Court name
Supreme Court
Case name
S v S
Media neutral citation
[2012] NASC 24
Judge
Maritz JA













REPORTABLE



CASE NO.: SA 29/2011





IN
THE SUPREME COURT OF NAMIBIA








In
the matter between:
















S



APPELLANT









and
















S



RESPONDENT










Coram: Maritz JA, Mainga JA
and O’Regan AJA



Heard on: 6 July 2012



Delivered on: 15 November 2012










APPEAL JUDGMENT











MAINGA JA (MARITZ JA AND O’REGAN
AJA CONCURRING)







[1] This is an appeal against a
judgment of the High Court ordering amongst other things
,
a divorce and the forfeiture of the benefits of marriage by the
appellant.
1







Facts



  1. The
    parties were married to each other in community of property on 11
    December 1994 in Windhoek.On 13 August 2010 the respondent, Mr
    EliasShikongo instituted action in the High Court against his wife,
    the appellant, Mrs Margaret Shikongo, claiming among other things,a
    decree of divorce and the forfeiture by the appellant of the
    benefits of the marriage in community of property, on the ground of
    adultery, alternatively constructive desertion. The appellant
    counterclaimed for, among other things, a decree of divorce based on
    the respondent’s adultery and constructive desertion and a
    forfeiture by the respondent of the benefits of the marriage in
    community of property. After a trial that lasted four days (18 –
    21 January 2011), Unengu AJ, on 1 April 2011, dismissed the
    appellant’s counter-claim and granted an order of divorce on
    the ground of adultery in favour of the respondent and a forfeiture
    order.







  1. The
    order in its entirety reads as follows:








1. The
plaintiff is granted a final order of divorce;



2. The
defendant forfeits the benefits of the marriage in community of
property subject to the tender made to her by plaintiff in the terms
referred to hereunder if accepted:



  1. That
    the immovable property situated at Mostert Street 73, Pioneerspark,
    Windhoek, Republic of Namibia be transferred into the name of the
    defendant at her own cost and that the plaintiff signs all the
    necessary documents in order to effect the said transfer;


  2. That
    the Erf situated in Cape Town be transferred into the name of the
    defendant and the plaintiff signs all documents necessary to effect
    the transfer at the defendant’s own costs;


  3. That
    the Lexus motor vehicle with registration number N98448 W be
    transferred and registered into the name of the defendant at own
    costs;


  4. That
    the plaintiff continues to pay the balance still outstanding and due
    to the bank on the property situated at Mostert Street 73,
    Pioneerspark, Windhoek;


  5. That
    the defendant retains all the household effects and movables
    currently in the property to be transferred to the defendant which
    property is situated at Mostert Street 73, Pioneerspark, Windhoek;
    and


  6. That
    the plaintiff shall retain the defendant on his medical aid for a
    period of six (6) months after the final order of divorce or until
    she acquires her own medical aid, whichever occurs first.




3. The
defendant shall not share in any other assets of the common estate
save for the tender above;



4. The
settlement agreement between the parties regarding custody and
control of the minor children is hereby made an order of court;



5. The
defendant is ordered to pay the costs of suit on the scale as between
party and party, which costs shall include the costs consequent upon
the employment of one instructing and one instructed counsel and such
costs shall not form part of the common estate;



6. The
defendant’s counter-claim is dismissed with costs, such costs
to include costs occasioned by the employment of one instructing and
one instructed counsel.’







  1. The
    appellant appealed against the judgment and order made by the High
    Court. The appellant noted an appeal against the judgment timeously
    on 19 April 2011, but did not lodge security for costs or the record
    of appeal timeously. The record should have been filed on 1 July
    2011 but was only lodged on 20 September 2011. As a consequence, the
    appeal lapsed. The appellant applied for condonation of the late
    filing of the record, and belatedly (during the hearing) for
    reinstatement of the appeal. Although the notice of appeal stated
    that the appeal was against the whole of the judgment and order,
    during the hearing of the matter it became clear that the appeal, if
    reinstated, would be limited to the order of forfeiture of the
    benefits.







  1. In
    her application for condonation, the appellant stated that her
    failure to file the record and bond of security timeously was not
    due to any intentional disregard for the rules of this Court but was
    for the following reasons:








  1. the
    appellant was without any legal representation after the appeal had
    been lodged until after the appeal had already lapsed, andshe was
    not versed with the procedures relating to the prosecution of
    appeals;








  1. the
    late transcription of the record and the time it took to have it
    transcribed, indexed and bound was due to no fault of appellant; and







  1. respondent
    had an obvious agenda to frustrate her at every turn in prosecuting
    the appeal by embroiling her in various legal suits so that she
    would be overwhelmed by the costs of litigation and abandon the
    appeal.








  1. It
    is also appellant’s case that shehas reasonable prospects of
    success on the limited issue of forfeiture of benefits.In this
    regard she disputed the following finding of the Court which she
    alleges is the basis for the terms of the forfeiture order:








As
I have shown above, the defendant was the sole cause of the breakdown
of the marriage. Besides, she contributed very little, if any, to the
building up of the joint estate. On the totality of the evidence, I
am satisfied that the plaintiff has established that the defendant
should forfeit the benefits.’







However, it became clear during the
hearing of this matter that the appellant did not actively persist in
her appeal in relation to the culpable conduct which gave rise to the
forfeiture order. This was not surprising given the evidence led in
the Court below relating to the conduct of the appellant and her
failure to lead any evidence to establish misconduct on the part of
the respondent.







  1. Appellant
    asserts that this finding and the consequent terms of the forfeiture
    order were wrong in law and stand to be overruled on appeal, with
    costs.






The
submissions



  1. Counsel
    for the appellant submitted that condonation for the late filing of
    the record and bond of security should be granted because appellant
    had been without legal representation from 16 June to 18 August 2011
    andshe was a lay person who was not conversant with the Rules of
    Court especially in respect of the requirements for prosecuting an
    appeal from the High Court to this Court. Notwithstanding the fact
    that appellant was a final year law student at the relevant time it
    could not be said that the appellant would be conversant with the
    intricacies of prosecuting an appeal, so argued counsel, as an
    incompleteacademic degree in law does not equip a person to deal
    with complex litigation.The bottom line of the appellant’s
    explanation is that she was unaware that the record had to be
    delivered by 1 July 2011. She states she onlybecame aware that the
    record should have been delivered on 1 July 2011 when she consulted
    with counsel on 27 July 2011. Counsel further submitted that regard
    must be had to the fruitless litigation instituted against her by
    the respondent in the magistrate’s court on 14 July 2011 and
    the eviction proceedings launched in the High Court on 30 August
    2011. These proceedings, the appellant claims, was intended to
    pressurise her into accepting the judgment and order of the Court
    below and burdenher with legal costs. Inthe circumstances, so argued
    counsel, it cannot be said that the appellant was wilfully,
    flagrantly or grossly in violation of the rules of this Court. He
    submitted that the appellant had provided an acceptable and
    reasonable explanation for both the delay in delivering the appeal
    record and the delay in seeking condonation.







  1. Regarding
    the forfeiture order
    ,
    counsel argued that the allegations in the respondent’s
    particulars of claim fell short of the requirements necessary for a
    Court to issue a quantified or specific forfeiture order. In support
    of this submission, counsel referred to two recent High Court
    decisions
    .2
    These cases held that a Court must at least be appraised ofboth the
    value of the estate at the date of marriage and at the date of
    divorce as well as ofthe contributions made by the parties during
    the subsistence of the marriage before it can make a specific
    forfeiture order. On that basis,counsel argued, the Court belowwas
    at most entitled to make a general forfeiture order and that there
    was no basis upon which the Court below could have issued a specific
    forfeiture order
    .








  1. Counsel
    further relied on Articles 16
    3
    and 22
    4
    of the Constitution of Namibia. He argued that the marriage between
    the appellant and the respondent lasted for 17 years and that,it is
    uncontroverted that the appellant was gainfully employed in senior
    executive positions and made contributions to the joint estateduring
    that period. He arguedthat Article 16(1) does not allow for a
    limitation on the right to property other than within the narrow
    confines allowed for by the Article’s express language. It
    only limits the rights of non-Namibian citizens to acquire property
    and provides that the State may expropriate property. Counsel
    submitted that apart from these limitations, the right to property
    may not be limited whether by statute, common law, or customary law.
    He argued that an order of forfeiture,arising from the common law
    ,
    violated the property rights of a spouse against whom such order is
    granted.







  1. Counsel
    for the respondent argued that the appellant had failed to comply
    with rules 5(5)
    (b)5and86
    of the rules of this Court and thatthe appeal is accordingly deemed
    to have lapsed
    .She
    arguedthat the explanation given by the appellant is not sufficient
    to warrant condonationand reinstatement of the appeal, particularly
    as the record of the proceedings in the Court below was transcribed
    before judgment was handed down at a time when appellant was
    represented.








  1. On
    the forfeiture order, respondent’s counsel argued that the
    Court below had granted a general forfeiture order not a specific
    forfeiture order. She argued that an order for the forfeiture of the
    benefits arising from a marriage in community of property is a well
    recognised legal remedy and does not infringe the appellant’s
    constitutional rights in any way; thus the forfeiture order sought
    by the respondent was correctly granted by the Court below.








Issues for determination



  1. The
    following questions arise for decision:







(a) Should the appeal be reinstated?







(b) Is an order of forfeiture of the
benefits of a marriage in community of property in conflict with
Article 16 of the Constitution?







(c) What is the proper interpretation
of the Court order, is it a general order of forfeiture or a specific
order of forfeiture?







(d) If the order properly interpreted
was a specific order of forfeiture, was the High Court entitled to
make such an order on the basis of the pleadings and the evidence?







Should the appeal be reinstated?



  1. Whether
    the appeal should be reinstated depends on whether the appellant
    should be granted condonation for her late filing of the appeal
    record and bond of security. Non-compliance with rule 5(5) has the
    effect that the appeal lapses and it may only be revived upon the
    appellant applying for and the court granting condonation for the
    non-compliance.
    7








Application for condonation



  1. The
    appeal was noted timeously but appellant did not lodge security for
    costs and the record on appeal timeously. The appellant statesthat
    the record was not delivered on time because she was without legal
    representation from 16 June to 18 August 2011 and that she was not
    conversant with the procedures relating to the provisions of appeal;
    that the record was transcribed late; and that the respondent
    engaged the appellant in other litigation with the sole purpose of
    burdening her with legal costs. The appellant states that she did
    not tender security on time as the amount the respondent required
    was exorbitant and the appellant was severely constrained
    financially as she had paid for the divorce trial without assistance
    from the respondent. The respondent opposed the application for
    condonationon the grounds, inter alia, that the appeal was frivolous
    or vexatious and had no prospects of success. The respondent further
    asserts that he has been prejudiced by the delay particularly
    because notwithstanding the dissolution of the marriage, the
    appellant refused to vacate the property in KleineKuppe to which the
    respondent has no access but which he has to maintain.







  1. In
    deciding whether to grant condonation for the late filing of the
    record and bond of security, this Court will consider first the
    length of the delay; secondly, the explanation for the delay;
    thirdly, the prejudice to the parties; and fourthly, the prospects
    of success.








  1. Turning
    to the first issue, the time between 1 July 2011 when the record
    should have been filed and 20 September 2011 when the record was
    filed is a period of two and half months.This is a relatively long
    delay, especially given that the record had been transcribed prior
    to the judgment being handed down in the High Court. We were not
    referred to any judgment of this Court condoning such a long delay
    for the filing of the record.








  1. The
    explanation for the delay does not hold weight for various reasons.
    The appellant is a final year law student and cannot be treated as a
    lay litigant who is unfamiliar with legal procedures. Moreover,
    theappellant was informed by a letter dated8 July 2011 from the
    respondent’s attorneys that her appeal had lapsed as a result
    of her failure to lodge the record. She was informed that as a
    consequence of the lapsing of the appeal, the order by the High
    Court had come into force, so she should have realised the
    importance of the filing of the record. Appellant took no steps to
    lodge the record notwithstanding that letter.Appellant maintains
    that she only became aware that the record should have been lodged
    on 1 July 2011 when she consulted with counsel on 27 July 2011.
    Thereafter even when, on her own version, the record wascompletedon
    2 September 2011, she did not expedite its lodging. Appellant
    contends that she was without legal representation from 16 June to
    18 August 2011 but there is no explanation given as to why the
    record could not have been prepared before 1 July, or as to why her
    former legal representatives withdrew. This, despite the fact that
    they lodged a confirmatory affidavit.







  1. It
    is also appellant’s case that the respondent engaged her in
    other litigation with the sole purpose of ruining her financially
    and yet that litigation, on her own version,onlycommenced during
    August, after the appeal had lapsed. As to the failure to file the
    bond of security on time, appellant contends that she was severely
    constrained financially as she had to pay the bill of her other
    lawyers without the assistance of the respondent.This averment jars
    with the facts on the record before us which shows that on 10
    January 2011 the respondent’s legal representatives paid to
    the appellant’s lawyers a sum of N$20 000,00 for appellant’s
    legal costs, in addition to N$5 000,00 paid earlier on for the same
    purpose.







  1. There
    is a dispute between the parties as to prejudice. The appellant
    asserts there has been noprejudice;but the respondent says that he
    has been acutely prejudiced. He states that since the divorce the
    appellant has refused to vacate the property in KleineKuppe and that
    he has had no access to the property although he continues to
    maintain it and pay the instalments due under the mortgage as well
    as paying forall the necessities of the household. One year after
    the divorce the appellant refuses to contribute anything towards the
    household althoughshe is gainfully employed. He further states that
    the appellant unlawfully removed household items from the
    KleineKuppe property and took them to her newly acquired properties.
    It is also clear that the respondent is unable to finalise the joint
    estate or his affairs pending the outcome of the appeal. This is
    prejudicial to the respondent.








  1. The
    fourth issue that requires consideration is the question of
    prospects of success; this is a matter to which this judgment now
    turns. A determination of the prospects of success requires a
    consideration of the remaining three issues in the appeal: if the
    appeal should be reinstated, is an order of forfeiture of the
    benefits in conflict with Article 16 of the Constitution of Namibia;
    what is the proper interpretation of the Court order: is it a
    general order of forfeiture or a specific order of forfeiture; and
    if the order properly interpreted was a specific order of
    forfeiture, was the High Court entitled to make such an order on the
    basis of the pleadings and the evidence.






If
the appeal should be reinstated, is an order of forfeiture of the
benefits in conflict with Article 16 of the Constitution?



  1. Counsel
    for the appellant argued that Article 16 of the Constitution
    permitsno limitation to the right to property and that therefore the
    right to property may not be limited whether by statute, common law
    or customary law. An order of forfeiturebasedon the common
    lawviolates the property rights of a spouse against whom such order
    is granted.







  1. The
    High Court made the forfeiture order in accordance with the common
    law. Where a marriage in community of property is dissolved by the
    Court, dissolution of the community of property takes place as a
    matter of course, irrespective of whether or not it is expressly
    mentioned in the Court’s order
    .8It
    is a long established practice to ask, as part of the relief claimed
    in an action for divorce where the marriage is in community of
    property, for a dissolution of the community and for a forfeiture of
    the benefits of the marriage.
    9
    It is now settled law that where the Court grants a divorce on the
    ground of adultery, and the marriage is in community of property, if
    the successful plaintiff claims an order that the defendant forfeit
    the benefits derived from the marriage in community, the Court has
    no discretion to refuse to grant such an order.
    10







  1. In
    this jurisdiction the principle above was reaffirmed in
    Opperman
    v Opperman
    .11It
    was recently reiterated in the High Court of Namibia when Heathcote
    AJ stated:








Clearly,
therefore, in the absence of the applicability of the Divorce Act, 70
of 1979 in Namibia, the common law and its principles in as far as
forfeiture orders are concerned, still apply and should find
application in respect of each and every divorce case, even if
unopposed.’
12







  1. In
    Persad v Persadand
    Another
    ,13Didcott
    J referring to the South African Divorce Act 70 of 1979 stated:







For,
as I understand the statute, it left untouched the concept of a
forfeiture of benefits
,
… not altering what was then envisaged or encompassed by the
notion in the eyes of the common law, but merely defining and
adumbrating the circumstances in which the Court was empowered to
order a forfeiture
.’






The
genesis of the Court’s power lies in the system of divorce
based on matrimonial misconduct.
14
An order for forfeiture of benefits is designed to protect the rights
of the plaintiff to his or her separate contribution to the property
of the marriage, and these include not only windfalls such as
bequests and gifts, but also acquisitions made as a result of
industry, economy or investment.
15






  1. The
    constitutional challenge to the common law rule was not raised in
    the High Court. It is an undesirable practice to challenge the
    constitutionality of a law for the first time in this Court, amongst
    other reasons, because it results in this Court not obtaining the
    benefit of the views of the High Court on the issue. Nevertheless,
    because the issue in this instance is purely legal, it is
    appropriate to deal with this argument in order to give guidance on
    this important constitutional matter.







  1. The
    appellant’s property is not being expropriated. The question
    is whether the order interferes with the right in Article 16 to
    acquire, own and dispose of all forms of immovable property. The
    order of forfeiture is an order following upon a determination of
    the rights of the parties inter se at the termination of their
    marriage. Just like any other court order determining the rights of
    property between two individual parties, whether it be a claim for
    contractual damages, a reivindicatio, or for unjust
    enrichment, an order that follows such an investigation determines
    the legal relationships between the parties and flows from that
    determination. The constitutional protection of the right to
    acquire, own and dispose of property cannot be interpreted to mean
    that the determination of legal rights as between married persons
    according to the common law has infringed constitutional rights
    simply because it affects the property holdings of the spouses.
    Parties to a marriage in community of propertywho do not enter into
    an antenuptial contract freely accept that both at the commencement
    and termination of their marriage, theirproperty rights will be
    affected and regulated in accordance with the law. At commencement,
    by the establishment of a universal partnership and the creation of
    a single joint estate as part thereof, and at termination, by the
    untangling of the partnership and division of that estate in
    accordance with the law. The effect on property rights is a
    necessary and ineluctable consequence of a marriage in community of
    property and the Court’s determination of the parties’
    respective rights thereto within the applicable principles of the
    law cannot be construed as a constitutionally impermissible
    interference with property rights. This argument therefore bears no
    prospects of success.






What
is the proper interpretation of the Court order, is it a general
order of forfeiture or a specific order of forfeiture?



  1. The
    appellant asserts that the order made by the High Court, properly
    interpreted, was a specific order of forfeiture. Counsel continued
    that on the record before it, the High Court was at most entitled to
    make a general forfeiture order. The respondent on the other hand,
    asserts that the order made by the Court belowwas a general
    forfeiture order and that what the Court further did was
    permissible.








  1. In
    his amended particulars of claim, respondent inter alia prayed for
    the forfeiture by the defendant of the benefits of the marriage in
    community of property, in the alternative, in the event the Court
    below not so ordering, a forfeiture order, save for the tender made
    to the appellant, which was subject to the suspensive condition that
    appellant accepted the tender. The prayer raises the question
    whether the order made was a general forfeiture order.








  1. A
    specific forfeiture order is an order where a particular res is
    forfeited to the plaintiff.
    16
    When a specific forfeiture order is sought,a court requires a
    litigant to set out all the relevant information.
    17A
    general forfeiture order on the other hand has been described as
    follows:








Whereas
an order of division (or no specific order) means equal division,
irrespective of the amounts contributed to the joint estate by
husband and wife, an order for forfeiture of benefits may mean equal
or unequal division, depending on whether the defendant or the
plaintiff has contributed more to the common fund, for an order for
forfeiture, even if this is not expressly stated, amounts to an order
for division of the joint estate, coupled with an order for
forfeiture of the benefits which the guilty spouse has derived from
the marriage. Since the order does not affect benefits which the
innocent spouse has derived from the marriage, the estate will be
divided in equal shares if the guilty spouse has contributed more to
the joint estate than the innocent one, there being nothing on which
the order for forfeiture could operate, but if the contributions of
the innocent spouse exceeded those of the guilty one, the guilty
spouse will be deprived of the benefits which he has derived from the
marriage.’
18







  1. In
    Smith v Smith,19
    Schreiner J had put it as follows:








what
the defendant forfeits is not his share of the common property, but
only the pecuniary benefit that he would otherwise have derived from
the marriage . . . it [the order for forfeiture] is really an order
for division plus an order that the defendant is not to share in any
excess that the plaintiff may have contributed over the contributions
of the defendant.’







Where a general forfeiture order is
claimed no specific allegations are necessary in the particulars of
claim
.20







  1. Where
    a general forfeiture order is made, a division of the estate may be
    done by the parties on agreement
    ,
    or by a liquidator appointed by the court
    ,
    where the parties’ fails to agree
    ,
    or by the court itself.
    21
    Where no specific order as to the distribution of the estate has
    been made the first step in giving effect to an order for forfeiture
    of benefits is to ascertain how much of the joint estate has been
    contributed by the plaintiff and how much by the defendant.
    22







  1. In
    this case, the Court below stated that ‘no evidence has been
    placed before Court upon which it could determine the value of the
    joint estate in order to define the portion the guilty spouse will
    have to forfeit.’ It then proceeded to say:







This,
however, is still in the discretion of the Court. The defendant
failed to persuade the court to exercise itsdiscretion not to exclude
her from the benefits arising from their marriage. As I have shown
above, the defendant was the sole cause of the breakdown of the
marriage. Besides, she contributed very little, if any, to the
building up of the joint estate. On the totality of the evidence, I
am satisfied that the plaintiff has established that the defendant
should forfeit the benefits
.







  1. The
    forfeiture order granted states:








The
defendant forfeits the benefits of the marriage in community of
property subject to the tender made to her by the plaintiff in the
terms referred to hereunder if accepted.’
23






This
formulation is somewhat unclear. The order could mean that the
appellant forfeits the benefits of the marriage and accordingly is
only entitled to the assets specified in subparagraphs (i) to (v). If
the order is interpreted in this way, it is a specific forfeiture
order. Alternatively the order could be interpreted to mean that if
the appellant does not accept the tender made by the respondent as to
the division of the joint estate within a reasonable time, she will
forfeit the benefits of the marriage. This would be a general
forfeiture order subject to a suspensive condition. In my view the
latter interpretation of the order is the better one. It gives
meaning to the words ‘if accepted’ in the order and is
consistent with the reasoning of the Court cited at paragraph [33]
above.That being the case, on a proper interpretation of the order,
it is not a specific forfeiture order but a general forfeiture order
which will come into effect if the appellant does not accept the
division of the estate as set out in the tender.






  1. Accordingly,
    if the appellant accepts the tender made by the respondent, she will
    receive the listed assets as her share of the joint estate. If she
    does not accept the tender within a reasonable time, the general
    forfeiture order made by the Court must be given effect.








Was the High Court entitled to make
the forfeiture order on the basis of the pleadings and the evidence?



  1. Given
    my conclusion that, properly construed the order is a general
    forfeiture order, there can be no doubt that the Court below was
    competent to make it on the record before it
    24and
    this issue accordingly requires no further consideration.






Conclusion



  1. Given
    the conclusion that I have reached that the order made by the High
    Court was a general forfeiture order, subject to a suspensive
    condition, the appellant’s argument that the order was
    impermissible on the record before the court cannot succeed.
    Accordingly I conclude that there are no prospects of success in
    this appeal.








  1. I
    now return to the preliminary question whether condonation for the
    late filing of the record be granted and therefore the reinstatement
    of the appeal. Given the fact that the delay of 2½ months is
    long and no reasonable explanation was offered for the delay, and
    importantly there are no prospects of success, it would not be
    appropriate to grant the application for condonation.







  1. In
    the circumstances, the appropriate order is that the application for
    condonation of the late filing of the appeal record is refused and
    the matter is struck from the roll.






Costs



  1. The
    costs should follow the cause. The appellant should be ordered to
    pay the costs of the respondent, such costs to include the costs of
    one instructing and one instructed counsel.







  1. The
    effect of this Court’s decision is that the High Court order
    stands as explained at paragraph [34] above.That order is a general
    forfeiture order which will come into effect if the appellant does
    not elect to accept the tender made by the respondent, as reflected
    in the order of the Court below, within a reasonable time. This
    Court is of a view that given the delays occasioned by this appeal,
    it would be fair to give the appellant 30 days from the date of this
    order to accept the tender.






Order



  1. The
    following orders are made:







  1. The
    application forcondonation of the late filing of the appeal record
    is refused.


  2. The
    appeal is struck from the roll.


  3. The
    appellant is ordered to pay the costs of the respondent, such costs
    to include the costs of one instructing and one instructed counsel.
















______________________



MAINGA JA



















_______________________



MARITZ JA











________________________



O’REGAN AJA









APPEARANCES

















APPELLANT:



Mr
A H G Denk


Instructed
by Swarts& Bock Legal Practitioners



RESPONDENT:



Ms
C E van der Westhuizen


Instructed
by Kruger, van Vuuren& Co







1
See Elias NdevanjemaShikongo v Margaret Shikongo (born Thompson),
Case NoI 2802/2010 judgment of the High Court delivered on 1 April
2011.




2N
S v R H
2011 (2) NR 486 (HC) and Carlos v Carlos; Lucian v
Lucian
an unreported decision of the High Court delivered on 11
June 2011.




3
Article 16 provides:


(1)
All persons shall have the right in any part of Namibia to acquire,
own and dispose of all forms of immovable and movable property
individually or in association with others and to bequeath their
property to their heirs or legatees: provided that Parliament may by
legislation prohibit or regulate as it deems expedient the right to
acquire property by persons who are not Namibian citizens.


(2)
The State or a competent body or organ authorized by law may
expropriate property in the public interest subject to the payment
of just compensation, in accordance with requirements and procedures
to be determined by Act of Parliament.’




4
Article 22 provides:


Whenever
or wherever in terms of this Constitution the limitation of any
fundamental rights or freedoms contemplated by this Chapter is
authorised, any law providing for such limitation shall:


(a)
be of general application, shall not negate the essential content
thereof, and shall not be aimed at a particular individual;


(b)
specify the ascertainable extent of such limitation and identify the
Article or Articles hereof on which authority to enact such
limitation is claimed to rest.’





5The
relevant provisions of rule 5 provides:



(5) After an
appeal has been noted in a civil case the appellant shall, subject
to any special directions issued by the Chief Justice –



(a) …



(b) In all other cases
within three months of the date of judgment or order appealed
against or, in cases where leave to appeal is required, within three
months after an order granting such leave;



(c) …’




6
The relevant provisions of rule8 provides:



8. (1) If the
judgment appealed from is carried into execution by direction of the
court appealed from, the party requesting execution shall before
such execution, enter into good and sufficient security de
restituendo.



(2) If the execution of
a judgment is suspended pending appeal, the appellant shall, before
lodging with the registrar copies of the record enter into good and
sufficient security for the respondent’s costs of appeal,
unless-



(a) the respondent
waives the right to security within 15 days of receipt of the
appellant’s notice of appeal; or



(b) the court
appealed from, upon application of the appellant delivered within 15
days after delivery of the appellant’s notice of appeal, or
such longer period as that court on good cause shown may allow,
releases the appellant wholly or partially from that obligation.



(3) If the execution of
a judgment is suspended pending appeal, the appellant shall, when
copies of the record are lodged with the registrar, inform the
registrar in writing whether he or she –



  1. has
    entered into security in terms of this rule; or


  2. has
    been released from that obligation, either by virtue of waiver by
    the respondent or release by the court appealed from, as
    contemplated in subrule (2),



and
failure to inform the registrar accordingly within the period
referred to in rule 5(5) shall be deemed to be failure to comply
with the provisions of that rule.


(4)
The registrar of the court appealed from shall, whenever the parties
are unable to agree as to the amount of any security to be entered
into under this rule, determine and fix the said amount.’




7Otto
v Channel Life Namibia (Pty) Ltd
2008
(2) NR 432 (SC) at 441J-445H;
Kamwi v
Duvenhage
2008 (2) NR 656 (SC) at 663
to 664 par 23;
Ondjava Construction CC
and 2 Others v HAW Retailers t/a Ark Trading

2010 (1) NR 286 (SC);
Namib Plains
Farming and Tourism CC v Valencia Uranium (Pty) Ltd and 5 Others
2011
(2) NR 469 (SC).




8Gates
v Gates
1940 NPD 361 at 363.




9
Ibid.




10Ibid.




111962
(1) SWA 456 at 457H.




12Moresia
Carlos (born Engelbrecht) and Antonio Manuel Carlos; Alfonsine
Lucian (born Tjongarero) and Aloys Berthold Lucian
, unreported
High Court judgment delivered on 11 June 2011, cited above in note2.




131989
(4) SA 685 (DCLD) at 689E.




14Belinda
van Heerden et al, Boberg’s Law of Persons and Family, 2nd
ed. (1999) at 205 (note 170), see also Hahlo H R, The South
African Law of Husband and Wife
, 4th ed. (1975) at
362.




15Ex
parte de Beer
1952 (3) SA 288 (T) at 289H – 290A.




16Hahlo
H R, note 14, supra, at 435. See also Steenberg v
Steenberg
1963 (4) SA 870 (C); Ex parte de Beer 1952 (3)
SA 288 (T).




17Ex
parte Deputy Sheriff, Salisbury: In re: Doyle v Salgo
1957 (3)
SA 740 (SR) at 742D; NS v R Hcited above in note2.




18Hahlo
H R,note 14 above, at 435.




191937
WLD 126 at 127-128, Gates v Gates, cited above in note 8 at
363-364.




20See
cited above note 8 at 364 ;
N S v R H, Carlos v
Carlos; Lucian v Lucia
cited above in note 2 and Swil v Swil
1978 (1) SA WLD 790 at 793D-G.




21
See note 14 supra, at 432 and 435. See also Gates v Gates
cited above, note 8 at 369-70; Wertheimv Wertheim 1976 (4) SA
633 WLD at 636-7.




22
See note 14, supra, at 434.




23The
full order is set out in paragraph [3].




24See
Carlos v Carlos
and
N S v R Hcited
above in note 2
.