REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: I
In the matter between:
SHIRLEY EUGINIA HOESEB
Hoeseb v Hoeseb (I 3140/2009)  NAHCMD 116 (30 April
Coram: MILLER AJ
Heard: 08 April
Divorce proceedings – Marriage in community of property –
Plaintiff seeking specific forfeiture order in respect of immovable
properties – Applicable legal principles re-stated –
Absolution from the instance granted.
The plaintiff and the defendant were married in community of property
– Plaintiff instituted divorce proceedings claiming inter alia
a specific forfeiture order in respect of three immovable properties
forming part of the joint estate – The defendant sought an
order for absolution from the instance in respect of the forfeiture
order – The court restated the applicable legal principles and
found that based on the pleadings and the evidence adduced the
plaintiff was in law not entitled to such an order – Absolution
from the instance granted.
The defendant is absolved
from the instance in respect of prayers 2 and 3 of the particulars of
claim.The plaintiff is ordered to pay the costs.
MILLER AJ :
 The plaintiff and the
defendant became married to one another on 01 April 1995. The
marriage was one in community of property.
On 14 September 2009 the plaintiff caused summons to be issued
against the defendant seeking inter alia
an order for the dissolution of the marriage and certain
 For the purposes of
this judgment it is necessary to set out the plaintiff’s
particulars of claim in full. They read as follows:
PLAINTIFF is FENASTUS HOESEB, a adult male currently residing at
Nampower Court Unit 1, Van Rensburg Plein, Pionierspark, Windhoek,
Republic of Namibia and employed at Nampower, National Control
Building, Windhoek, Republic of Namibia.
DEFENDANT is SHIRLEY EUGINIA HOESEB (born SHIVANGULULA), a adult
female currently residing at Gavin Ralley Post Ganduate Village No.
80, Grahamstown, Republic of South Africa, whose full and further
particulars are to the plaintiff unknown.
parties are domiciled within the jurisdiction of the above
parties hereto were married to each other on the 1st of
April 1995 at Windhoek in community of property which marriage still
children were born of the marriage between the parties.
the subsistence of the marriage between the parties the defendant
wrongfully, maliciously and with the settled intention of
terminating the marriage between the parties, left the common home
during July 2008.
the premises the defendant has wrongfully and maliciously deserted
the plaintiff in which desertion she still persists.
the subsistence of the marriage, the parties purchased the immovable
(a) Section 1 Nampower Court, which immovable property is held by
Certificate of Registered Sectional Title No. 35/1998(1) and is
registered in both plaintiff and defendant’s name.
Erf 276, Prosperita, purchased by Mr. Hoeseb on 31 May 2002, (see
Annexure “A” annexured hereto).
Prior to the marriage between the parties the plaintiff purchased the
immovable property, to wit Erf 264, Katutura, which immovable
property is held by Title Deed No. T1087/1993 and is registered in
the name of the plaintiff.
Plaintiff has been solely responsible for payments of the purchase
price of the aforesaid immovable properties as set out in paragraphs
8.1 and 8.2 supra in the form of the payment of monthly bond
installments, transfer costs and other costs connected to the
aforesaid immovable properties and continues so to pay the said bond
Plaintiff is entitled to forfeiture of the matrimonial benefit by
virtue of the defendant’s conduct aforesaid and is, in
particular entitled to be awarded all defendant’s rights under
title to and interest in the immovable properties, to wit:
Unit 1, Nampower Court, Windhoek, Republic of Namibia
Erf 264, Katutura
Erf 276, Prosperita, Windhoek
An order for the restitution of conjugal rights and failing
decree of divorce.
order directing that the defendant forfeit the benefits arising from
the marriage in community of the immovable properties, to wit
1, Nampower Court, Windhoek, Republic of Namibia
276, Prosperita, Windhoek
properties shall become the sole and exclusively property of the
plaintiff, subject to the existing and other encumberances on the
order directing the defendant to sign all necessary documents to
give and effect transfer of the properties as set out in paragraph
8.1 into the name of the plaintiff, within 14 (fourteen) days of a
final decree of divorce granted in this matter, failing which the
Deputy Sheriff for the district of Windhoek is authorized to sign
all documents necessary to effect such transfer.
of the remainder of the joint estate.
of suit (only if defended).
and/or alternative relief.
AT WINDHOEK THIS 10TH SEPTEMBER 2009.’
 The defendant entered
an appearance to defend the action instituted against her and in due
course filed a plea together with a counterclaim. In the counterclaim
the defendant also seeks an order for the dissolution of the marriage
together with an order for the division of the joint estate.
 When the matter
proceeded to trial it became apparent that the only issue of any
consequence remaining was the plaintiffs’ claim that the
defendant should forfeit the benefits arising from the marriage in
community of property in respect of the three immovable properties
forming part of the joint estate.
 In a recent judgment
C.V.C; L v L 2012 (1) NR 37, Heathcote AJ embarked on an extensive
and thorough review of the law relating to both general and specific
forfeiture orders relating to divorce proceedings in marriages in
community of property. Following that exercise Heathcote AJ
formulated the relevant principles which apply.
 Since the plaintiff
in the present case seeks a specific forfeiture order in respect of
the immovable properties I will refer only to the principles stated
by Heathcote AJ in respect of specific forfeiture orders. They are
correctly stated by Heathcote to be the following at p. 46 and p. 47
of the judgment.
When the court deals with a request to issue a quantified or specific
forfeiture order, it is necessary to provide evidence to the court as
to the value of the estate at the date of the divorce. Similarly,
evidence about all contributions of both spouses should be led. The
fact that a husband or wife does not work, does not mean that he/she
did not contribute. Value should be given to the maintenance provided
to the children, household chores and the like. It would be readily
quantifiable with reference to the reasonable costs which would have
been incurred to hire a third party to do such work, had the spouse
who provided the services, not been available during the marriage. Of
course, he/she would then possibly have contributed more to the
estate, but these difficulties must be determined on a case by case
basis. Only in such circumstances can the forfeiture order be
When a court considers a request to grant a quantified forfeiture
order, evidence produced should include the value of the joint estate
at the time of the divorce, the specific contributions made to the
joint estate by each party, and all the relevant circumstances. The
court will then determine the ratio of the portion each former spouse
should receive with reference to their respective contributions. If
the guilty spouse has only contributed 10% of the joint estate that
is the percentage he or she receives. If, however, the 10%
contributor is the innocent spouse, he or she still receives 50% of
the joint estate. The same method as applied in the Gates’ case
should find application.
The court, of course, has a discretion to grant a specific or
quantified forfeiture order on the same day the restitution order is
granted, if the necessary evidence is led at the trial. In order to
obtain such an order, the necessary allegations should be made in the
particulars of claim ie the value of the property at the time of
divorce, the value of the respective contributions made by the
parties, and the ratio which the plaintiff suggests should find
application (where a quantified forfeiture order is sought). Where a
specific forfeiture order is sought, the value of the estate should
be alleged, and the specific asset sought to be declared forfeited
should be identified. It should then be alleged that the defendant
made no contribution whatsoever (or some negligible contribution) to
the joint estate. (Note: this is not the same as alleging that no
contribution was made to the acquisition or maintenance of the
specific asset.) I am of the view that it is only fair that
defendants also, in unopposed divorce actions (by and large getting
divorced in circumstances where the defendant is illiterate and would
not even understand the concept of forfeiture of benefits) should be
provided with such details.
In exceptional circumstances, and if the necessary allegations were
made and the required evidence led, it is possible for a court to
make a forfeiture order in respect of a specific immovable or movable
property (ie a specific forfeiture order). I say that this would only
find application in exceptional circumstances, because it is not
always that the guilty defendant is so useless that the plaintiff
would be able to say that he/she has made no contribution whatsoever,
or a really insignificant contribution (to the extent that it can for
all practical intents and purposes be ignored).
It is of no significance or assistance, if the plaintiff merely leads
evidence that, in respect of a specific property he or she had made
all the bond payments and the like. What about the defendant’s
contributions towards the joint estate or other movable or immovable
property in the joint estate?
It is also not a valid argument, to submit (as counsel for one of the
plaintiffs in the case did), that the matter is unopposed. The
question which arises is, does the defendant know what is claimed?
And in any event, the court has no discretion to act contrary to the
law simply because the matter is not opposed. No opposition does not
constitute an agreement. Any defendant is entitled to assume, even if
he/she does not oppose, that a court will only grant a default
judgment within the confines of the law.’
 As I had indicated I
agree with those remarks.
 I now turn to
consider the pleadings and the evidence of the plaintiff. It is
immediately apparent from the pleadings that they lack any
allegations as to the value of the estate nor is there any allegation
that the defendant had made no or a negligible contribution to the
joint estate. The pleadings contain only the bare allegation that the
plaintiff has been solely responsible for the repayment of the
purchase price of the properties through bond repayments and the fact
that the plaintiff paid for the transfer and other costs. That
allegation standing by itself and absent any further allegations does
not in my view in law entitle a plaintiff to a specific forfeiture
order even in cases where it is alleged, as it is in the instant case
that the defendant maliciously deserted the plaintiff. It is as
Heathcote AJ put it “…relief based on an equitable wish
rather than legal ground.”
 The evidence of the
plaintiff takes the matter no further. He states in evidence that the
defendant maliciously deserted him in 2008. On that occasion she had
returned with him from Grahamstown where she was studying. She
requested to be taken to the mother’s home and he left her
there. According to him she never returned to the common home to
resume their marriage.
 With references to
the assets and the value of the joint estate the evidence is sparse
and not complete. In the main the following documents were produced
tax invoice for a Mercedes-Benz which reflecting a purchase price of
valuation certificate in respect of Erf 276, Prosperity at a value
of N$1, 356.000.00.
valuation certificate in respect of Unit 1 on Erf 1106, Pionierspark
at a value of N$1, 200.000.00.’
 The plaintiff
included a list of assets which he stated the plaintiff removed from
the common home, including the Mercedes Benz and two other vehicles.
He states that the value of these assets, some of which were sold, is
 What I was not told
is whether or not this was the sum total of all the assets forming
part of the joint estate, nor was there any evidence of the value of
the joint estate as a whole. It appears from the evidence that there
are further assets in what was the matrimonial home, where the
plaintiff still resides. What they are and what the value of those
is, I do not know.
 Significantly the
plaintiff testifies that during the subsistence of the marriage the
defendant contributed to the joint estate by purchasing furniture,
bedding and clothing. Again I have no evidence of the value of those
contributions, but they can by no means in my view be described as
 At the close of the
plaintiffs’ case, Mr. Tjombe, who appeared for the defendant
sought an order for absolution from the instance in respect of the
plaintiffs’ claim for an order of forfeiture.
 In applying the
applicable legal principles to the facts adduced by the plaintiff I
find that in respect of the forfeiture order no reasonable court may
find for the plaintiff on that issue.
 In the result I make
the following orders:
The defendant is
absolved from the instance in respect of prayers 2 and 3 of the
particulars of claim.
The plaintiff is ordered
to pay the costs.
P J MILLER
PLAINTIFF : Z J GROBLER
Of Grobler & Company, Windhoek
DEFENDANTS: N TJOMBE
Of Tjombe-Elago Law Firm,