, not because they desire separation, but because they believe, or hope, that the threats will not be carried into effect, or because they are impulsive people who lose their self-control and act without appreciating, or being mindful of, the possible or probable consequences upon the marriage of their conduct."

Had the defendant only occasionally indulged in "insobriety of a not very serious kind' notwithstanding the plaintiff's protests and threats to leave him should he continue with such conduct, that in itself, no matter how reprehensible it may have been to the plaintiff, would not have been enough for the court to find that he had manifested such intention. Compare Collins v Collins, supra at 53.

The presumption is however premised on logic and, provided that it is applied with the necessary circumspection, an important tool to ascertain the defendant's state of mind.

I accept the plaintiffs evidence that the defendant abused intoxicating liquor with such frequency and to such an extent that cohabitation with him became intolerable for her. She frequently pleaded with him to refrain from overindulging and warned his family and deterioration of the marital relationship, I am satisfied that he had, at the very least, the requisite legal intent to terminate the marriage. In arriving at this conclusion, I am mindful of the defendant's expressed wish to continue with the marriage. Regard being had to his continuous misconduct, it seems to me on the evidence that there is a marked difference between his intentions and his desires. The two concepts, as Wessels, J.A. pointed out in Viljoen v Viljoen, supra at 588G to 589A, should not be confused and, when it is clear on the evidence that the defendant intended to terminate the marital relationship, his wishes becomes of lesser importance.

I am fortified in this conclusion by the evidence of the defendant's persistence in the abuse of liquor whilst this case was pending. He would regularly arrive in the early morning hours at the plaintiff's present place of residence in an intoxicated state, knock on the door and windows for hours on end and otherwise disturb the occupants of the house. On one occasion he even used an axe to bang on the trellis and, although I accept that he did not intend to use it to gain violent entry into the house, the mere wielding thereof must have inspired fear in the minds of the plaintiff and the occupants.

The very nature of the relief prayed for by the plaintiff contemplates an opportunity to be afforded to the defendant to restore conjugal rights. Being unrepresented in these proceedings, he may be well advised to remember that he will have to show on a that balance of probabilities on the return day of the order I intend to make that he bona fide, with a serious and genuine intent, offered to restore conjugal rights to the plaintiff — should he wish to continue with the marriage.

In the premises, the order I make is as follows:

The defendant is ordered to restore conjugal rights to the plaintiff on or before 20 December 1996, and failing to do so, to show cause on 17 January 1997 why -

3. a final order of divorce should not be granted;

4. custody and control of the three minor children born of the marriage should not be awarded to the plaintiff, subject to the defendant's

_>