REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK | |||
JUDGMENT | |||
Case number: HC-MD-CIV-APP-AMC-2024/00002 | |||
In the matter between: | |||
HAFENI HANGULA | APPELLANT | ||
and | |||
LYDIA HAUFIKU | RESPONDENT | ||
Neutral citation: | Hangula v Haufiku (HC-MD-CIV-APP-AMC-2024/00002) [2025] NAHCMD 86 (7 March 2025) | ||
Coram: | SCHIMMING-CHASE J et DE JAGER J | ||
Heard: | 25 October 2024 | ||
Delivered: | 7 March 2025 | ||
Flynote: Maintenance Act 9 of 2003 – Section 5(c) – Being satisfied that the person fails or neglects to provide reasonable maintenance is a conclusion to be drawn from the facts on the evidence adduced – Section 16(2) – The nature of a maintenance enquiry is dictated by the case circumstances and facts established by the evidence adduced and the issues arising therefrom.
Summary: This is an appeal against the judgment and order of the Windhoek Maintenance Court whereby the appellant was ordered to pay N$2000 monthly maintenance for the parties’ minor child, to add the child to his medical aid and to buy his seasonal clothing. The grounds of appeal are that the court a quo erred and/or misdirected itself as follows. By finding that the appellant failed or neglected his duty to provide maintenance and that his contribution was inadequate for the child’s needs. By failing to investigate the child’s needs and their associated expenses. By failing to consider the respondent’s income and expenses. By failing to determine the respondent’s maintenance contribution. By not finding that both parents must share the duty to maintain. By failing to consider the appellant’s duty to maintain another child. By failing to assess the parties’ lifestyle, income and earning capacities. By finding that the respondent, instead of the maternal grandmother with whom the child resides, is more suitable to receive the maintenance.
Held that, an appeal court may interfere with a court a quo’s factual findings if there was a misdirection on the facts and/or a clearly wrong finding.
Held that, the condition precedent in section 5(c) of the Maintenance Act 9 of 2003 that the person against whom the maintenance order is sought fails or neglects to provide reasonable maintenance is a conclusion to be drawn from facts and on the evidence adduced. The appellant’s conduct on the facts amounted to neglecting his duty to provide maintenance. There was no misdirection by the court a quo on the facts in coming to that implied conclusion.1
Held that, the court a quo’s implied finding that N$1000 was inadequate as a contribution to the child’s maintenance was correct. The facts supported that implied conclusion, and there was no misdirection by the court a quo in coming to that implied conclusion.
Held that, the nature of a maintenance enquiry is dictated by the case circumstances and facts established by the evidence adduced and the issues arising therefrom. On the issues arising from the case facts and circumstances, there was nothing to investigate in more detail and the parties’ lifestyles, income, expenses, and earning capacities were irrelevant. The court a quo did not err in how the maintenance enquiry was conducted.
Held that, with the child’s total monthly expenses being N$3920 and the appellant being ordered to pay N$2000, the respondent’s contribution was logically determined to be the remainder of N$1920, and it was logically concluded that both parents share the duty to maintain the child.
Held that, the appellant’s ability to contribute N$2000 to the parties’ child was not an issue in the court a quo proceedings and even when the appellant spoke about his other child, he did not testify that he could not contribute N$2000 in maintenance to the parties’ child. As such, the appellant’s duty to maintain his other child was not an issue in the court a quo proceedings.
Held that, the court a quo did not order the respondent or the maternal grandmother to receive the maintenance money. The appellant was ordered to pay it to the clerk of the court for the child’s benefit. The respondent would collect it for the child’s benefit. The fact that the respondent may give some of the maintenance money to her mother for performing nanny services in looking after the child is no ground to overturn the court a quo’s judgment and order.
Held that, none of the grounds of appeal are upheld.
Held that, the appellant’s condonation application for the late delivery of his latest heads of argument cannot succeed because their content differed from the first set, and so the explanation provided for its late delivery is insufficient and unreasonable, and the appeal’s prospects of success were not addressed in that condonation application.
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ORDER
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The appellant’s condonation application for the late delivery of his latest heads of argument is dismissed.
The appeal is dismissed.
The appellant must pay the respondent’s costs, limited to disbursements.
The matter is finalised and removed from the roll.
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JUDGMENT
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DE JAGER J (SCHIMMING-CHASE J concurring):
Introduction
This is an appeal under section 47(1) of the Maintenance Act 9 of 2003 (the Act) against the judgment and order of the Windhoek Maintenance Court delivered on 7 November 2023. The appellant was ordered to pay N$2000 monthly maintenance, effective 20 November 2023, through the court clerk on behalf of the beneficiary (the child), to add the child to his medical aid and to buy his seasonal clothing.
In the notice of appeal, it is prayed that the judgment and order be set aside. In the appellant’s initial heads of argument, it is prayed that the court a quo’s order be set aside and that the appellant be ordered to pay N$1000 maintenance per month. During oral argument, it was prayed that the matter be remitted to the court a quo for a proper inquiry into whether the appellant failed or neglected to pay maintenance and ascertain the child’s needs.
The grounds of appeal are that the court a quo erred in law or fact and/or misdirected itself as follows:
By finding that the appellant failed or neglected his duty as a father to reasonably maintain the child within his means. Alternatively, by finding that his monthly contribution of over N$1000 or goods and food in the sum of N$1000 was inadequate to meet the child’s needs.
By failing to thoroughly or adequately investigate, evaluate and/or ascertain the child’s genuine needs or necessities and the associated expenses required to fulfil those needs.
By failing to consider the respondent’s income and expenses and investigate, assess and determine the respondent’s monthly contribution. Alternatively, not finding that both parents must fairly share the duty to maintain the child.
By paying lip service or not at all considering that the appellant, like the respondent, has a duty to maintain his other child, which is no less than the duty to maintain the parties’ child. Alternatively, by not finding that the appellant has a duty to maintain his other child in equal measures.
By failing to consider and or adequately assess the parties’ lifestyle, income and earning capacities. Alternatively, finding and ordering that the respondent, instead of the maternal grandmother where the child resides, was more suitable to receive the N$2000 monthly maintenance.
The respondent, who represents herself, opposed the appeal. She disagreed with the appellant’s request to pay N$1000 monthly maintenance.
The facts
The respondent, Lydia Haufiku, is the child’s biological mother. In the court a quo proceedings and under the Act, the child was the beneficiary, the respondent was the complainant, and the appellant, Hafeni Hangula, was the defendant. The respondent sought maintenance from the appellant because he is the child’s biological father.
On 7 November 2023, the matter was on the court a quo’s roll for a formal maintenance enquiry. There were two mediation sessions beforehand. According to the maintenance officer, the parties agreed at the second mediation session to a monthly amount of N$2000 plus 50/50 co-payment and for the defendant to buy seasonal clothes. The maintenance officer informed the court that the point of contention was that the appellant did not want to pay the money to the respondent or maternal grandmother, and the maintenance officer asked the court to enquire if the agreement was still in place.
Upon being asked by the court a quo, the appellant denied having agreed to N$2000 and explained he could not agree to give his money to the maternal grandmother. After the court explained to him to answer the question, he acknowledged having agreed to N$2000, but then he backtracked on it and complained that he brought proof of the things he bought, but the respondent failed to do the same to show what she spends on the child per month. It was explained to him that if N$2000 were agreed, the court would go with that amount. The appellant then brought up the issue that he also wanted to stay with the child, and that he did not agree for the child to stay with the maternal grandmother. Thereafter, the enquiry started.
The respondent testified as follows.
The child was born on 2 June 2022.
The appellant ended their relationship.
In August 2023, the child started living with her mother after the appellant told her father that she could have no other man if she lived with his child. Her father then said the child must stay with them for the respondent to be free to see other men. There was a fight when the appellant went to see the child, and he refused to go home, insisting on sleeping with the respondent. When the appellant supported the child, there was a condition that she should either sleep with him or lend taxi money to him so he could go to work and get money to provide for the child. When he would visit the child, he would sleep in the respondent’s room, and there was an occasion when he slept with her with a threat that if she did not allow him to see the child and chase him away, he could not support the child. From there, the child stayed with the respondent’s mother.
The appellant used to buy things for the child based on a list provided by the respondent, but he would buy things he wanted to buy and not what she asked for. The following month, he blocked her, and she could not send him the list. The appellant used to pay N$1000 until their relationship ended. That amount was insufficient for the child’s maintenance.
The required items for the child and what they cost per month were as follows. N$400 for food, N$1500 for milk, N$520 for nappies, N$500 for toiletries, N$180 for medical aid, and N$1000 for the nanny. N$1500 is required per year for clothes. She also wanted the child to go on the appellant’s medical aid. She explained she already has her other child on her medical aid, and it is getting too expensive for her. The appellant has another child, a boy of 13 years, supported by the respondent and that child’s father, who recently lost his job. The court a quo asked about that child’s school and living arrangements and about the respondent renting out a room in the house for extra income to pay for that child’s school. Excluding the clothes and medical aid, the total monthly expenses for the child are N$3920. The respondent explained that the child needs special milk because he is allergic to cow milk, and that contributes to the milk expense.
During cross-examination, none of the expenses were challenged. The appellant only had a general question of how he can be sure that the amount given is actually used for the child’s needs if there is no evidence. The respondent answered she was initially not asked to bring evidence, but at the last hearing, she was told if he did not buy what was agreed on, she should bring her proof, and she then collected that proof and had it with her at court. The appellant did not continue to ask for it.
When the appellant testified, his issue was paying the maintenance money to someone else. He was unsatisfied that the money was being used for the child’s needs, and he felt that the child was suffering. According to him, it was not right for him to be ordered to pay a specific amount because he was a supportive father, and he did not deserve to be brought to court. For September 2023, he spent N$1235 on the child. He said he has no problem putting the child on his medical aid.
The appellant is a teacher, and the respondent is a human resource practitioner. According to payslips on record, the appellant’s net salary is N$16 497,27, and the respondent’s is N$11 067,32. According to the complaint form on record, the respondent receives N$4700 in rental income, bringing her total net income to N$15 767,32.
The court a quo ruled as follows:
‘Okay, it is clear that there is a serious breakdown of communication in this matter between the Complainant and the Defendant where the Court can see that there are other reasons other than this maintenance being brought up which is not necessarily for this Court. This Court is vested at looking at what is in the best interest of the child basically his basic, his or her basic needs and it is clear that the request of the Defendant in this matter is unreasonable to say the least. Moreover, if in his opinion the allegations raised by him in respect of child neglect and so and so there are avenues for that. So, it is therefore ordered that the Defendant pays maintenance through the Clerk of Court on behalf of the beneficiary in the amount of two thousand Namibian Dollars (N$2000-00) effective 20th of November 2023. Defendant to add the beneficiary to his medical aid and buy the seasonal clothing of the beneficiary.’
The determination
The Act applies where a person has a legal duty to maintain another regardless of the nature of the relationship creating that duty and does not derogate from the law relating to the duty of any particular person to maintain another.2
Under section 3(1)(a) of the Act and subject to section 26 and the law relating to the duty of a parent to maintain a child unable to support himself, both parents are liable to maintain such a child regardless of whether the child is born in or out of wedlock. The parental maintenance duty towards a child includes rendering support reasonably required by the child for proper living and upbringing and includes food, accommodation, clothing, medical care and education.3
Section 4 of the Act sets out certain principles to be considered in determining the nature or amount of maintenance payable. Section 5 provides that a maintenance court must not make a maintenance order unless satisfied that the defendant is legally liable to maintain the beneficiary, is able to contribute to the maintenance and fails or neglects to provide reasonable maintenance.
An appeal court may interfere with a court a quo’s factual finding if there was a misdirection on the facts and/or a clearly wrong finding.4
The conditions precedent to granting a maintenance order in section 5 of the Act are all conclusions to be drawn from facts on the evidence adduced. The condition contained in section 5(c) that the person against whom the order is sought fails or neglects to provide reasonable maintenance is a conclusion to be drawn from facts on evidence adduced. For example, a defendant did not pay any maintenance for several months, or a defendant always pays late. Late payments would constitute a neglect to provide maintenance. The ordinary meaning of neglect is failing to care properly. In other words, if a complainant would testify that it is a struggle to get a defendant to provide maintenance, but eventually it is provided, the conclusion may be that such a defendant neglects to provide maintenance consistently, thereby neglecting the duty to provide reasonable maintenance.
The respondent testified that she would provide the appellant with a list of items required. He would then buy items he wanted and not the ones she needed. She would then have to explain that the child gets rashes from a particular brand of nappy, and that is why he must not buy that brand but rather the brand she specified. The following month, the appellant blocked the respondent. The respondent further testified that the appellant’s maintenance provision was conditional on him insisting on sleeping with her or lending him taxi money so he could go to work and get money to provide for the child. None of that testimony was challenged under cross-examination. The appellant’s conduct complained of is deplorable. The court asked the appellant’s counsel if the appellant’s conduct complained of did not amount to a failure or neglect to maintain. Understandably, the appellant’s counsel could not argue that it does not amount to neglecting the duty to provide reasonable maintenance. The appellant’s conduct complained of amounted to neglecting his duty to provide reasonable maintenance. Even though the court a quo did not expressly find that the appellant neglected his duty to provide reasonable maintenance, she must have been satisfied with that condition precedent before granting the maintenance order as submitted by the appellant’s counsel. On the evidence adduced, the court a quo’s implied conclusion on the condition in section 5(c) was not a misdirection on the facts.
The court a quo did not expressly find that the monthly contribution of over N$1000 or goods and food in the sum of N$1000 was inadequate to meet the child’s needs. However, having ordered the appellant to pay N$2000 per month, the court a quo must have concluded, impliedly, that the amount of N$1000 was inadequate. The court a quo did not misdirect itself on the facts in that regard. The facts supported that implied conclusion. According to the respondent’s testimony, the total monthly expenses for the child was N$3920. None of the expenses were disputed. Nor was it disputed that the child needs the items making up that amount. None of those items were extraordinary. Nor were their costs exorbitant. The appellant was only concerned with whether the money would be used for the child and not for other things. N$2000 is about half of N$3920. Clearly, N$1000 per month was inadequate. There was thus no misdirection in reaching that implied conclusion.
When the court asked the appellant’s counsel whether there was cross-examination to adequately investigate the complaint, the appellant’s counsel submitted there was no evidence of the child’s needs, and it was questioned at the informal hearing that preceded the court proceedings. The respondent testified on the expenses, and they were not challenged in cross-examination. What happened at the informal hearing (presumably the mediation session) is not before court. In the absence of the needs and their costs testified on by the respondent being challenged, and the needs and their costs not being extraordinary or exorbitant, there was nothing to investigate in more detail. In other words, the nature of a maintenance enquiry is dictated by the issues arising from the case facts. This is further dealt with below.
The parties’ respective payslips and bank statements as well as the complaint setting out the respondent’s expenses, form part of the appeal record. If the respondent’s rental income is considered, the respondent’s net salary is about N$700 less than the appellant’s, but the respondent’s gross salary is about N$6000 more than the appellant’s. With the total expenses for the minor child amounting to N$3920 and the appellant being ordered to pay N$2000, the respondent’s contribution was logically determined to be the remainder of N$1920, and it was logically found that both parents share the duty to maintain the child.
Both parties have children (one each) other than the child whose maintenance is the subject matter of the appeal. When the appellant spoke about his other child, he did not testify that he could not contribute N$2000 in maintenance to the parties’ child. The appellant’s ability to contribute N$2000 to the parties’ child was not an issue in the court a quo proceedings. As such, the appellant’s duty to maintain his other child was not an issue in the court a quo proceedings.
Section 16(2)(a) of the Act provides that when making a maintenance order, the court a quo must have regard to the evidence adduced at the enquiry, all the circumstances of the case, and in particular to the lifestyle, income and earning capacity of the persons. That section does not mean that the court a quo must work down a list and tick all proverbial boxes in a maintenance enquiry. The nature of a maintenance enquiry is determined by the case circumstances and facts established by the evidence adduced and the issues arising therefrom. To illustrate the point, if the respondent led a lavish lifestyle and demanded that the child be dressed in designer clothes and that only the most expensive products be used for his care, and the appellant had an issue with that because he was expected to contribute to such a lifestyle while he could not afford it, then the parties’ lifestyles would become a relevant issue. The facts of a particular case may show that the parties’ respective earning capacities are not an issue, while the facts of another case may show that it is an issue. For example, as in the matter before court, both parties are employed and earn a monthly salary. One party is not complaining about the other’s earning capacity. In another case, one party may be employed and earn a salary, while the other refuses to work and chooses to stay home and solely rely on maintenance from the other party. In such a case, the parties’ respective earning capacities may become an issue. The facts of a particular case may show that one party earns substantially more than the other. In such a case, the party’s income would become relevant because the legal duty is to maintain commensurate to one’s means.
The parties’ lifestyles, income, expenses and earning capacities would become relevant if the case facts, circumstances and issues demanded it. In the case at hand, it did not. The parties’ lifestyles, income, expenses and earning capacities had no bearing on the maintenance sought. It was thus unnecessary for the court a quo to go into those issues. The court a quo did not err in how the maintenance enquiry was conducted.
The court now deals with the last complaint in the notice of appeal that the court a quo erred in finding or ordering the respondent, instead of the maternal grandmother with whom the child resides, was more suitable to receive the maintenance money. The court a quo did not order the respondent or the maternal grandmother to receive the maintenance money. The appellant was ordered to pay it to the clerk of the court for the child’s benefit. The respondent would collect it for the child’s benefit. The fact that the respondent may give some of the maintenance money to her mother for performing nanny services in looking after the child is no ground to overturn the court a quo’s judgment and order
None of the grounds of appeal can be upheld. The appeal cannot succeed.
There is no reason why costs should not follow the event. The respondent represented herself. As a result, the costs awarded to her are limited by the disbursements she incurred in opposing the appeal.
Condonation
There is one last issue to be determined and that is whether the late delivery of the appellant’s latest heads of argument should be condoned. The condonation application was opposed on the same basis as the appeal’s opposition. The appellant’s latest heads of argument were six days late. The explanation is that the heads of argument was already filed months before the appeal was set down for hearing when a previous condonation application was heard. The appellant’s counsel was under the impression that further heads of argument need not be filed. To obtain condonation, the appellant had to show good cause. That entails a sufficient and reasonable explanation for the default and that the appeal has prospects of success. The latest heads of argument filed for the appeal hearing slightly differs from the first set. The explanation provided is thus not sufficient and reasonable for why the latest heads of argument was filed late. The appellant furthermore failed to address the appeal’s prospects of success in the condonation application. The condonation application, too, cannot succeed.
Conclusion
In conclusion, it is ordered that:
The appellant’s condonation application for the late delivery of his latest heads of argument is dismissed.
The appeal is dismissed.
The appellant must pay the respondent’s costs, limited to disbursements.
The matter is finalised and removed from the roll.
__________________ |
B DE JAGER |
Judge |
_____________________ |
E M SCHIMMING-CHASE |
Judge |
APPEARANCES | |
APPELLANT: | L Goraseb Of Ileni Velikoshi Incorporated Windhoek |
RESPONDENT: | L Haufiku The respondent in person |
1 Why references are made to implied conclusions is implicit from the judgment.
2 Section 2 of the Maintenance Act 9 of 2003.
3 Section 3(3) of the Maintenance Act 9 of 2003.
4 Bernett v ABSA Bank Ltd 2011 (3) SA 92 (CC) para 106.