Simone v Kakuwa (HC-NLD-CIV-ACT-MAT-2022/00368) [2025] NAHCNLD 63 (21 May 2025)

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

 

JUDGMENT

 

Case no: HC-NLD-CIV-ACT-MAT-2022/00368

 

In the matter between:

 

IGNATIUS GIDEON SIMONE PLAINTIFF

 

and

 

BEAUTY MAZINZA KAKUWA DEFENDANT

 

Neutral citation: Simone v Kakuwa (HC-NLD-CIV-ACT-MAT-2022/00368) [2025] NAHCNLD 63 (21 May 2025)

 

Coram: MUNSU J

Heard: 2, 3 April 2024 and 6 March 2025

Delivered: 21 May 2025

 

Flynote: Husband and wife – Divorce – Defendant seeking spousal maintenance.

 

Summary: The plaintiff instituted action for divorce against the defendant premised on desertion. The defendant defended the action and filed a counterclaim for divorce also based on malicious desertion.

 

Held, that the plaintiff was the primary cause for the breakdown of the marriage, when he developed a trend of abandoning the marital home, and when he expelled the defendant from the matrimonial home.

 

Held that the defendant was in need of maintenance to restore her economic independence that she possessed before the marriage.

 

______________________________________________________________________

ORDER

______________________________________________________________________

 

Judgment is granted to the Defendant for an order for restitution of conjugal rights, and the Plaintiff is ordered to return to or receive the Defendant on or before 02 July 2025, failing which to show cause, if any, to this court on 30 July 2025 at 10h00 why:

 

1. 1. The bonds of marriage subsisting between the parties should not be dissolved.

   2. The Plaintiff should not be ordered to pay the Defendant rehabilitative maintenance in the amount of N$ 1,000 per month for a period of twelve months from the date of the final order of divorce.

   3. The order in respect of rehabilitative maintenance stated in para 1.2 above should not replace the existing order of spousal maintenance of N$ 500.

   4. Each party should not pay its own costs.

 

___________________________________________________________________­­­­­­­___

JUDGMENT

______________________________________________________________________

 

MUNSU J

 

Introduction

 

[1] The plaintiff instituted action for divorce against the defendant. The parties got married to each other out of community of property on 04 August 2017 at the Oshakati Magistrates’ Court. There were no children born between the parties.

 

The pleadings

 

[2] The plaintiff alleged in his particulars of claim that the defendant wrongfully and unlawfully deserted him. Accordingly, he 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] In her plea, she denied having deserted the plaintiff. She claimed that it was the plaintiff who constructively deserted her by chasing her out of the common home and told her never to return. She further pleaded that the plaintiff would leave her in the common home every month-end without informing her of his whereabouts and would only return after two days.

 

[5] In her counterclaim, she alleged that the plaintiff wrongfully and maliciously deserted her, which is denied by the plaintiff. She also claims spousal maintenance in the amount of N$ 2 000 per month for a period of 12 months from the date of the divorce order.

 

The issues for determination

 

[6] In terms of the pre-trial order, the court is asked to decide who was responsible for the dissolution of the marriage, and whether the defendant is entitled to spousal maintenance.

 

The evidence

 

Plaintiff’s case

 

[7] The plaintiff testified that he is self-employed and owns a small business trading as Makalelo Pest Control Investment. He stated that the business has twelve employees and provides cleaning and fumigation services. The plaintiff further stated that the monthly expenses for the business total N$20,860, which includes costs for cleaning supplies and safety gear, salaries for employees, transport, and airtime.

 

[8] The plaintiff recounted that he spends an additional N$5,900 a month on food, clothing, cosmetics, the caretaker of the homestead at the village, salaries for the housemaid and cattle herders. He also has to pay N$ 3,592 for common charges such as gas stove, electricity, water bill, study policy, funeral plan cover, housing insurance, and transport for two children. He added that, depending on the availability of funds, he pays himself a monthly income of N$ 5,000.

 

[9] The plaintiff continued to say that the parties have children from their past relationships, with the plaintiff having three and the defendant having two. The plaintiff claims that the defendant was unhappy that he married her out of community property. He went on to say that her displeasure did not stop as constantly elicited quarrels about their marital regime. The plaintiff recalled that one of the cause of their dispute during the marriage was her reluctance to look for employment. It was his testimony that during 2019 her attitude towards him totally changed. He asserted that the defendant had lost interest in keeping the marriage going, and that she stopped showing him love, and denied him conjugal rights.

 

[10] Additionally, the plaintiff recounted that the defendant stopped performing most of the household chores that a loving wife would perform, such as preparing meals regularly. She would verbally abuse him for not arriving home immediately after 17h00 and began accusing him of infidelity because he would arrive home between 18h00 and 20h00. This is in spite of the fact that he would sometimes tell her that he had to wait until the clients' work day was over and the staff had left the building before his staff could clean. He went on to state that due to the small size of his company, he would handle the majority of the tasks to guarantee the smooth operation of the business.

 

[11] Furthermore, the plaintiff testified that during 2020, the defendant decided to leave the common home. He says that he spoke to her about reconciling but she was not interested. According to the plaintiff, he eventually also lost interest because of her conduct as he realised that the marriage had irretrievably broken down.

 

[12] The witness went on to say that the defendant is aware of his financial means, and even when she applied for maintenance in 2021, the court, after an inquiry only ordered him to pay an amount of N$ 500 as he could not afford more. According to him, the defendant’s claim for spousal maintenance is not genuine but one out of vengeance as she refused to finalise the divorce pending her claim for spousal maintenance. According to the plaintiff, his financial situation has not improved since the spousal maintenance order was issued, and the defendant did not even seek to have it increased.

 

[13] In cross-examination, the plaintiff denied having deserted the defendant. He also claimed that the defendant is able to take care of her needs without his assistance.

 

The defendant’s case

 

[14] The defendant on the other hand testified that during the year 2020, the plaintiff developed a trend of leaving the matrimonial home on Fridays and returning on Sundays, claiming that he was working on the land he purchased in Okahao. She stated that the plaintiff rarely communicated the specifics of his whereabouts during these times, leaving her with uncertainty and emotional distress. She further recounted that throughout the marriage, the plaintiff displayed a consistent failure to show love and affection towards her, causing immense emotional strain and unhappiness.

 

[15] It was her testimony that during the same year (2020), the plaintiff began asking her for their marriage certificate. When she asked what he wanted to do with it, he stated that he needed to obtain a loan. She related that although she refused his request at first, she later decided to hand it over to him. She went on to say that later that year during December, the plaintiff chased her out of the common home and instructed her not to return. She added that she travelled to Katima Mulilo as she had nowhere else to stay in Omatando, Ongwediva where they were residing at the time.

 

[16] Furthermore, the defendant gave testimony that during the subsistence of the marriage, the plaintiff insisted that she remain in the home to care for his three minor children from a previous relationship. She stated that as a loving wife, she abided by his demand and stayed home as a housewife taking care of the home and the children. The defendant explained that the effect of her staying at home as a housewife was that she became financially dependent on the plaintiff for her financial needs. She recounted that she remains unemployed and possess no formal educational background. She continued to say that despite diligent efforts to secure employment, opportunities have been elusive, leaving her in a challenging financial situation.

 

[17] Additionally, it was the defendant’s testimony that despite her financial dependency on the plaintiff, he stopped maintaining her when he chased her out of the common home and this caused her a lot of suffering. As a result, so the plaintiff stated, she obtained a maintenance order against him during the year 2021 in terms of which he was ordered to pay an amount of N$ 500 per month as spousal maintenance. However, the plaintiff has not been consistent in paying the maintenance as ordered by the court, which leaves her struggling to meet her basic needs and living expenses.

 

[18] Furthermore, the defendant testified that the plaintiff is in a position to maintain her as he owns a company. She asked the court to order the plaintiff to pay her spousal maintenance in the amount of N$ 2,000 per month for a period of 12 months from the date of the final order of divorce. The defendant stated that she would use the aforesaid amount for her basic needs and start a small business to enable her to be financially dependent. According to the defendant, she intends to start a small business of ordering fish from local fisherman and reselling at the local market. It was her further testimony that since the plaintiff chased her out of the common home, she has no place of her own, which necessitates the need to rent. She added that due to the fact that the plaintiff has not been consistent with his payments in terms of the maintenance order, she is unable to rent out a place, and survives on the mercy of relatives who accommodate her.

 

Submissions by the parties

 

[19] The parties stood by their written heads of argument. It was submitted on behalf of the plaintiff that although the defendant lacked academic qualifications, she demonstrated that she possesses some useful skills to maintain herself. It was argued that the defendant never explained why she was no longer engaged in activities of plastering mud houses in order to generate income.

 

[20] It was further contended that there is no necessity for the maintenance sought. Should that have been the case, so it was submitted, the defendant would have approached the maintenance court to seek for an increment of the current maintenance amount. Additionally, it was reiterated that the plaintiff’s income is unstable as he is dependent on a relatively small business through which he maintains his household. Counsel argued that the plaintiff has occasionally fallen behind on his maintenance payments because he hardly breaks even.

 

[21] Counsel went on to submit that the defendant was not candid with the court as she never disclosed whether the father of her two children was supporting them.

 

[22] On the other hand, counsel for the defendant submitted that the plaintiff’s actions serve as the primary catalyst for the breakdown of the marriage. It was contended that the first significant indication of trouble emerged between August and October 2020, when the plaintiff established a troubling tendency of abandonment, which created an atmosphere of uncertainty and emotional distress for the defendant. It was further submitted that the plaintiff financially manipulated and controlled the defendant by insisting that she remain in the home to care for his three children. This made her financially vulnerable and solely dependent on him.

 

[23] Furthermore, counsel contended that the exploitative nature of the arrangement became even more apparent when, in December 2020, the plaintiff unilaterally expelled the defendant from the matrimonial home with a stern instruction not to return, effectively leaving her without both shelter and financial support. Over and above, it was pointed out that the contribution of a housewife to the joint household, though not monetary, is as valuable as the financial contribution of the working spouse. Counsel implored the court to grant her spousal maintenance in the amount of N$ 2,000.

 

Discussion

 

[24] I find that the plaintiff was the primary cause for the breakdown of the marriage. This conclusion is supported by the defendant's evidence, which the court finds more credible than the plaintiff's. First, the plaintiff developed a tendency of abandoning the defendant during weekends. He would routinely desert the matrimonial home, offering only vague explanations about working on land in Okahao. I accept that the unexplained absences, characterised by minimal communication about his whereabouts, created an atmosphere of uncertainty and emotional distress for the defendant, effectively undermining the foundation of trust essential in marriage.

 

[25] Second, I accept the defendant’s evidence that the plaintiff expelled her from the matrimonial home with an instruction not to return. The evidence was that the plaintiff bought bus tickets for the defendant and her children. It was common cause that the defendant was financially dependent on the plaintiff. If one was to go by the plaintiff’s testimony, there would not have been anyone to assist the defendant with transport money from Ongwediva to Katima Mulilo as her relatives reside in her native country, Zambia.

 

[26] I find that the defendant’s version could not have been fabricated as it was backed up by objective facts. On the other hand, the plaintiff merely provided bare denials to the issues, and failed to put in context his purported remarks about visiting the land in Okahao area. Furthermore, it was far-fetched for the plaintiff to testify that he returned home only to discover that the defendant had left the marital home. This is so because he never attempted to find out where she had gone, assuming that was the case. Thus, his actions are consistent with the defendant's testimony that he was aware of the defendant's departure from the marital residence because he evicted her and covered the cost of her transport. Accordingly, the court would grant an order for restitution of conjugal rights as per the counterclaim.

 

[27] Regarding the issue of maintenance, the parties are in agreement on the applicable law. The court is empowered to grant a maintenance order against the guilty spouse for the maintenance of the innocent spouse. The claiming spouse must prove on a balance of probabilities that he or she is in need of maintenance.¹ The aim of granting spousal maintenance is not to enrich the claiming spouse or to pay for his or her changed trendy lifestyle brought on by the dissolution of the marriage.² Additionally, the claiming spouse is not entitled to be placed in the same positon with regard to maintaining herself or himself as if he or she was still married to the other party, even though he or she need not show actual necessity.³

 

[28] It was common ground that before their union, the defendant successfully operated a fish-selling business. She also engaged in various income-generating activities, including laundry and plastering mud houses, thereby demonstrating her consistent commitment to self-reliance. The plaintiff accused the defendant of being unwilling to work during their marriage, while on the other hand the defendant explained that the plaintiff had informed her to stay home and look after the children as they were still young. Additionally, the plaintiff’s hours of work were another concern.

 

[29] It was common cause that the plaintiff had given the defendant N$ 1,000 which she used to buy materials for sewing clothes. The defendant explained that the plaintiff appropriated the profit made and she was unable to continue with the business.

 

[30] The defendant is currently unemployed. She has no formal education, and despite diligent efforts, she has been unable to secure employment. She is therefore in need of maintenance. The maintenance will be necessary to restore her economic independence that she possessed before the marriage. The amount sought is reasonable, however, the plaintiff does not have an abundance of resources as he depends on his small business. However, the amount of N$ 500 he offered is too little. The defendant did not deal with the plaintiff’s ability to pay the amount claimed, nor did she sufficiently dispute his expenses. As such, the court will merely rely on the plaintiff’s evidence.

 

[31] The plaintiff presented his three months bank statement which shows that he earns an amount of N$ 38, 736 monthly. His expenses amount to N$ 30, 353, excluding the amount occasionally spent on clothing. Similarly, the court is mindful that the price for pesticide fluctuates.

 

[32] During the trial, it was implied that the plaintiff uses the N$ 5,000 he pays himself after all expenditures to maintain his household. This is not supported by his own evidence, as his total business and household expenses, as recorded by him, are N$ 30, 353. The bank statement he provided demonstrates that he receives the same amount of N$ 38, 736. He is therefore able to pay maintenance to the defendant.

 

Costs

 

[33] The defendant was substantially successful. She is represented on instructions of legal aid. In the circumstances, I am of the opinion that I should use my discretion not to make any order as to costs.

 

 

The order:

 

[34] For these reasons, I make the following order:

 

 

Judgment is granted to the Defendant for an order for restitution of conjugal rights, and the Plaintiff is ordered to return to or receive the Defendant on or before 02 July 2025, failing which to show cause, if any, to this court on 30 July 2025 at 10h00 why:

 

1.1 The bonds of marriage subsisting between the parties should not be dissolved.

1.2. The Plaintiff should not be ordered to pay the Defendant rehabilitative maintenance in the amount of N$ 1,000 per month for a period of twelve months from the date of the final order of divorce.

1.3. The order in respect of rehabilitative maintenance stated in para 1.2 above should not replace the existing order of spousal maintenance of N$ 500.

1.4. Each party should not pay its own costs.

 

 

 

 

________________

D C MUNSU

JUDGE

APPEARANCES

 

PLAINTIFF: MM Nyambe

Of Mukaya Nyambe Inc.

Ongwediva

 

 

DEFENDANT: P Ndeutapo

Of Ntelamo-Matswetu & Associates.

Windhoek.