REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: HC-NLD-CIV-ACT-DEL-2021/00273
In the matter between:
RACHEL MBOSHONO NGHIWETE PLAINTIFF
and
JOSEPH AMOLA DEFENDANT
Neutral citation: Nghiwete v Amola (HC-NLD-CIV-ACT-DEL-2021/00273) [2025] NAHCNLD 15 (30 January 2025)
Coram: MUNSU J
Heard: 06 November 2024
Delivered: 30 January 2025
Flynote: Husband and wife – Divorce – Whether marriage, in or out of community of property.
Summary: The wife instituted action for divorce against the defendant on the ground of malicious and constructive desertion. The plaintiff claimed that the parties are married in community of property, having signed a written declaration in terms of s 17(6) of the Native Administration Proclamation 15 of 1928.The husband defended the action and filed a counterclaim for divorce also based on malicious and constructive desertion. He maintained that there was no verbal or written declaration made before a marriage officer one month prior to the solemnisation of the marriage.
Held, that the declaration by the parties was not made one month prior to the solemnisation of the marriage.
Held, that the requirements for a marriage in community of property were not met.
Held, that the defendant was the cause of the breakdown of the marriage when he brought a woman into the marital home, and continued to live with her to date with a child being born from the adulterous relationship.
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ORDER
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The marriage concluded between the Plaintiff and the Defendant is one out of community of property.
Judgment is granted to the plaintiff for an order for restitution of conjugal rights, and the Defendant is ordered to return to or receive the plaintiff on or before 13 March 2025, failing which to show cause, if any, to this court on 10 April 2025 at 10h00 why:
2.1. The bonds of marriage subsisting between the parties should not be dissolved.
There is no order as to costs.
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JUDGMENT
______________________________________________________________________
MUNSU J
Introduction
[1] The plaintiff instituted action for divorce against the defendant. The parties got married to each other on 31 May 2014 at Ongwediva. The parties disagree on the marital regime, with the plaintiff contending that their marriage is one that produces the consequences of a marriage in community of property, while the defendant maintained that they were married out of community of property. There were no children born of the marriage.
The pleadings
[2] The plaintiff claimed in her particulars of claim that the defendant had maliciously and constructively deserted her. Accordingly, she seeks an order for restitution of conjugal rights, failing compliance therewith, a final order of divorce.
[3] The defendant entered appearance to defend the action and filed a plea and a counterclaim.
[4] He pleaded that there was no verbal or written declaration made before a marriage officer one month prior to the solemnisation of the marriage. The defendant further pleaded that the marriage was not duly solemnised by the marriage officer prior to the issuing of the marriage certificate. He added that the parties had no witnesses, nor did they sign any declaration. Thus, the defendant contended that the marriage is void ab initio and has no consequences of a valid marriage.
[5] Furthermore, the defendant pleaded in the alternative that he only got involved in an extramarital relationship after the plaintiff deserted him. He claimed that it is the plaintiff who had an extramarital affair with an employee of Natis, Ongwediva, whose particulars are unknown to him, and that the plaintiff left the common home to go and reside at Okatana with her boyfriend.
[6] The defendant further alleged that due to the plaintiff’s unlawful and dishonest conduct, he was left lonely and depressed and ended up engaging in an adulterous relationship with another woman from whom one minor child was born. He therefore seeks condonation from this court for such adulterous relationship. The defendant claims that it is the plaintiff who maliciously and constructively deserted him, and accordingly seeks an order for restitution of conjugal rights, failing compliance therewith, a final order of divorce. He also prays for an order for forfeiture of the plaintiff’s patrimonial benefit in respect of immovable properties at Adolf and Omatando.
[7] In her replication, the plaintiff pleaded that both parties had the requisite consensus required at the time of concluding the marriage. She further pleaded that the parties approached a licenced Anglican Pastor who explained to them the different types of marriages. The plaintiff claims that the parties opted for a marriage in community of property and proceeded to sign the written declaration in terms of s 17(6) of the Native Administration Proclamation 15 of 1928. Additionally, the plaintiff pleaded that two witnesses were present throughout the process. Thus, the plaintiff claimed that the parties’ marriage is valid and has consequences of a valid marriage.
[8] Furthermore, the plaintiff pleaded that when she returned to the common home after a weekend, she discovered that the defendant had brought his mistress into the marital home, where she still resides today, and that the defendant was already seeing the mistress and had only moved her into the matrimonial home to frustrate the plaintiff and constructively move her out of the marital home.
[9] The plaintiff denied ever having engaged in any adulterous relationship, and pleaded that upon realising that the mistress had moved in, she went to reside with her sister at Adolf location. She further denied having disposed any of the joint assets as she did not have any access to the common home.
[10] In respect of the counterclaim, the plaintiff pleaded that the property at erf 2598, Ondangwa was sold with the full knowledge and consent of the defendant and the proceeds were utilised to construct the residence at Omatando, and part thereof utilised to purchase the VW Polo motor vehicle with registration number N 24857 SH which is currently at the marital home where the defendant resides.
[11] Furthermore, the plaintiff pleaded that the parties never had a Corolla motor vehicle except the one in the possession of the defendant with registration number N 2343 SH.
[12] As for the pension payout, the plaintiff claims that she only received a three month advance payment and shares worth N$ 2 000, which she still owns.
The evidence
[13] Three witnesses testified in favour of the plaintiff’s case. The plaintiff testified that the parties got married on 31 May 2014 at Ongwediva by virtue of a verbal declaration made within one month prior to the solemnisation of the marriage.
[14] The plaintiff further testified that she filed for divorce for the reasons pleaded in her particulars of claim. She recounted that the defendant’s adulterous relationship was with a certain Rachel Shaetonghoko, with whom he still resides today, and from whom a child was born. According to the plaintiff, this is the mistress she came to find in the matrimonial home when she returned from one weekend.
[15] It was her testimony that mediation was unsuccessful because the parties could not agree on the division of the joint estate. She stated that during the subsistence of the marriage, the parties acquired several assets, including land in villages of Omatando, Okapya Keedimbo, Ondifoonya and Okaandje. They also acquired three motor vehicles, being, 2 x Toyota Corollas, and a VW Polo sedan, as well as several movable properties.
[16] Ester Amutenya is a friend to the plaintiff. She was the maid of honour, and testified that she witnessed the plaintiff’s marriage to the defendant. According to her, the parties indicated to the marriage officer that they wanted to get married in community of property. Thereafter, the marriage officer solemnised the marriage and they all signed the necessary documents.
[17] Mr Johannes Julius Mulongeni is serving as the headman for the village of Ounonge. He testified that he knows the parties in this matter as they are married to each other.
[18] The witness recounted that during May 2018, he was called by the plaintiff to attend a meeting between her and the defendant. At the said meeting, the plaintiff informed him that she had called him in order to bear witness because she had asked to go for the weekend to her sister in order to gather her thoughts. According to the witness, he asked the defendant what he thought of the request and he said that it was a good idea.
[19] The witness further testified that the plaintiff left and on her return, she called him to her marital home. There she informed him that the defendant had brought a woman in the residence while she was away for the weekend. The witness claims that he saw the woman the plaintiff was referring to, after which he left and the plaintiff similarly left.
[20] On the other hand, the defendant and his mother testified in favour of the defendant’s case. The defendant testified that the parties had not signed a declaration one month prior to the solemnisation of the marriage. He recalled that on 31 May 2014, the parties went to collect their marriage certificate from an Anglican priest’s house in Ongwediva so that they would take it for blessings on 01 June 2014 to ELCIN Church in Oshakati West. According to him, there was no marriage solemnisation prior to the issuing of the marriage certificate.
[21] The defendant testified that they took the marriage certificate to ELCIN church where the marriage was blessed. He went on to testify about the properties disposed of by the plaintiff.
[22] Furthermore, the defendant testified that the parties’ relationship deteriorated because the plaintiff is very possessive, and argues almost about everything, including hearing the defendant chatting on the phone with other women, his tardiness in returning home, and that he should not have friends.
[23] The defendant went on to testify that after receiving her salary on 25 May 2018, the plaintiff disappeared and never returned for eight consecutive days. As a result, the defendant went to report her disappearance, and he was informed at her work place that she had taken leave for six days and had given the reason that she accompanied the defendant to the mahangu field at Okapya-Keedimbo village, when in fact it was not true. He recounted that upon her return, he confronted her about the leave, to which she replied that he could not prevent her from visiting her family.
[24] It was his further testimony that one day she informed him that she was tired of the marriage and that she was going to leave the marital home to go and rest, but she never came back till this day.
[25] The mother to the defendant, Ms Albertina Hipandulwa testified about the parties’ nighttime visit to the marriage officer’s home and how the plaintiff was crying, while pleading with the marriage officer to alter the parties' marital regime from one of out of community of property to one in community of property.
[26] Two subpoenaed witnesses testified in the matter. Rev. Taara Shalyefu is a priest of Anglican Church, Ongwediva. He testified that he solemnised the marriage between the parties on 31 May 2014. He confirmed that Ester Amutenya was the witness for the plaintiff, while Thomas Nepela was for the defendant.
[27] The witness recounted that as part of his training, he does not solemnise marriages during the night. He further stated that where the parties do not agree or one is not happy, he would refer them back and not proceed to solemnise the marriage. The witness maintained that the defendant and his mother were telling lies as the defendant was not forced to get married.
[28] Samuel Nambabi is a retired pastor of ELCIN Church. He testified that he is the one that blessed the parties’ marriage. According to him, he would bless a marriage ‘which is there’, as one can’t bless a marriage ‘which is not there’. This he would confirm by having regard to the marriage certificate.
[29] It was his further testimony that at the time, he did not have the powers to solemnise marriages and would only conduct the blessings after solemnisation.
Submissions by the parties
[30] It was submitted on behalf of the plaintiff that the parties made a declaration to marry each other in community of property, and that this happened at Gabriel Taapopi Secondary School in Ongwediva where the church used to convene. Counsel submitted that the allegation about the issuance of two marriage certificates during the night at the pastor’s house was refuted.
[31] Furthermore, it was contended that the defendant was the cause of the marital breakdown because he chased the plaintiff out of the marital home and has been cohabitating with a woman.
[32] On the other hand, counsel for the defendant submitted that the parties did not make any declaration one month prior to the solemnisation of the marriage. It was further contended that there were no witnesses present on 31 May 2014 prior to the marriage officer issuing the parties with a marriage certificate. Accordingly, the defendant moved for the nullification of the marriage.
[33] Furthermore, counsel submitted in the alternative that the plaintiff was the cause of the breakdown of the marriage.
Discussion
[34] The defendant's testimony lacked credibility. In an effort to undermine the legitimacy of the union, he stated that he had no idea how he became married. He claimed that he did not intend to get married. He further said that he did not know what his wife did to make him decide to get married. He added that he did not know how he got the spirit to get married.
[35] During cross-examination, he acknowledged that pastor Nambabi had blessed their marriage, but when asked why he had proceeded with the marriage blessing, he stated that it was just a spirit. When asked to explain the spirit, he said he couldn't.
[36] It was evident that the parties had been before a qualified marriage officer who claimed to have solemnised the marriage, and the next day, the parties went to church for the blessing of the union.
[37] The defendant unashamedly accused the marriage officer of changing the parties' alleged preferred marital regime from out of community of property to in community of property, supposedly because the plaintiff was crying, that even the neighbours heard her. He claimed that the plaintiff only stopped crying when the marriage officer wrote a second marriage certificate with the words ‘in community of property’. However, the parties’ marriage certificate do not bear such words. Rather, it reads ‘Without Antenuptial Contract.’ When questioned whether he understood the import of the said words, he stated that he did not know. It was evident that the defendant was flagrantly avoiding obvious issues.
[38] The marriage officer’s testimony was that he solemnised the parties’ marriage on 31 May 2014. He informed the court of the witnesses who were present. He stated that he has been a marriage officer for more than a decade, and that he was trained not to solemnise marriages at night. He added that, where the parties disagree or one of them was unhappy, he would not proceed to solemnise the marriage. He stressed that the defendant and his witness were telling lies as the defendant was not forced to get married. I accept his evidence. The defendant’s claims were so far-fetched that no reasonable court could accept them.
[39] There was no iota of evidence that the defendant informed the marriage officer that the parties had a disagreement, or that he was unwilling to get married. It was evident that a marriage certificate was issued, which the parties took along for blessings. The defendant confirmed under cross-examination that after the blessings in church, he took the plaintiff to his home as his wife. In Moongo v Moongo1 the court held that:
‘[34] In line with s 42(2) of the Births, Marriages and Deaths Registration Act and what was held in Fitzgerald v Green, the ordinary mode of proving a marriage is no doubt by production of the register or a certified extract from it. In this matter an extract from the marriage register namely a marriage certificate was produced. It thus follows that in this matter the evidence of cohabitation and repute is allied to the evidence of a ceremony of marriage having been initially celebrated between the parties, creating a very strong presumption that the parties were validly married. That presumption will be displaced only by clear contrary evidence.’
[40] Accordingly, the court is satisfied that the parties were lawfully married.
[41] The parties were married in Oshana Region, and by virtue of s 17(6) of the Native Administration Proclamation 15 of 1928, all marriages between ‘natives’ north of the so-called ‘Police Zone’ are automatically out of community of property. The aforesaid section provides:
'A marriage between Natives, contracted after the commencement of this proclamation, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate, native commissioner or marriage officer (who is hereby authorised to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage.'
[42] The substance of s 17(6) is that: 'black' persons who marry by civil marriage north of the 'Red Line' (which includes the Oshana Region, the Region in which the parties' marriage was concluded) will be married out of community of property. The intending spouses may, however, at any time within one month prior to the solemnisation of the marriage, declare jointly to a marriage officer that they wish to be married in community of property. Thus, unless 'black' persons who marry north of the 'Red Line' make such declaration, they will be married out of community of property, but not by antenuptial contract.2
[43] In casu, the declaration by the parties was not made one month prior to the solemnisation of the marriage. This was confirmed by the marriage officer whose testimony was that the declaration was made on the day of the marriage. In Hamupolo v Simon NO3 the court held that:
‘The Native Administration Proclamation requires that a party should make declaration more than a month before the solemnization of the marriage. Where as in this case, the declaration required in s 17(6) of the Proclamation is made on the day of the solemnization of the marriage, the marriage cannot be held to be in community of property for lack of compliance with the Proclamation.’
And that:
‘The reason behind the requirement that the declaration be made a month before the solemnization of the marriage was to afford the so-called ‘natives’ to whom the provisions applied time to reflect on the choice to marry in community of property, which was generally not in line with their customs and usages.’
[44] Although the plaintiff alleged that the parties made a verbal declaration one month prior to the celebration of the marriage, it was not claimed that same was made before a marriage officer. Similarly, no marriage officer was called to attest such declaration. Additionally, it was not stated where and when such declaration was made.
[45] In Mofuka v Mofuka4 the Supreme Court stated the following:
‘Secondly, the parties must prove that they have entered into an agreement concerning their matrimonial property system either expressly or by necessary implication. To say that they had come to some or other understanding or that that was their impression or intention would not be enough. The Court must be satisfied that on the evidence, it is probable that the parties concluded an agreement prior to their marriage.’
Thirdly, and once the Court is satisfied that the parties had entered into an agreement concerning the matrimonial property system, and that they had agreed so prior to their marriage, and even though no other terms were agreed upon, the Court would presume that the parties intended their marriage to be governed by the ordinary minimum terms applicable to the specific property regime. See Ex Parte Swart and Swart, 1953 (3) SA 22 (TPD) at 24 F – G. In the present instance nothing more would therefore be necessary than for the respondent to prove, on a balance of probabilities, that prior to their marriage, the parties had agreed to be married in community of property. The effect of such an agreement would be that, as between the parties, the marriage would be regarded as in community of property with the sharing of profit and loss.
[46] In the present matter, no such agreement was alleged. Accordingly, the requirements for a marriage in community of property were not met. Thus, the parties’ marriage is one out of community of property.
[47] I now turn to the cause of the breakdown of the marriage. I already found the defendant not to have been a credible witness. The same cannot be said about the plaintiff. She was forthright and unshaken on the material aspects of the matter. Her evidence stood out.
[48] Despite their marital challenges, things took a turn for the worst when the plaintiff returned home from a weekend to discover the defendant had brought a woman into the marital home. The headman attested to this fact. It is common cause that the defendant continued to live with the said woman to date, and that a child was born from the relationship. Accordingly, the court finds that the defendant was the cause of the breakdown of the marriage as he constructively deserted the plaintiff. The court would grant an order for conjugal rights in favour of the plaintiff.
Costs
[49] Each party succeeded in part, in respect of the relief they sought. In the circumstances, I am of the opinion that I should use my discretion not to make any order as to costs.
The order:
[50] For these reasons, I make the following order:
The marriage concluded between the Plaintiff and the Defendant is one out of community of property.
Judgment is granted to the plaintiff for an order for restitution of conjugal rights, and the Defendant is ordered to return to or receive the plaintiff on or before 13 March 2025, failing which to show cause, if any, to this court on 10 April 2025 at 10h00 why:
2.1. The bonds of marriage subsisting between the parties should not be dissolved.
3. There is no order as to costs.
________________
D C MUNSU
JUDGE
APPEARANCES
PLAINTIFF: MM Nyambe
Of Mukaya Nyambe Inc.
Ongwediva
DEFENDANT: A Shapumba
Of Shapumba & Associates Inc.
Ondangwa.
1 Moongo v Moongo (HC-MD-CIV-ACT-OTH-2019/02608) [2024] NAHCMD 198 (30 April 2024).
2 See Nakashololo v Nakashololo 2007 (1) NR 27 (HC) at para [4]; VNK v SNK (HC-MD-CIV-ACT-MAT-2017/02775) [2019] NAHCMD 214 (28 June 2019); Nghifenwa v Ndjara (HC-NLD-CIV-ACT-MAT-2018/00133) [2020] 137 (18 September 2020); Mofuka v Mofuka (1) (I 379/2000) [2001] NAHC 6 (14 December 2001); Mofuka v Mofuka (2) (SA 2/2002) [2003] NASC 18 (20 November 2003).
3 Hamupolo v Simon NO (HC-MD-CIV-MOT-GEN-2020/00078) [2022] NAHCMD 37 (08 February 2022).
4 See footnote 1.