Loubser v De Beers Marine Namibia (Pty) Ltd (I 341/2008) [2013] NAHCMD 382 (26 September 2013);

Group

Full judgment

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REASONS FOR JUDGMENT

Case No: I 2002/2011



In the matter between:



T............................................................................................PLAINTIFF



and



T....................................................................................DEFENDANT



Neutral citation:

T v T (I 2002-2011) [2013] NAHCMD 377 (13 December 2013)



Coram: VAN NIEKERK J



Heard: 20, 21 June 2012; 12, 13, 14 March 2013; 24 April 2013

Delivered: 13 December 2013



Flynote: Husband and wife Divorce – Claims by plaintiff husband – Counterclaim by defendant wife – Condonation of plaintiff’s adultery refused – Final order or divorce granted in favour of defendant – Joint custody and control of minor child discussed – Custody awarded to defendant


REASONS FOR JUDGMENT


VAN NIEKERK J:



[1] In this matter I made an order on 13 December 2013 for which I now provide reasons.



The pleadings

[2] The parties in this matter were married in community of property at Windhoek on 19 August 2005. They have one child, who is a boy, born on 18 June 2006.  The plaintiff originally instituted action against the defendant for divorce, alternatively for the restitution of conjugal rights and failing which, a final order of divorce. The particulars of claim was amended a number of times.  The last amendment occurred shortly before argument was heard on the merits.  Amended particulars of claim were filed, but the claims for divorce, alternatively for the restitution of conjugal rights, failing which divorce, were omitted.  I only noticed this at a very late stage after judgment was reserved, but as there is no doubt that the omission occurred inadvertently, I shall deal with the matter on the basis that the amended particulars of claim include these prayers.

[3] According to the applicable prayer, the plaintiff’s main claim is based on adultery, but the amended particulars of claim do not include express allegations of adultery, only of an extra-marital relationship/affair with a party who was originally cited as the second defendant. The action has since been withdrawn against this person.  The allegations against the defendant as set out in paragraph 7 of the amended particulars of claim are that she wrongfully and maliciously deserted the plaintiff by 7.1 showing no love and/or affection towards the plaintiff; 7.2 acting violently towards the plaintiff by on various occasions assaulting the plaintiff and damaging his personal belongings, as a result whereof the plaintiff obtained a protection order against the defendant; 7.3 using abusive language towards the plaintiff; 7.4 staying out late in the evenings without any explanation as to her whereabouts; 7.5 abusing alcohol; 7.6 moving out of the common bedroom on 6 May 2011; and 7.7 engaging in an extra-marital relationship. Further allegations are made in substantiation of this relationship, namely 7.7.1 that the defendant absented herself from the common home and remained away until the early morning hours; 7.7.2 that the defendant lied to the plaintiff about her whereabouts; 7.7.3 that the defendant would leave her vehicle at a place and drive off in the vehicle of the third party; 7.7.4 that the defendant kissed the third party while being unaware of the plaintiff’s presence at the scene and upon the plaintiff’s approach, sped off with the third party; and 7.7.5 that the defendant has to date failed to reply truthfully to the plaintiff’ questions on the relationship with the third party.

[4] The plaintiff admits in the amended particulars of claim that he was involved in an extra-marital relationship, which he admits to be adulterous, from about October 2011 until about April 2012, and in respect of which he prays for condonation.

[5] The plaintiff also claims custody and control of the minor child of the parties and division of the joint estate.

[6] The defendant filed a counterclaim, which was later amended.  She claims an order for the restitution for conjugal rights, failing which a final order of divorce.  Although the particulars of claim contain some alternatives, it is essentially a claim based on the plaintiff’s alleged malicious desertion of the defendant by allegedly (i) physically abusing the defendant and her daughter from a pre-marital relationship with another man; (ii) falsely obtaining a protection order against the defendant which order was later ‘withdrawn’ by the plaintiff; (iii) being excessively jealous of the defendant; (iv) falsely accusing the defendant of having extra-marital affairs with another man; verbally denigrating the defendant in the presence of the minor child, her family and colleagues; (vi) emotionally abusing the defendant; (vii) falsely obtaining a second protection order against the defendant (viii) engaging in an adulterous relationship with another woman (to whom I shall refer as X as the pleadings were not served on her) since May 2011; (ix) engaging since January 2012 in an adulterous affair with ND.

[7] The defendant alleges that, as a result of the plaintiff’s behaviour further cohabitation with him became intolerable and unbearable and as a result hereof she moved out of the common bedroom on 13 May 2011.  She makes certain further allegations in respect of the estate, to which I shall return later. 

[8] The defendant claims certain ancillary relief, including custody and control of the minor child.

General overview

[9] It is common cause that the parties are both Namibian citizens and well educated. The plaintiff holds a diploma in education.  He also holds an honours degree and a masters degree in management.  He occupies a senior management position at a large corporation.  The defendant is a quality assurance manager at a beer brewery. She is responsible to ensure that the beer brewed there is of good quality in terms of taste, colour and acidity and also that the packaging is in order.

[10] The parties were dating for about 3 – 6 months during 1995 while they were studying at UNAM.They lost contact when the defendant moved to Neudamm to study towards a Bachelors degree in Science and Marine Fisheries.  After her studies she moved to Walvis Bay where she worked.  The plaintiff traced her after 8 years and suggested that they meet up again.  They visited each other over the next five months as friends, but the plaintiff indicated that he was adamant that they should get married as this was the reason why he came back to her.  During April 2005 the defendant moved back to Windhoek and they lived together in the plaintiff’s house in Tauben Glen until the marriage on 19 August 2005.  A week later he travelled to the USA to study for 18 months, while she remained behind.  Except for one visit home during December 2005 and a trip by her to the USA, they did not see each other again until December 2006.

[11] One child was born from the marriage. It is common cause that the defendant has a daughter born before the marriage from another relationship who also lived with the parties from 2005 to May 2011. As a result of the problems in the marriage, she went to stay with her uncle and his family for several months, but returned to the common home during November 2011.

[12] From all accounts it would appear that the parties were initially happy in their marriage. Both parties testified to this and so did the defendant’s brother, AK.It seems that from about 2008, however, problems began to appear. The main problems appear to have centred on issues concerning trust and respect. The marriage was marked by arguments, turmoil and endless drama.There were times that the parties locked each other out of the house at night. On more than one occasion the defendant had to sleep outside in her car or on the floor at a relative’s house.  On one occasion the plaintiff broke into the marital home with a pickaxe while the defendant was sleeping inside. The plaintiff approached the domestic violence court on no less than three occasions to obtain protection orders against the defendant.  On another occasion the plaintiff embarked on a 20 minute car chase across the city trying to apprehend the defendant and a man he suspected of being her lover. There were countless instances when the parties’ long-suffering friends and relatives were summoned to their home at all hours of the day and night to mediate between them in order to restore peace and harmony. The plaintiff laid several charges of theft of his clothes and other personal belongings against the defendant.  At the time the trial commenced, the relationship between the parties was not good, to say the least. By then they had not been sharing a bedroom and also litigating for about a year, although the defendant only left the common home about two months before the trial started as a result of the last protection order.

[13] By way of summary it will suffice to state at this stage that the plaintiff leaves me with the impression that he was needy, clingy and lacking in self-confidence, at least as far as his relationship with the defendant is concerned.  He clearly is a person who needs to be shown lots of emotional and physical warmth, but his overly demanding ways appear to have had the opposite effect - instead of achieving the closeness which he craved, it drove the defendant away.

The plaintiff’s case

[14] The plaintiff gave some background information about his upbringing.  He stated that he was raised in a large family.  Discipline was important and all the children were raised to achieve their best. Education is very important to them.They were taught to pray, to respect others and to hold good values.  In his view a difference in family background and a difference in values exacerbated the breakdown of his marriage with the defendant.  The defendant disputed to some extent the rather glowing report given by the plaintiff and pointed to some behaviour which does not speak of family values. However, I think that, by and large, the plaintiff’s evidence about his upbringing may be accepted. It is rather a question of whether he was always able to uphold these values during the marriage.

[15] I now turn to the instances of the defendant’s alleged misconduct upon which the plaintiff relies. In this regard I shall follow the numbering of the amended particulars of claim.

Paragraph 7.1 – no love and affection

[16] The first complaint is that the defendant did not show him love and affection.  She would go out at night or not come home after work without letting him know and then stay out late.  Often when he tried to contact her by cell phone, she would not return his calls. She would at times reject his embraces and kisses and say he should not even touch her. It was very hard for him because he is a loving person. She sometimes threatened to go out with other men.At times she would go out without him and return home late at night in a drunken state.

[17] The defendant denied that she generally acted in this way.She testified that she is usually a loving person and that she demonstrated this to the plaintiff. It is also clear however, that the defendant at times became exasperated by the constant demands for attention sometimes displayed by the plaintiff.  The evidence shows that the plaintiff seems to be a person who lacked self-confidence in his relationship with the defendant. He appears to need re-assurance upon re-assurance that he is important and loved. At times he came across as needy and clingy. Quite clearly this began to irritate the defendant, who seems to be more mature, independent and self-confident.  The plaintiff clearly needed more attention than the defendant was able to give. As his counsel repeatedly put it to the defendant in different ways, she failed to fulfil the plaintiff’s needs.However, although this may be a de facto cause contributing to the failure of the marriage, it certainly is not an actionable cause de lege.

[18] Another difficulty I have with the plaintiff’s evidence is that it is rather vague and general. He did not specify at what stage of their marital relationship this behaviour manifested or in what context.On the other hand, the defendant was able to state that she did at times refuse to give him love and affection when his demands were excessive and inappropriate, e.g. on the day when he kept calling her to tell him that she loved him or to put ointment on his lips while she was hosting a ladies day at their home and the plaintiff had broken his promise to absent himself in order to provide the female visitors with some privacy around the swimming pool.

[19] Ultimately I am not able to conclude that the plaintiff proved that the defendant acted in the manner alleged with the malicious intent thereby to end the marriage.

Paragraph 7.2 – acts of violence

[20] His second complaint is that she acted violently towards him by assaulting him and damaging his personal belongings as a result of which he obtained a protection order against her. The defendant in her plea denied these allegations and pleaded that it was the plaintiff who assaulted her and that the plaintiff admitted in writing that he obtained a protection order without any basis and also withdrew the application.

[21] In support of his complaint the plaintiff testified that she slapped him on various occasions and tore his clothes. Once she broke his watch and his glasses. On one occasion she chased him with a knife, on another occasion with a broom and sometimes she threw objects at him. I pause to note that the plaintiff did not link these general allegations to specific incidents, which would have provided some context to the allegations.  This creates difficulty in properly assessing his claims. He said that he called the City Police on a number of occasions because of her behaviour. On three occasions he applied for a protection order, which was granted. In at least one of these cases (the last one) the result was that she had to move out of the common home. The defendant’s evidence is that the second order did not stipulate that she had to leave the house, but that the plaintiff convinced the police to put her out. This evidence was not directly disputed. It is also not clear how long she stayed away and when and under what circumstances she returned.

[22] The defendant denied that she assaulted the plaintiff or damaged his property.  She did admit that she once threw his watch on the floor after an altercation when the plaintiff without reason assaulted two of her colleagues and threw them out of the house.  After the incident BK’s brother arrived at the house drunk and assaulted her while the plaintiff did nothing to protect her. In a fit of anger, frustration and humiliation she threw the watch on the floor to vent her emotions at the plaintiff.

[23] It is common cause that the defendant took up karate during January 2010. The plaintiff testified that she is very fit and sometimes she would threaten her karate skills on him or even kick him.The defendant denied this and stated that they are taught never to use karate to start a fight and that the values of honour, discipline and respect for others are instilled in them.

[24] The plaintiff acknowledged that there was an occasion when he broke the front door of their home open when the defendant had locked him out at night and was not answering her phone. When he got inside and confronted her about this, she threw a glass at him, whereupon he slapped her. He sustained cuts on his leg in the incident. The plaintiff’s witness BK testified that the plaintiff called him to the parties’ house one night because they were fighting. He observed that the plaintiff had a mark on his shoulder and that his leg was bleeding. The report made by plaintiff was to the effect that he had returned from a working trip to find that the defendant was having a party with her colleagues at their house. An argument and physical skirmish broke out between the spouses.When he arrived at the house, the defendant went to lock herself into the bedroom. The defendant denied such an incident took place.The evidence presented by the plaintiff in this regard is not satisfactory. From the differences in their descriptions, it is clear that the plaintiff and BK did not testify about the same event. The plaintiff never testified that there were two incidents during which he sustained bleeding wounds on his leg, so it cannot be a case that BK was testifying about a different incident. I do not know whether to choose the version by the plaintiff or the version by BK. In any event BK was not present when the fight was happening and was therefore not able to say who assaulted whom.

[25] According to the plaintiff the withdrawal of the application for a protection order occurred in the following circumstances. It was on the first occasion of three that he brought such an application. As I understand it, an interim order was granted during June 2011 at about the time that he also instituted this action, but the defendant pleaded with him not to continue with the application and that they should work on their weaknesses. In this spirit they reached agreement and both attended at the magistrate’s court to sign the necessary documentation. He denied obtaining the order on a false basis. It seems that the plaintiff’s case was that the defendant beat him and threw objects at him when she came home drunk the previous evening. They had no sleep that night. The next day he did not want to give her a lift to town. She nevertheless got into the bakkie with him. He drove to the police station where it seems he parked the car for safety and then he went by taxi to the magistrate’s court to apply for the order.

[26] The second application for a protection order arose during October 2011. The plaintiff packed in order to travel the next day. When the plaintiff came home she threw his clothes out of the bag, pushed him around the house and swore at him. The defendant’s version is that the plaintiff had packed his clothes into her bag and when she told him not to use her bag, he overreacted and some swearing occurred. The plaintiff then called his lawyer who advised him to obtain a protection order. She also phoned her lawyer who gave her the same advice.  However, the plaintiff succeeded in lodging his application first. In this instance the violence, if any, does not appear to be serious and I also bear in mind that the parties were already litigating at that stage.

[27] On the available evidence it is not clear on what evidence the third application for a protection order was based.

[28] To sum up my impressions of the plaintiff’s complaint, I am of the view that, even if I accept on a generous interpretation of the plaintiff’s evidence that the defendant may at times have committed acts of some violence against the plaintiff during their numerous arguments and fights where either or both of them had been drinking, I am not able on the available evidence to conclude that these assaults were of such a nature and consistency that it can be concluded on a balance of probabilities  that she had the malicious intent thereby to end the marriage.

Paragraph 7.3 – abusive language

[29] The plaintiff alleges that the defendant used abusive language towards him, which the defendant denies in her plea.  Apart from general evidence concerning her swearing at him during arguments, the plaintiff did not deal with specifics, except that the defendant on several occasions abused him by saying that she had heard that he is a homosexual and that he sleeps with other men. The last occasion was after he obtained a protection order, but he did not say which protection order, which renders his evidence vague in this respect. I am not sure that it is necessarily abuse if a person states something which is, say, untrue or even hurtful, which they have heard from another source. I suppose it depends on the manner in which it is said and with what intention it is said.As the defendant did not deal with this issue in cross-examination or during her testimony, I accept that she did make such statements.  If she made such statements to her husband in a taunting or negative way they could be seen to be malicious.As I understand it, at least on one of these occasions the statements were uttered during an argument or a conversation in which she also said that he should not call her ‘honey’, that he must just go, and that there are many other men who are interested in her. I am satisfied that the defendant probably intended to hurt the plaintiff in a manner calculated to drive him away or that she at least foresaw that her statement could have this effect but that she did not care.

[30] However, the plaintiff continued to state that they ‘then’ requested the intervention of Dr Whittaker to counsel them. It is common cause that at this stage the parties put in a collective effort to save the marriage and that matters went well for about four months. As acts of marital cruelty can be condoned in actions based on constructive desertion, I am inclined not to give much weight to utterances of the nature being discussed which were made before the parties consulted Dr Whittaker. However, as I have indicated, the plaintiff did testify that the last of these statements was made when the defendant came home after he obtained a protection order against her, although he did not specify which of the three protection orders. Be that as it may, all three orders were made after the parties consulted Dr Whittaker. Given that the defendant has not countered the plaintiff’s evidence on the subject, I think it can be concluded that she made this last statement with the same intention as before.

Paragraph 7.4 – stays out late without explanation

[31] The plaintiff’s evidence about this aspect is that the defendant would often go out at night or not come home after work without informing him of her whereabouts and then stay out late. When he tried to contact her by cell phone, she would not return his calls.The defendant denied this evidence, stating that the plaintiff always knew where she was.  There is no independent witness on this issue. Once again the plaintiff’s evidence is rather general without reference to specific incidents.  Where he does mention a specific incident, the rest of the evidence shows that he knew where the defendant was, but that she did not always answer all his calls during the evening.   Relevant examples are the baby shower event and the ladies day at their home.  It is not possible for me to choose between either version. The result is that the plaintiff has not proved this misdemeanour on a balance of probabilities.

Paragraph 7.5 - abuse of alcohol

[32] The plaintiff alleges that the defendant abuses alcohol.  He testified that she drank on a daily basis. She got free beer from her employer, which is a brewery. In his view she easily succumbed to peer pressure by socializing and drinking over weekends at the slightest invitation, leaving the plaintiff to care for the children.He presented evidence by his friend BK and his brother ST that whenever there were problems between the parties and they were called in to mediate or defuse the situation, the parties had had alcohol. ST also stated that whenever he visited them, the defendant was drinking beer.

[33] The defendant admitted that she used alcohol at home and at social functions. It is common cause that by virtue of her work she must regularly taste beer for quality. Also, that her employer allowed employees to take up to three free cases of beer or soft drinks per month to distribute amongst friends and family for promotional purposes. While she sometimes made use of this benefit, she would often not take any free drinks, or would take only some soft drinks or a mixture of drinks. She denied however that she had an alcohol problem or that she made a habit of abusing alcohol.

[34] During cross-examination the plaintiff highlighted transactions on her bank statements relating to purchases from bottle stores in an effort to demonstrate excessive purchases of alcohol. The defendant even pointed out some purchases which the plaintiff had missed. However, the only large purchases were on her birthdays when she had a party at home and on one occasion when they hosted a ladies day at their home. The average amount spent on alcohol over 6 years was about N$80 per month, which is very little. Sometimes months went by without any purchase, unless it was done in cash, which seems unlikely unless small amounts were involved.  In my view this evidence does not provide support for the plaintiff’s allegation.

[35] The reports by the clinical psychologist handed in by agreement between the parties as Exhibits “A” and “B” do not identify alcohol abuse as an actual problem although the plaintiff reported to Dr Gonzo that the defendant abused alcohol. Dr Gonzo states that the reports by the plaintiff that the defendant prepares a drink as soon as she walks into her house to unwind after a day’s work indicate signs of ‘functional alcoholism’.However, the expert herself found no signs that the defendant is an alcoholic or has alcohol dependence.

[36] While I have no doubt that the defendant, as does the plaintiff, frequently enjoys a drink, the conclusion I have come to on an overview of all the available evidence is that the plaintiff has not proved the complaint of alcohol abuse against the defendant.

Paragraph 7.6 – moved out of common bedroom

[37] The plaintiff alleges in the amended particulars of claim that the defendant left the common bedroom on 6 May 2011 with the malicious intention to end the marriage. The defendant’s plea thereto is that she left the bedroom on 13 May 2011 as a result of the plaintiff’s rude behaviour towards her which made further co-habitation with him intolerable and unbearable.

In evidence the plaintiff did not really give much detail about what prompted the defendant to move out and precisely what the circumstances were.  The detail came more from her evidence, supported by witnesses, and from his evidence in denial of the allegations in her counterclaim as amplified by the further particulars. For reasons which will become apparent when I deal with the defendant’s amended counterclaim, I am of the view that the plaintiff did not prove that the defendant unlawfully left the bedroom with the fixed and settled intention to put an end to the marriage which renders her guilty of malicious desertion on this ground.

Paragraph 7.7 – extra-marital affair with SE

[38] The plaintiff testified that during December 2010 the defendant had her hair done one day for which the plaintiff paid. She returned home briefly and said that she was going to visit her brother. The plaintiff then said he would check on the children who were visiting his brother during the school holiday. About an hour later a friend named BK called to say that he had seen the defendant with another man and that they had driven away in a Prado vehicle. The plaintiff called the defendant on her phone, but she did not answer. He went looking for her in town and by chance saw their Mercedes Benz vehicle parked at the Zoo gardens. At about 22h30 the defendant arrived with the former second defendant (“SE”) in his vehicle.The plaintiff observed them kissing intimately and when he approached them, they sped off. He chased them all over town but to no avail.  Later he returned home where the defendant also arrived later. She acted as if nothing had happened. When he confronted her she lied about the name of her companion, which the plaintiff found out was SE.

[39] The defendant acknowledged in evidence that she had struck up a friendship with SE, whom she had met at her karate class.  The allegedly agreed to meet to drive around that afternoon looking at second hand cars as she was intending to buy one. She admitted in the witness box that she lied about this to the plaintiff and that she pretended to be going to her brother.However, she said that the plaintiff was so jealous that he would have caused a scene if he knew what she was really doing. She denied that she was having an affair with SE and also that they had kissed intimately. In the last respect she was actually corroborated by the plaintiff’s witness BK, who was present with the plaintiff when the defendant and SE returned to her car.

[40] The plaintiff’s version is that after this incident the defendant left the common home for three weeks ‘as she had found new love’. The defendant’s version is that the plaintiff told her to leave the house. He also said to her that he has moved on and that he has ‘an executive lady who is ready to move in with him’.

[41] As I stated before, the plaintiff did not make clear allegations of adultery between the defendant and SE in the amended particulars of claim. The allegation is that there was an extra-marital relationship or affair. While this may mean an adulterous relationship, it is not always necessarily so. However, during the trial it became clear that the intention was to allege that the relationship was indeed adulterous. However, there is not sufficient evidence to prove that adultery has in fact taken place, although the indications are, in my view, that the relationship was probably not just the platonic relationship contended for by the defendant.

[42] Having stated this, it seems to me, however, that the plaintiff cannot rely upon this incident. The evidence shows that, after the three week absence the defendant returned to the common home and the marital bed in January 2011. This occurred after the defendant indicated to the plaintiff that she was willing to return to him on three conditions, namely that he does not raise his hands against her again, that he consults a psychologist and that he does not act violently or raise his voice against her again. The parties made some effort to work through their problems with the help of a psychologist, Dr Whittaker. The plaintiff was advised to deal with his anger and emotions, to which he agreed. He complained about the defendant’s alleged alcohol problem and that she was showing him no love. After a few sessions he had the impression that the counselling was bringing no change to the defendant’s behaviour. He testified that the defendant insisted on following her own rules. The counselling was stopped.

[43] In spite of this, the parties continued their efforts to heal their marriage.They embraced the opportunity to go on a trip together with the children to Zambia in a collective attempt to continue improving their relationship. The evidence shows that matters went well for some time, at least until about April 2011. The plaintiff testified that they last had sexual relations during May 2011 after which the defendant left the common bedroom on about 13/14 May 2011. The incident which directly precipitated this departure was the incident with the defendant’s two colleagues who were put out of the house by the plaintiff on about 13 May 2011.

[44] As I see it, the plaintiff was prepared to take the defendant back and they resumed the marital relationship in full. By resuming normal marital relations in this way the plaintiff condoned the adultery he suspected that the defendant had committed and about which he was confident that she was lying. (See Hahlo, The South African Law of Husband and Wife, (4th ed) at p374-5). Even if the plaintiff’s case is that the defendant maliciously deserted him in a constructive manner by entering into this extra-marital relationship, the evidence shows that she offered to return, which he accepted and the marriage continued for over four months in relative harmony until two incidents occurred, for which, it seems to me, the plaintiff should bear the guilt.(I shall deal with these two incidents at a later stage when I consider the defendant’s counterclaim. For purposes of identification I merely refer to these as the grandfather’s 80th birthday and the day the plaintiff chased the defendant’s colleagues from the matrimonial home.) In these circumstances it seems to me that the plaintiff’s right to a divorce based on the defendant’s relationship with SE falls away (see Hahlo, supra, p404-405).

The defendant’s amended counterclaim

The plaintiff’s adultery

[45] I now turn to the defendant’s amended counterclaim. It is convenient to first consider the claims of adultery. As stated before, the first claim is that the plaintiff was engaged in an adulterous relationship with a certain woman since May 2011, but that the defendant only found this out in November 2011. The plaintiff admits the adulterous relationship for the first time in his plea to the amended counterclaim. He denies, however, that the relationship started in May 2011. He alleges that he entered into the relationship around October 2011. Although he mentions that the Court should condone this adultery ‘for the reasons as set out in the particulars of claim’ he initially did not pray for such condonation.It is only after the Court had pointed this out on several occasions that a belated notice of amendment of the particulars of claim was filed to which the defendant did not object. As none of the parties had served the pleadings on the third party involved, her identity may not be disclosed, hence I refer to her as “X”. The defendant testified that she found out about this relationship, which the plaintiff admitted to her, in November 2011 when she read certain messages on the plaintiff’s cell phone.The defendant did not explain on what basis she alleges that the relationship already commenced in May 2011 and there is no other admissible evidence on record which supports the defendant’s allegation.In the circumstances the plaintiff’s version that the relationship commenced in October 2011 must be accepted.

[46] The defendant’s evidence about the second claim of adultery is that she discovered certain written messages on the plaintiff’s cell phone which indicate that the plaintiff had been involved in another adulterous relationship with a woman named ND and that the relationship was continuing.The plaintiff admitted in evidence that he and ND had ‘feelings for each other’, but that ‘nothing has happened.’ He denies an adulterous relationship. The plaintiff was confronted during cross-examination with the content of one message dated 11 March 2012, which the plaintiff admitted was a message he wrote to ND. In this message he mentions his ardent desire for her and that he misses her in sexually explicit terms. While this message certainly does convey that they have engaged in erotic conduct, it does not necessarily convey that they had committed sexual intercourse. (See Cunningham v Cunningham 1952 (1) SA 167 (C)). As there is no other evidence of the circumstances in which the plaintiff and ND engaged in this conduct, it is not possible for this Court to make any inferences as to the probability of their having had sexual intercourse. I am, however, of the view that this conduct constitutes a ground for the defendant’s claim of constructive desertion. I also find that the plaintiff was not entirely honest about the degree of intimacy between him and ND.

[47] In regard to adultery Hahlo, supra, states the following at p :

Adultery on the plaintiff’s part, unless condoned or connived at by the defendant, is a complete defence to an action for divorce on the ground of malicious desertion.  This holds true not only where it was the adultery that caused the defendant to leave the plaintiff but also where the defendant, ignorant at the time of the adultery, left the plaintiff for other reasons, or where the adultery was committed by the plaintiff after the defendant’s departure.  For even where the defendant’s original desertion was not caused by it, the plaintiff’s adultery justifies the defendant in staying away.’

[48] The defendant never amended her plea to include the adultery by the plaintiff as a defence. She only relies on it as a ground for divorce in her amended counterclaim. However, in the light thereof that the adultery is admitted, it seems to me that the counterclaim should be upheld on this ground, unless the plaintiff’s prayer for condonation for his adultery is granted.In this regard the true position was set out in Peila v Peila 1972 (1) SA 399 (A) at 407D-F:

Though it is no doubt a convenient phrase to use, in speaking of the Court's discretion in matrimonial proceedings, that it may 'condone' a party's adultery - the word 'condonation' is also used in Rule 18 (8) of the Rules of Court - it is clear that a Court does not, in the exercise of its discretion, 'condone' - in any of the recognised senses of that word - a party's adultery. The adultery remains as a fact and it remains unlawful. Whatever the Court does, it does not overlook or treat as non-existent the adultery of the other spouse, and it does not extinguish a defence or cause of action based on such adultery. The Court merely weighs up the matrimonial misconduct of the one spouse against that of the other and decides whose conduct was the more blameworthy or caused the break-up of the marriage. It may then grant relief to a party even though that party has been guilty of adultery. But whether a Court would do so, would necessarily depend upon the peculiar facts of each case as determined at the trial.’

(This dictum was also applied in Valindi v Valindi 2009 (2) NR 504 (HC) at 514 para [21]).

[49] Before I consider whether the plaintiff’s adultery should be condoned, I should therefore consider the matrimonial misconduct of the one spouse against the other. In order to do this, I should look more closely at the other grounds for the defendant’s amended counterclaim.  In this regard I shall follow the numbering used in the pleadings.

Paragraph 2.1 – physical abuse of the defendant and her daughter

[50] The physical abuse relating to the defendant’s daughter relates to incidents during 2005 and 2009 when the plaintiff allegedly slapped her once and spurted water in her face. These incidents occurred very long ago and are not of major significance. I shall not spend more time on them.

[51] According to the defendant, the plaintiff hit and kicked her for the first time on 11 December 2010.On this day she hosted a ladies day at their home for some of her female colleagues. The day had been planned far in advance and as the function would be in the nature of a swimming pool party, she secured the plaintiff’s promise that he would not be at home so that her guests would feel comfortable moving about in their swimming attire with no men around. However, on the day he was at home for most of the day and disrupted the affair by calling her every 10 minutes to do something for him, like having to tell him that she loves him or having to put Vaseline on his lips.Eventually he left to spend the evening elsewhere. At about 21h00 the defendant’s guests left and she went to bed at 22h00. At about midnight the plaintiff returned, broke the security door with a pickaxe and then broke the glass of the front door to let himself in. The defendant thought that someone was breaking in and locked herself in the bedroom. He broke open the bedroom door. She locked herself into the bathroom, the door of which he also tried to open. When she finally opened the door, he hit her in the face, she fell down and he started kicking her. She ran into the street in only her underwear.  Realising this, she came back into the house to make an emergency call.  The plaintiff grabbed the house phone from her and was frantically looking for her cell phone.  He dragged her further into the house and kicked her. He was angry and drunk and wanted her to confess that she was going out with other men. He kept questioning her about this during the night until the next day when some relatives were called to discuss the matter and eventually, rather reluctantly it seems, they resolved to make peace.

[52] The plaintiff’s version is the same in certain respects. He testified that he left earlier and said that the agreement was that the defendant would call him when the guests had left, but she did not do so. He waited for her to call and eventually returned home quite late to find that he was locked out and the defendant not answering the phone.  He even called the fire brigade to come and open the house, but before they came he succeeded in breaking open the security bars and the front door with a pickaxe, all of which seems somewhat extreme.  His explanation is that he was worried, anything could have happened, for example the defendant could have committed suicide. I really find this explanation hard to believe.  It is much more probable that he was indeed under the influence of alcohol and angry with the defendant because she had not called him, had locked him out and did not answer her phone.

[53] He also denied any assault. In light of the other evidence about his jealousy and the defendants’ evidence that he was looking for her phone and her evidence about him pestering her afterwards to confess, I rather think that he was suspicious and wanted to check for evidence of any involvement with another man.Bearing in mind that this incident happened shortly a few days before the incident with SE, perhaps he had some reason to be suspicious. When he finally succeeded in gaining access to the bathroom, I think it more probable than not that he indeed assaulted the defendant. Although the full details of this event were not put to the plaintiff while he was being cross-examined, but emerged during the defendant’s evidence-in-chief, I think the plaintiff had opportunity to deal with the most important of them.

[54] I am, apart from the probabilities, inclined to believe the defendant that she was indeed assaulted. She made a point in her testimony to emphasize that it was on this occasion that the plaintiff assaulted her for the first time and that she still bears the marks of the kicks on her body. If she wanted to lie about this, there were plenty of other incidents to which she could have intermingled fiction with fact, yet she did not do so. The inherent probabilities also favour her version. Furthermore, it is common cause that the ladies day was held only a few days before the incident with SE, where after she left the common home for three weeks, just to return upon condition that the plaintiff does not assault her again, act violently again and undergoes psychological therapy for his anger.  This evidence the plaintiff did not dispute.  This indicates, to my mind that there was truth in the factual basis for the conditions she set.  I also think it more probable than not that she would have set conditions about recent and/or repeated behaviour rather than about something that never happened, or that happened a long time before.

[55] If the plaintiff did not intend to drive her away by his behaviour on that night, he must have understood that, if the conditions were not adhered to, he ran the risk of breaking up the marriage.

[56] It is against this background that two further incidents should be assessed. The first is an incident which occurred when the parties attended upon the traditional homestead of the defendant’s relatives on the occasion of her grandfather’s 80th birthday in April 2011. She testified that she and the plaintiff travelled there by car. On the way the plaintiff made a point of asking whether she would be giving him attention while they were visiting her family. She was very surprised as they had been in frequent contact during the time before while the plaintiff was working in Zambia and they had also gone together on the Zambian trip. She pointed this out to him as well as that they had no major problems to give him reason to be concerned about receiving attention from her. While they were moving about greeting their elders at the village, he again called her aside to ask why she was not giving him attention. She replied that she did not know what he was talking about as they were together all the time.  He became angry and drove off into the direction from which they had come. She started walking towards her mother’s homestead. The plaintiff turned the vehicle around and came driving alongside her. He said that she was very hard headed and that he was tired of her nonsense. They both came to a standstill. She asked whether he intended leaving her there when he drove off earlier, to which he answered affirmatively. She then took the key from the ignition and said that he would not be leaving her at the village.He got out of the vehicle and slapped her. She started running back towards her grandfather’s homestead. The plaintiff followed her, got hold of her and started to punch her while they were lying on the ground. She screamed and family members came to assist. They were separated, but the plaintiff kept trying to get hold of her purse and the key. Eventually the plaintiff was taken to one homestead and the defendant to another to calm down, as she was hysterical.  The next morning her mother spoke to both of them to try to reconcile them. They agreed to be on speaking terms because they did not want to spoil the birthday party.

[57] The defendant mentioned this incident for the first time during her evidence-in-chief.  No details regarding this incident were put to the plaintiff during cross-examination. Counsel for the plaintiff’s stance was that, for this reason, the defendant could not rely on this evidence.  The plaintiff also did not deny any of this evidence during cross-examination. In my view the onus was on the defendant to prove this incident. As the plaintiff did not touch upon this incident during his case, it would have been open to him to present rebutting evidence on this issue. This he did not do. As such the defendant’s evidence stands.

[58] In any event, when the defendant’s brother AK testified about the same incident, he corroborated her that the defendant was lying on the ground with the plaintiff on top of her, beating her. This version was not pertinently denied on behalf of the plaintiff during cross-examination.It was only put to AK that he arrived a day later than the parties because of car problems. The implication is that he could not have witnessed the event. This AK adamantly denied and added that he was second in command of all the arrangements and that there was no way that he could arrive a day late. AK generally impressed me as a witness. He appeared to give his evidence in an objective manner and I am inclined to believe him.

[59] Shortly after this incident, on 13 May 2011 the plaintiff telephoned the defendant to come over to his new place of employment to have look at his office. She could not do so because she had an emergency at work which required her attention. When she left work at about 19h00, two of her colleagues, EK (male) and GU (female), asked for a lift because there were no taxis available at that time. They drove to Game to buy a pizza for the defendant’s daughter who was at home and from there they drove to her home. The arrangement was that GU’s boyfriend would shortly pick her and EK up from there. They all arrived at the parties’ home at about 19h30, which was the same time that the plaintiff also arrived with their son in the car.

[60] Once all were inside, the plaintiff called the defendant into the bedroom and asked what her colleagues were doing there. She replied that they were waiting for G’s boyfriend who would be arriving soon. The plaintiff was evidently not satisfied with this explanation, because he went to the TV room where he slapped EK in the face and pushed him outside the house and the main gate into the street. There he pushed EK who fell on his hands and knees. In the meantime the defendant’s daughter, who was witnessing the whole incident, had burst into tears and was crying and calling the defendant, who then came outside to try to contain the plaintiff. However, he was picking up stones in the street to throw at the defendant, who then went inside to call her brother. The plaintiff then returned to the house and started pushing GU outside as well by roughly pushing her against her head. He then locked the defendant inside the house. Shortly after GU’s boyfriend arrived and found her in the street, crying. When the plaintiff saw the boyfriend’s car, he went outside and started kicking the car’s tyres. Meanwhile defendant’s brother AK had also arrived. According to AK, the plaintiff also kicked the car door and wanted to know why they are looking at his house and told them to leave. The result was that GU’s boy friend took a base ball bat from the vehicle and brandishing this, chased the plaintiff around the car until he left.

[62] AK asked the plaintiff to also call a relative so that the matter could be sorted out.  No relative was available, but BK’s younger brother, RK, arrived. He was drunk and started to assault the defendant by hitting her in the face with his fist while the plaintiff did nothing to protect the defendant. The defendant was hurt and swollen in the face. She later laid a charge of assault against RK, who pleaded guilty. Her colleague ER also laid a charge against the plaintiff, but nothing came of it and ER eventually did not pursue the matter any further.

[63] The next day the defendant moved out of the common bedroom because she found the plaintiff’s behaviour intolerable. Since then their relationship never really improved and they never had sexual relations again. AK also removed the defendant’s daughter from the house because of the plaintiff’s violent behaviour. She only returned in November 2011.

[64] During cross-examination by counsel for the defendant, the plaintiff gave a version of this incident which does not accord in all respects with his later version. He said that he called her before his normal working day ended to say that he would be working late, to which she said that she was going home. He then decided not to work late after all. He went home and spent time with the children. The defendant actually only arrived with her colleagues at around 21h30. They were all drunk. He therefore ‘chased’ them out of the house as they were not a good example to the children. One of her colleagues then wanted to assault him. The defendant then called her family and he called his friend as there was a lot of commotion at the house. The defendant then assaulted his friend RK by beating him with a broom. A fight started between them, but RK did not assault the defendant.

[65] In the version that was put to the defendant, he agreed that the defendant and her colleagues arrived at about 19h30. He agreed that he called the defendant into the bedroom, but stated that he asked her to tell them to leave, as it was family time and they were all drunk. To this the defendant allegedly replied that she would not do so, her friends are staying. He then went into the lounge and told her colleagues to leave his house. They refused. It was not directly put to the defendant how the plaintiff succeeded in getting her colleagues out of the house, but it was suggested that if he pushed them, why did they not leave? The defendant denied his version, but could not conclusively state that her colleagues did not refuse to leave. She stated that she does not think they refused. As I understand it, she was not quite in the room with the plaintiff when he entered from the bedroom to confront them. Her tentative denial to my mind tends to indicate that she was not intent upon falsely making up a story to put the plaintiff in a bad light.

[66] The defendant called ER, GU and AK as witnesses on this incident. ER essentially confirmed the defendant’s testimony up to the stage that the plaintiff left him in the street. His version is that the plaintiff did not first ask him to leave. He added that the plaintiff kept saying that he should get out of his house, that the plaintiff also threw stones at him, that he ran away and found a taxi. He sustained an open wound on his hand, his jeans were torn, his knee was scabbed and his face was swollen and painful. It was put to him during cross-examination that the plaintiff had informed him and GU that he does not want them at his house that late and that they should leave, but that they refused.This was denied.

[67] Ordinarily I would agree with the argument submitted on behalf of the plaintiff that it is improbable for a person to just assault his wife’s guests and to put them out without any request to them personally that they should leave. The evidence in this case has shown the plaintiff to be a person who expressed his emotions, especially anger, in extreme ways on a number of occasions. I am not as confused as EK admitted he was at the plaintiff’s unexpected behaviour. In any event, I think that it is improbable that the defendant’s colleagues, who hardly knew the plaintiff, would have refused outright to comply with what was not an unreasonable request, bearing in mind that they were not on their own turf, so to speak. As GU testified, if he had only asked her to wait outside she would have done that. She also testified that she told him that it was not necessary to get physical with her, she would leave by herself, but he did not listen and pushed her even in the street.

[68] What is of note is that the fact that ER was assaulted was not denied. The only denial was that he was not dragged out of the house, but pushed, which ER conceded. No cross-examination was directed at the slapping or the stone throwing.

[69] ER made a good impression on me. He did not seem to be intent to merely cast the plaintiff in a bad light, but simply and concisely gave his evidence. In fact, it is clear that the event was quite traumatic to him, who seems like a sensitive, decent and mild mannered person. He clearly preferred not to be reminded of the humiliating manner in which he was removed from the parties’ house. I accept his evidence without reservation.

[70] GU, who also testified about other aspects of the defendant’s case, was clearly biased in favour of the defendant with whom she is also good friends. She knew much about the case and the evidence that had been tendered at various stages. Clearly the defendant had been discussing her personal affairs and the case with her. She made many assumptions in her testimony and tended to run away with herself, so to speak. She was in several respects not a satisfactory witness.Nevertheless, I did not have the impression that she was deliberately untruthful. As far as the incident on 13 May is concerned, her evidence seems truthful and is supported by that of ER and AK in all material respects.She also stated that the plaintiff did not first ask them to leave. She said that if he had done so she would have complied because they had no right to impose themselves on him.

[71] To sum up, it is clear that, after this incident the defendant, who was hugely embarrassed by the plaintiff’s gross behaviour, and disillusioned by his failure to protect her while being assaulted by his friend in their home, had had enough and moved out of the common bedroom. The plaintiff had, by his conduct on 13 May and at her grandfather’s birthday celebrations, clearly taken the risk that she would leave him by ending full marital co-habitation.

Paragraph 2.2 and paragraph 2.6 – the plaintiff obtained ‘false’ protection orders against the defendant

[72] What the defendants meant by ‘false’ is that the applications for these orders were based on false grounds. The plaintiff disputes that the grounds were false. I have already dealt with some aspects of the evidence about the applications and the orders made. The evidence by both parties is unclear and unsatisfactory in many respects. It is not possible for me to properly assess these allegations as a proper evidentiary basis was not really laid. In the circumstances my finding is that these allegations were not proved on a balance of probabilities.

Paragraph 2.3 – the plaintiff is excessively jealous of the defendant

[73] The defendant testified that one of the major causes of problems in the marriage was the excessive jealousy displayed by the plaintiff. Even before the marriage when she moved to Windhoek, the plaintiff insisted that all calls to her cell phone be diverted to his phone. Whenever a male person called, including her colleagues, he would interrogate them about the reason why they were calling her. This caused her embarrassment, especially at work and she ended this arrangement.

[74] The defendant cited several examples of the plaintiff’s unreasonably extreme jealousy by giving details of specific incidents.  All these incidents concerned situations where some man was either paying attention to the defendant, or paid her a compliment or flirted with her in some way. There is no evidence that the defendant was deliberately elicited the attention or was playing along. For example, he regularly read the messages on her cell phone, as I understand it, without her permission. When during 2008 he saw a message on her cell phone from a certain former colleague (called N) which stated that it was good to see her again after some time, he became very angry. He insisted that the defendant should take him to another colleague’s house who knew where N was staying. From there she understood that the plaintiff and this colleague went to N’s house to confront him. What happened further is hearsay. The plaintiff then reported the matter to N’s human resources manager and demanded that he should be dismissed because he was harassing his wife. This again caused much embarrassment to the defendant, who holds a senior position and who is held in high esteem by her employer and colleagues. The defendant’s version is that the message was more romantic in nature than the defendant testified, which she denied, and that he did not report the matter to the employer. However, when the defendant testified, it was not denied that the plaintiff had complained to the employer’s human resources manager.

[75] Another incident occurred during 2009 at a family fun day organised by her employer. A strange man paid her a compliment to which the plaintiff took exception. The plaintiff overreacted and pushed this man around. Eventually other people had to separate the plaintiff from this man. The plaintiff’s version is that the stranger was drunk and pestering the defendant, which was denied.

[76] The defendant, corroborated by her brother AK, also testified about an incident in May 2010 when the parties attended a family gathering where funeral arrangements were being made for a relative who had passed away. At the meeting a certain man who the plaintiff did not know, but who was actually a relative of the defendant’s brother AK, invited her to sit on his lap and pulled her towards him. She declined and went to sit next to the plaintiff. The plaintiff started complaining about the man and regardless of explanations that the man did not know that the defendant was married, assaulted the man by throwing a full bottle of wine at him. Matters escalated and the man had to be kept away from the plaintiff who took ages to calm down. The defendant’s family was very upset with the plaintiff for causing an embarrassment at such an occasion. The plaintiff stated he actually threw an empty glass at the man. Regardless of the object which was used, I agree that his behaviour was quite excessive and unacceptable. During testimony the plaintiff gave an absurd reason for his behaviour, stating that women are assaulted and raped and he wanted to defend his wife. Clearly she was in no danger.

[77] The defendant testified that the plaintiff was obsessive. He would pester her to know what men like her or want her, and when she told him, he would confront the man the next time he encountered him.Later she did not want to mention anything about a male friend or colleague for fear that the plaintiff would accost the person or embarrass her further.

[78] The plaintiff denied being jealous at all. He pointed to the fact that he spent much money on her so that she could dress and groom herself well to look beautiful and so that she could drive a smart car. He questioned why he would do that if he was jealous. However, it seems to me that all this was fine as long as no one else paid attention to her but him and that he actually wanted to flatter himself by making his wife look good. All the incidents cited by the defendant to my mind indicate that the plaintiff was indeed excessively jealous and that he tended to react in extreme and obsessive ways when the green monster crossed his path. Although I accept that the plaintiff had reason to be jealous when he discovered the defendant’s relationship with SE, his behaviour that day also indicates extreme overreaction. Apart from the car chase which exasperated even his friend BK, this includes the plaintiff throwing away the defendant’s karate uniform, her national tracksuit, her karate certificate and gold medal because SE did karate with her. This evidence by the defendant was never disputed. I have no doubt that excessive jealousy frequently fuelled his anger and led him to behave in many instances in a way which can only be called an embarrassing spectacle.

Paragraph 2.4 – falsely accusing defendant of extra-marital affair with another man

[79] These accusations relate to the relationship with SE. I have already dealt with this aspect. The defendant herself fuelled the plaintiff’s suspicions by her dishonest behaviour. While it is not possible to say exactly what the nature of this relationship was, it is clear that it was not innocent.I do not think that the plaintiff can be blamed for his accusations at the time.  Even if it could be said that the accusations went too far, I do not think they were calculated to unlawfully put an end to the marriage.

Paragraph 2.5 – verbal denigration of the defendant in the presence of the minor child, family and colleagues

[80] Upon request by the plaintiff the defendant provided further particulars regarding these allegations. The admissible evidence on record does not deal with these allegations as amplified by the further particulars. It is therefore not proved.

Paragraph 2.6 – emotional abuse

[81] The defendant gave evidence about some of the incidents mentioned in further particulars provided. These include the plaintiff’s behaviour on the day of the ladies pool party by demanding her constant attention; his pestering that night that she should confess going out with other men; his boasting that there was an executive lady ready to move in with him, his locking her out at night and forcing her to sleep in her car; the throwing away of her karate things; and making a false application for a protection order in June 2011. I have dealt with these aspects before in the judgment. Subject to any reservations and findings about the evidence already expressed, it seems to me that this behaviour did constitute emotional abuse. The plaintiff’s conduct in this respect mainly formed part and parcel of the angry and extreme behaviour described above. I do not think that the defendant condoned this abuse when she moved back to the common home during January 2011. Any condonation was clearly conditional upon his behaviour changing for the better in the long term, which did not occur.

Final assessment of the parties’ claims

[82] As I indicated before, I left adjudication of paragraph of the plaintiff’s claim until I have considered the evidence produced by the defendant in defence of this claim, alternatively in support of her claim against the plaintiff. As is evident from the discussion of this evidence, I am of the view that the plaintiff failed to prove that the defendant unlawfully left the common bedroom with the malicious and fixed intent to end the marriage. Indeed, in my view she succeeded in proving that it was the plaintiff that drove her to this action by his unlawful conduct maliciously aimed at ending the marriage.

[83] The plaintiff does, to my mind, have a case against the defendant based on paragraph 7.3 of his amended particulars of claim. The question now arises whether he should be allowed to succeed on this claim in spite of his adultery.

[84] The main considerations which ordinarily play a role in the exercise of a court’s discretion to condone a plaintiff’s adultery are discussed as follows in Hahlo, supra, at 370-371:

The two main considerations which will influence the court in deciding whether the plaintiff’s adultery should be condoned are, first, the respective blameworthiness if the parties; secondly, ‘the interest of the community at large, to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down’.

Under the first heading, the court will consider whether the moral guilt of the spouses is so disparate that the plaintiff cannot be said to be in equal guilt with the defendant (the so-called ‘comparative rectitude’ test, as it is called in America.) Under the second one, factors such as the interests of the children of the marriage, the possibility of reconciliation between the spouses, and the interests of the plaintiff and his paramour, with special regard to the prospect of their marrying respectably if the marriage between the plaintiff and the defendant is dissolved, will be taken into account.

The court is in no way fettered in the exercise of its discretion.’

[85] To the factors as mentioned by Hahlo may be added the interests of any children born from the adulterous relationship who may be legitimized if a plaintiff is permitted to marry his or her lover. (See Ex parte F 1962 (1) SA 48 (SR) at 49E-F;H).

[86] Having considered the all the evidence it is clear to my mind that, although both parties have succeeded in proving some parts of the claims, the bulk of the blameworthy conduct must squarely be placed on the plaintiff’s shoulders. Under the first heading mentioned by Hahlo the plaintiff therefore fails.

[87] The plaintiff prays for condonation for the adulterous relationship, saying that the marriage had broken down; that he was not getting any love and had not had sexual intercourse with the defendant for some time.In these circumstances he sought comfort and love from this relationship, which ended at the end of January or beginning of February 2012. However, in the amended particulars of claim he alleges that the relationship ended in April 2012. This discrepancy was not clarified, but the plaintiff did testify that N knew that he was also seeing this woman. He was involved with N at least during March 2012. From this I infer that the adulterous relationship was still continuing during March 2012.

[88] During argument Mr Small on behalf of the defendant submitted that the plaintiff’s adultery should not be condoned. He pointed to the fact that the adultery was committed while the defendant was still living in the common home (although not in the common bedroom).

[89] Although the defendant alleged that the adulterous relationship started in May 2011, there is no evidence that this is indeed so. I think the version of the plaintiff that it commenced in September 2011 must be accepted. Mr Small mentioned certain evidence of a photograph taken during January 2011 on the plaintiff’s cell phone which showed that adultery was involved. It is not clear that X was involved or how this fits in with the allegation that the relationship started in May 2011. This evidence is confusing. It was not presented in any detail and the photograph was also not handed in. I think this evidence must be disregarded.

[90] Mr Small also submitted that the plaintiff was not honest as he did not disclose the adultery in his summons and pray for condonation as required by rule 18(8). He only admitted the adultery in his plea filed on 21 May 2012 after the defendant alleged it in her amended counterclaim filed on 26 April 2012. Counsel referred to the view expressed by Hahlo, supra, at p371-372 that ‘Failure to make disclosure would presumably be a factor that might cause the court to refuse to exercise its discretion in the plaintiff’s favour.’

[91] However, it must be taken into consideration that the plaintiff already instituted action against the defendant on 8 July 2011. At that time the adulterous relationship had not yet commenced. Although the plaintiff had an ongoing duty in terms of the court rules to disclose the adultery by amending his particulars of claim, it is not clear on the evidence that the plaintiff was aware of this duty. This issue was not canvassed. When his plea to the amended counterclaim was filed, it included a paragraph which reads: ‘The Defendant pleads that Condonation should be granted for the aforesaid adulterous relationship for the reasons set out in his Particulars of Claim filed herewith, the contents whereof are incorporated by reference as if specifically repeated herein.’I assume the intention of the drafter was to refer to amended particulars of claim or to a notice to amend as there are no reasons for condonation pleaded in the particulars of claim. There was also no notice of amendment filed at that stage. This was the task of his lawyers. I do not think that the blame for this state of affairs should be laid at the plaintiff’s door in the sense that I should find that he personally and deliberately failed to disclose the adultery at the earliest reasonable opportunity.

[92] When taking into regard the considerations under the second heading mentioned by Hahlo there is in my view little in favour of granting condonation. The plaintiff is no longer involved with X and has expressed no intention of marrying her. There are no children to be legitimized. A refusal to condone the adultery will not have the effect of saving the marriage as the defendant will then succeed on her counterclaim.

[93] I am also not impressed by the reasons for condonation advanced by the plaintiff. He testified that the marriage had already broken down by the time he became involved with X. This may be so, but he played the major role in causing the breakdown. Also, he was still involved with X when he embarked on the next relationship with N with whom he was sexually intimate even though adultery as such could not be proved. The impression I have is that he was promiscuous with little regard for the fact that he was still married. Furthermore, the plaintiff did not testify in a forthright manner about the duration of the adulterous relationship and about the degree of intimacy with ND. In these circumstances I have difficulty in granting condonation for what was unlawful conduct even if it is taken into account that it probably was difficult and embarrassing to be honest in all respects. It was stated in Ex parte F (at 50E-F) that, ‘The exercise of the Court's discretion in these matters is not a bare formality. The Court must be satisfied that it is in the public interest that its discretion should be so exercised .....’.Bearing in mind all the circumstances it would, in my view, not be in the public interest to condone the plaintiff’s adultery.

[94] Although the defendant did not pray for a final order of divorce based on adultery in her counterclaim, Mr Small submitted that in the circumstances of this case a final order should be given without a restitution order. Counsel for the plaintiff raised no objection. Although this is unusual, I agree that, as the plaintiff admits the adultery, which the Court has not condoned, and as the parties have been living apart for about 20 months in a marriage which has broken down completely and as they clearly have no intention of resuming the marriage, a final order should be granted in favour of the defendant.

Custody and control

[95] Although the defendant succeeds with her claim for divorce, it of course does not necessarily follow that she should succeed in her claim for custody and control of the minor child. This matter must be determined on the basis of the best interests of the child.

[96] At this stage I wish to note that when the plaintiff instituted action against the defendant in July 2011, he did not claim custody and control, but pleaded that it is in the interests of the child that custody and control be awarded to the defendant, subject to his right of reasonable access. This remained the position through all the case management and pre-trial procedures. However, on the first day of the trial the plaintiff made an attempt to contest the issue of custody in spite of the pre-trial order and without applying for leave to amend his pleadings. After argument he instructed his counsel to continue on the basis of the pleadings. However, during the trial the parties agreed that it would be best to obtain a custody report by an expert in order to assist the Court in finally determining the matter. The plaintiff was also given leave to amend his particulars of claim by claiming custody and control.

[97] The parts of the plaintiff’s evidence which are relevant to the issue of custody may be summarized as follows. He throughout emphasized the special bond between him and his son. He made appoint of telling the Court that the child was conceived during the defendant’s visit to him in the USA. He was an involved father-to-be during the pregnancy and the first to hold his son after birth. He told the Court that he loves to cook and often prepared meals for the family, but more so because the defendant was very frequently absent from home in the evenings, often returning in the early hours of the morning usually under the influence of alcohol. He complained that the defendant was hardly there for the children and her frequent absences from home upset them. She seldom cooked for them and left this task to the plaintiff. She did not encourage good habits, like going to bed at the right time, not to watch television until late and to do homework.

[98] The plaintiff knows the daughter since she was three years old and raised her as his own. He testified about his love for both the children. He enjoys taking them out to treat them to a restaurant meal or to buy a toy. He loves cooking for them and spending time with them. Sometimes he helps prepare their lunch boxes for school. The defendant did not really take care of this and would require the daughter to do the lunches. The plaintiff said it was disheartening to look at what was inside them, for example unbuttered bread. He felt that the defendant did not really care. Often he would buy clothes for them or take the daughter to buy something for herself.

[99] He described how he taught the children to wash the dishes and to tidy up. He grew up in a home where all the children helped with household chores, including washing and ironing and he wanted to instil the same kind of work ethic and ability to care for themselves in the children. However, it seems that the defendant did not really care about this. Often she would not check if the washing was done and whether they had clean clothes for the coming school week. The plaintiff was the one who asked about that. He complained that she does not make the bed or irons. If she does iron, she does not do so properly, but irons on the bed.

[100] The plaintiff was supported to some extent by the evidence of his friend BK, who made a good impression on me and gave his evidence in a fair and balanced manner. He testified that the plaintiff took the leading role in running the household and was a loving father to both children. He also said that the plaintiff likes to cook and regularly prepared meals for the children while the defendant was absent. In his view the plaintiff did more than the normal father would do. He would often take the children out to restaurants, the movies or to sporting events. He took a keen interest in the defendant’s daughter’s education and regularly attended parent teacher meetings at school, while he never saw the defendant there. He often spoke to the defendant about the fact that she left the running of the household to the plaintiff, but her attitude was that it is her life and she follows her own rules.

[101] The plaintiff’s brother ST also confirmed that he has often found the plaintiff alone at home with the children or met theme when they were driving about without the defendant He testified that the plaintiff took good care of them and did more than is customarily expected of Herero speaking fathers.

[102] On one occasion he noticed that the children’s appearance was not neat and clean when they came from the defendant to visit the plaintiff. The defendant provided some evidence to counter this. In any event, evidence about appearance on the one occasion does not establish a pattern of neglect or poor care.

[103] The defendant readily admitted during her testimony that the plaintiff is a good parent and that there is a very good relationship between father and son. She just found it astonishing that the plaintiff did not make any effort to call or visit his son during the period August – November 2011 when she and the son were staying at her brother’s house after she was forced to leave the matrimonial home because of the protection order. He also did not pay any maintenance. Although the plaintiff testified that he loved her daughter as his own, he made no effort to call or visit her during the period May – November 2011. From May – September 2011 the plaintiff also did not visit his son after the defendant was put out of the marital home the last time. She stated that the plaintiff only took the son to stay with him for the home visit by Dr Gonzo. The visit lasted three weeks. She testified that the plaintiff invited both children to visit him during the December 2012 school holiday as Dr Gonzo was of the view that it would be beneficial to also include the daughter. She then visited for two weeks and the boy visited the plaintiff for the whole holiday. The defendant confirmed that there is indeed a very close relationship between the son and the daughter. Since January 2013 the plaintiff did not see the boy for about two months.

[104] The defendant seemed to admit that she did not cook much, although she sometimes did and the plaintiff complimented her food. She rather employed someone to do the cooking, cleaning and ironing. Her brother AK, who she called as a witness, confirmed that the housekeeping, especially the ironing, was an issue between the parties which led to some arguments and dissatisfaction.

[105] She described her relationship with her son as very loving and pointed out that she had to be a mother and father to the children for many months because the plaintiff did not take them for visits. She stated that when they had to live with her family the children had to sleep on the floor, which made them miserable. She denied being an irresponsible mother and said that she feeds and clothes them and takes good care of them. When it was put to her that her daughter’s scholastic performance has suffered because of her poor parenting, she denied this. She acknowledged that the daughter has psychological and learning problems, but that she has been undergoing remedial training and receiving expert assistance to improve her performance. The plaintiff did not deny this.

[106] Dr E A Gonzo, a clinical psychologist, prepared two reports which were most helpful in many respects. The first report, dated 9 October 2012, deals with the circumstances of the parties and focuses mainly on the minor child, but also includes some details about the defendant’s minor daughter. At the time the report was drawn up the parties’ son was 5 years and 4 months old. The report notes that both children were exposed to the constant conflicts and arguments between the parents and also witnessed physical fights between them. They witnessed their mother being ordered on several occasions by the police to leave the common home as a result of the plaintiff having obtained a protection order against her; and the emotional breakdown of both parents a times. The children were disrupted by their having to move from the house, as the defendant refused to leave them behind.

[107] After the last occasion they moved into a two bedroom house which the defendant shares with a live-in nanny and a dog. As the nanny occupies the one bedroom, they all sleep in the other bedroom. I pause to note that this set up is certainly not ideal, but I assume that it is an interim arrangement until the case if finalized and the estate divided. The report notes that Dr Gonzo visited the house once, that it is cramped, although clean and pleasant looking and that the home environment seemed cold, empty and gloomy. As I understand it, this is partly attributable to the fact that both the defendant and her son displayed signs of depression during the home visit, which signs were also observable during therapy sessions. The boy also appeared to be anxious, sad, moody and irritated during the visit.

[108] She also visited the marital home to meet with the plaintiff and his son on one occasion. During this visit the child was playing with what appeared to be an expensive toy car. He came across as very relaxed and obviously enjoying his gift. The plaintiff was cooking dinner for them. The atmosphere seemed relaxed homely calm and full of laughter. The boy seemed to be happy with his father and it was clear that they enjoyed a very close relationship. He was not as clingy as at his mother’s house.

[109] The home was neat and clean. It consists of two lounges, a dining area, study, kitchen, three bedrooms and an outside flat. The son’s room was decorated with his favourite cartoon.

[110] Dr Gonzo makes the, with respect, valid point in her report that the plaintiff was not exposed to the adjustments and stresses that come with having to move house and that the child was back in his old environment where he grew up. Although one has to bear in mind that the plaintiff had to re-furnish and decorate much of the house after the defendant left with most of the furniture, it seems to me that it was probably easier for the plaintiff to create a favourable impression in the circumstances.

[111] Dr Gonzo stated the following in her report:

From an external point of view (as observed during the house visits), he seemed to function very well on his own when in the comfort of his home (where the father resides), exhibiting traits of independence and maturity. However, he again was clingy, irritable and moody when observed with his mother at the house that they are renting with his mother, sister and nanny. It’s imperative that I highlight the fact that ..... [the child] appears and behave (sic) plus/minus two years younger than his age. The latter can be attributed to the trauma of his parent’s divorce which seems to have caused a regression in ‘age’ appropriate behaviour and emotions.’

From her observations and several tests done, Dr Gonzo concluded that the child has met the criteria for childhood depression and therefore for psychological trauma.

[112] She also states:

From my own observation it seems as though he is caught in the middle of his parents’ conflict. .... [The child] is not capable of taking either one or the other parent (sic) side and nor (sic) telling them that he feels guilty, fearful of losing them, needs acceptance and love as he does not want to disappoint either one of the parents. What is more, he is seen by his parents as mature, confident and an understanding child.

..... [He] has to live with the decisions his parents make for him about his life.His parents decided they can no longer stay together because their relationship has become impossible due to abuse suffered by both of them; he had little power to alter or influence the events that followed. This it seemed has led to him feeling insignificant and feeling helpless. The latter has led him to suffering from childhood depression.’

[113] She stated that she can safely say that the child is attached to both his parents, although it seemed as if his principal attachment figure is his father ‘if we are to accept that his wife went into hospital two weeks after giving birth to him and his father become (sic) his primary caregiver early in his life.’ She later states:

The attachment hierarchy may be determined by the following set of factors: 1) how much time he spend (sic) with each caretaker, 2) the quality of care each provide (sic), 3) each caretaker’s emotional investment in the child and 4) the repeated presence across time of the attachment figure in the child’s life.

It is with the above-said in mind that it was founds that due to consistent conflict between the parents, the set of factors of the attachment hierarchy could not be exercised by the father who is one of the prominent attachment figures in his life. When parent do not live in one home as a family unit, children optimally benefit from ongoing relationships with both parents who are supportive of the child’s dual attachment. The consequences of the disrupt (sic) child-parent relationship has led .... to [the child] seeming more relax (sic) with the father as opposed to being with his mother.

Relationships with parents are the foundation upon which children define themselves as adequate and develop the capacity to have meaningful and intimate relationships throughout their lives.  Children’s relationships with their mother and father are determined by the quantity and quality of care offered by each parent and the repeated presence across time of the parent in the child’s life.’

[114] Dr Gonzo recommends that the parties have shared legal and physical custody and that they develop a legally binding parenting plan which addresses a wide range of topics, including maintenance and dispute resolution. Alternatively she recommends that the child stays with his mother until the end of June 2013 and then with his father until the end of December 2013 with frequent visits during week-ends and holidays to the other parent. The parent with whom the child resides should be the primary physical custodian. The motivation for the recommendation that the child should at first continue residing with the defendant before moving to the plaintiff is that the defendant had the primary role as an attachment figure since she left the matrimonial home. Dr Gonzo warns that removing the child from the current residential home will worsen his emotional state as it will add to the cycle of changes he has been through already. However, she stresses the importance that the defendant provides frequent access to the plaintiff by allowing the child to stay with the plaintiff on weekends and holidays and when she has to travel.

[115] She further recommends that both parents be taught parenting skills to ‘help them create in their child secure attachment bonds that will enable him to have a healthy and normal development and provide him with the ability to value himself, and develop enduring and intimate relationships throughout his life.’

[116] Lastly she recommends that the parties and the child undergo psychotherapy to help with the verbalization of fear, anger, stress and depression.

[118] In her second report Dr Gonzo focuses on the suitability of the defendant to have custody of the minor child as this was questioned by the plaintiff in the light of what he alleged was her alcohol abuse and her neglect of the children by frequently socializing with her friends away from the marital home, returning only in the early hours of the morning and by not preparing proper meals and generally looking after them properly with the result that her daughter began to perform poorly at school. Dr Gonzo always found the children to be neat and clean. The defendant always brought them for consultations on time and was always concerned about their safety and well being.

[119] Dr Gonzo diagnosed the defendant to be suffering from major depression with anxiety, a clinical disorder which probably had much to do with the problems in the marriage and the divorce proceedings. As I have indicated before, she found no evidence that the defendant has an alcohol problem. She notes that the defendant has been the primary caregiver of her children since she moved from the marital home and during her visits to the defendant’s home and in all her interactions with the defendant and the children she found no evidence of neglect. She was of course not able to express any views about the plaintiff’s allegations regarding the defendant’s earlier conduct while the parties were still living together. She could not say if the defendant was still going out partying much at night, but noted that the defendant reported to her that she hardly goes out with friends and prefers to stay at home. On the assumption that this is something she used to enjoy doing before, her professed lack of interest in an activity she enjoyed before is entirely consistent with the profile of depression she displayed throughout the assessment period. In her view the defendant is fit to look after her children and eligible for custody and control.

[120] The impression I have based on all the evidence and from my observation of the parties in the witness box is that the plaintiff is a person who more easily shows emotional warmth, while the defendant seemed to be emotionally detached and more cerebral. However, the plaintiff also came across at times as arrogant, boastful and irritatingly demeaning and patronizing towards the defendant, especially regarding what he perceived to be her role as a wife and a mother.She seems to be more independent and has a mind of her own. Her work and career seem to be important to her. Domestic duties obviously appeal more to him than to her. I am sure he makes much better lunch boxes than she does. I am not surprised that his insistence on her ironing his clothes led to conflict.

[121] It is clear that both parties love the minor child very much and that the child is attached to both of them. I think the plaintiff makes a good father who is emotionally involved with and genuinely interested in his son. I accept the evidence that he takes good care of the boy when the latter is in his care and that the boy is nurtured and perhaps even spoiled a little. However, his long absences at times were not satisfactorily explained. I do take into regard, though, that the plaintiff testified that on Father’s Day 2012 and when the boy turned 5, as well as during the holidays a few weeks before the trial started the defendant did not allow him to take the child for a visit despite his requests. The defendant did not deny this evidence. I am nevertheless also satisfied that the defendant in her own way is also a good parent although I have the impression that the boy will have more fun and personal attention if he stays with his father. On the available evidence I am not persuaded that she neglects her children.

[122] One of Dr Gonzo’s recommendations is that the parties should be awarded joint custody. In this jurisdiction joint custody is sometimes awarded. In A v A 2011 (1)70 (HC) the following was said about the matter (at 74C-75G):

[12] Normally, custody of minor children is awarded after all circumstances are taken into account, namely after determining what is likely to be best for the child. Such circumstances involve the child's sex, age and health; his/her educational and religious needs; the social and financial position of its parents; the character of the parents; his or her temperament and past behaviour towards the child. (Hahlo supra at 453.) Furthermore, where the child has reached the age of discretion, his or her personal preferences have also to be taken into consideration and the court will consider which of the spouses will provide the best care, not only for the physical well-being of the child, but also for his or her moral, cultural and religious development. (Hahlo supra at 454 and the cases quoted therein.)

[13] Without going into detail, it is necessary to have a closer look at what the term 'custody and control' entails. It is namely the care and control of the minor's person. In short it means that the custodian parent has control over the minor's daily life and can decide all issues regarding the minor's education, training, religious upbringing, where the child might go or visit and with whom he or she might associate. (Hahlo supra at 456.) Furthermore, it includes the duty to provide adequate accommodation, food, clothing and medical services to the child. (LAWSA vol 16 para 160 at 189.) The custodian parent has possession of the minor child. (LAWSA supra para 161 at 190.)

[14] Joint custody of minor children has sometimes been awarded in South Africa, because it has been regarded in the exercise of the court's discretion to be in the best interest of such children. (Kastan v Kastan 1985 (3) SA 235 (C) at 236D.) However, joint custody has been refused in other cases. (Heimann v Heimann 1948 (4) SA 926 (W); Edwards v Edwards 1960 (2) SA 523 (N) at 524G.) In Edwards supra Jansen J expressly stated the following at 524 in respect of shared or joint custody of minor children:

'It is plain that an agreement of this nature should not be made an order of Court. In this regard I refer to the case of Heimann v Heimann 1948 (4) SA 926 (W), where Murray J refused to make a similar agreement in respect of custody, an order of Court. It seems to me a legal impossibility that the legal custody of a child could be shared equally between two individuals. The legal custody involves the privilege and responsibility of taking certain decisions in regard to, for example, the education of the child. It would seem that such a decision should appertain to a single individual. If the responsibility is shared between two individuals there is the continuing possibility of a deadlock arising over every triviality. Essentially, it would seem that an agreement in regard to the custody of the child after divorce cannot affect the legal custody as determined by common-law and not otherwise arranged by the Court.'

[15] The issue of joint custody has been frowned upon by our courts to say the least. With reference to several decisions which were also relied on, the author Hahlo stated the following at 462:

'As a child must know where its stands, the courts are loath to allow responsibility to be divided or to put the non-custodian spouse in a position where he can dispute or undermine the authority of the custodian parent. Accordingly, they will generally refuse accept an agreement under which the spouses agree to share custody or a young child is to spend alternate periods of approximately equal length with each parent. It is most undesirable that a child of tender years should be subject to these constant changes.'

[16] In our law malicious desertion must still be proved where adultery is not an issue. I find it difficult to comprehend that parties who demonstrate such animosity against each other that they cannot live together, and often fight each other in an opposed divorce litigation, can be in a position to decide jointly on issues involving the interest of minor children. It is the duty of the court as an upper guardian of the minor children to be vigilant is this regard. To award joint custody to both parents of minor children is to retain the position that they were in while the marriage still existed and the parents lived together. That cannot be the situation after the marriage broke up because of malicious desertion or even adultery of one of the parties. One of them has to have custody and control of the minor children. The only possible instance that I can see where joint custody might work is where the minor children are old and mature enough to decide for themselves and the parents have a mature and responsible relationship to be able to take responsible decisions in the interest of the minor children. Such situation would in my opinion be very rare. This matter supports that opinion. Only in exceptional circumstances, based on evidence, should joint custody of a minor be granted.’

[123] In general I respectfully agree with what is stated in the above-mentioned quotation except with the view expressed that the minor children should be old and mature enough to decide for themselves.I prefer not to lay this down as a necessary requirement. It often happens that parents divorce on amicable terms.They might be ideal candidates for joint custody even if the children are still too young to indicate any preferences.

[124] Although the plaintiff was during testimony in favour of the recommendation that joint custody by awarded, it was, in light of the requirement in A v A, supra, that the parties should have a mature and responsible relationship, readily conceded during argument by counsel on his behalf that joint custody is not feasible in this case because of the turbulent relationship between the parties and the negative effects of the litigation between them. This is also the stance of the defendant. I entirely agree with them.

[125] I am also not in favour of ordering that the child should reside for extended periods first with the one party and then with the other. The recommendations were made before the child was of school going age and while the court proceedings were still at an early stage. Although I am not aware whether he is due to start school during 2014, in which case he should reside with one parent, I am in any event of the view that he should not subjected to constant change at this age. I do agree, though, with Dr Gonzo that it is imperative that the child has regular contact and visits with the non-custodial parent. I intend setting out the terms of what the Court regards as reasonable access in Annexure “A” to the Court’s order. I agree with Dr Gonzo that the parties should undergo parent skills training to assist them in parenting their child, who has clearly suffered psychological trauma and hopefully playing a role in improving their son’s mental health. While I also agree that it would probably be helpful for the parties and their child to undergo psychotherapy, I am hesitant to make this part of the Court’s order. I leave this personal decision to the parties with the sincere hope that they will reflect about the harm that has already been caused and that they will resolve to act in the interests of their child’s wellbeing.  In this regard I note that the plaintiff indicated during his testimony that he is willing to do parental skills training and psychotherapy, which is encouraging and commendable.

[126] In my view both parents are fit and suitable to be granted custody and control of the child. However, the child is still very young. In my view it would be better to let him remain where he is, especially in view of the fact that the defendant has for quite some time now been the primary caregiver. I also think that it would not be good at this stage to separate him from his half-sister. As I have said, it is important that there is regular and consistent contact and visits with the plaintiff. I think it is in the child’s best interests that I accede to the plaintiff’s request that he be given the first option to take care of the child in case the defendant has to travel.

[127] Another factor that I take into consideration in awarding custody to the defendant is that the plaintiff never contested custody until the trial started. Then he abandoned it, just to raise it again at the end of his testimony. As the Court is the upper guardian of all children in its jurisdiction I considered it advisable to let the parties present evidence on this issue. While this was helpful, I must point out that the concerns raised by the plaintiff were not based on new evidence or new behaviour. His allegations concerned the defendant’s conduct before the trial started. Yet he was willing from the issue of summons to relinquish custody to her. Moreover, the allegations about her alcohol abuse seem to be greatly exaggerated. It would appear therefore that the plaintiff raised custody as an afterthought or perhaps with an ulterior motive and not so much because there were really grounds to be concerned about the child’s welfare should custody be awarded to the defendant.

Maintenance for the minor child

[128] During argument counsel for the defendant indicated that the defendant reduces her claim for maintenance for the minor child from N$5 000 to N$2 500 per month with an escalation of 10% per year. The plaintiff can clearly afford this amount as he offered to bear all financial burdens on his own should the child be awarded to him. However, if the custody is granted to the defendant, he is only willing to pay N$2 000 per month as maintenance, including school fees. In my view the educational costs should be dealt with separately and the parties should share these equally. As I understand it, the plaintiff at first offered to pay N$1 500 per month in maintenance and N$500 per month towards the schooling of the child. Although I take note that the defendant did not deal in detail with how her claim for maintenance is made up, it seems to me that the amount of N$2 500 claimed by her is reasonable for a child of that age bearing in mind the status of the parties. I further agree that all financial requirements relating to his education and excess medical payments should be shared equally between the parties.



The defendant’s claim for forfeiture of benefits arising from the marriage

[129] It is trite that a party who succeeds in an action for divorce is entitled to a general forfeiture order of any proprietary benefits derived from the marriage provided it is claimed in the pleadings.

[130] The defendant alleged in paragraph 6 of her amended counterclaim that the defendant contributed 90% in respect of labour, finances, service and skills towards covering the costs of expenses and assets of the common household, whereas the plaintiff only contributed 10%. She also alleged in paragraph 7 that the value of the joint estate at the time of the marriage was nil and that the joint estate has grown to bear a value of N$2,490 000. She further alleged in paragraph 8 that the plaintiff was unemployed for the period August 2005 to December 2006 and that she duly maintained him during this period. She alleged that it would be just and equitable that the Court forfeits the benefits arising from the marriage in community of property on a 90%/10% basis.

[131] The plaintiff denied these allegations in the pleadings and also during his testimony. He testified that he contributed more to the joint household than she did and gave some figures. He asked that the estate should be divided equally. His evidence is to the effect that he owned a house in Tauben Glen before the marriage.He sold this house and with its proceeds the parties bought their current home in Hochland Park. The defendant owns a house in Walvis Bay, which she has been renting out for her own benefit, but since the marriage this property has been in the joint estate. Both parties owned furniture and vehicles at the time of the marriage which became their joint property.

[132] The plaintiff testified that the period August 2005 to December 2006 was the time that he studied fulltime as already set out supra. He adamantly denied that the defendant had to maintain him. He told the Court that he had a scholarship to cover his studies. He took a study loan to assist with further expenses. He also worked part time while he studied. He was able to send money back home, in which he took obvious pride as a young and proud husband. The total amount involved was amount N$60 000, which was transferred to the defendant’s bank account. At that time the defendant was earning about N$13 000 per month after deductions. He bought a return plane ticket for the defendant to visit him in the USA and also treated her by taking her shopping and gave her spending money. Previously when he came home on holiday he brought a suitcase full of clothes for her and her daughter.

[133] During cross-examination most of this evidence was not denied, except that certain major monetary contributions by the defendant were canvassed. It was put to the plaintiff that at some stage he demanded that the defendant should repay about N$26 000 of the money he transferred from the USA. He denied that he ‘demanded’ the money, but indicated that there was a mutual understanding that the money be transferred to his bank account to cover the instalments for the house. This evidence was not denied.

[134] During evidence-in-chief the defendant did not deal pertinently with the allegations made in paragraphs 6 and 8 of her amended counterclaim. However, she testified about the house and vehicle which each party brought into the marriage. During cross-examination it became abundantly clear that, as a result of these assets and the parties’ furniture having become part of the joint estate upon marriage, the allegation that the value of the joint estate at the time of marriage was nil, is incorrect. The defendant’s explanation for making this allegation is not entirely clear, but counsel for the plaintiff appears to have accepted that she did not make the allegation in bad faith.

[135] It also became very clear that the ratio upon which she claimed forfeiture is completely inaccurate and that the allegation that she maintained the plaintiff during the period August 2005 to December 2006 is quite untrue. The defendant testified that she had given her counsel the correct instructions the previous day. Yet these matters were not addressed by way of amendments or by volunteering a correction under oath. This explanation also begs the question why such inaccurate allegations were made in the pleadings in the first place.In this respect the defendant did not make an impression of credibility on me.

[136] This being said, during the argument stage counsel on the defendant’s behalf adjusted the ratio alleged in the defendant’s counterclaim by submitting on the basis of certain figures that the forfeiture, to which the defendant is in law entitled, should be ordered on a 41:59 basis in favour of the defendant.  Although counsel for the plaintiff moved for division of the estate instead of forfeiture, he did not attack the ratio itself on which the defendant’s claim is based and I therefore adopt it. I therefore do not intend dealing any further with the testimony on the various individual contributions made by the parties towards to common household and the joint estate.

Order

[137] For the above reasons I made the following order on 13 December 2013:

1. The plaintiff’s claim is dismissed with costs.



2. In respect of the defendant’s counterclaim the Court grants judgment for the defendant as follows:



2.1 The bonds of the marriage between the parties are hereby dissolved.



2.2 The custody and control of the minor child, Arthur Tjivikua, born 18 June 2006, shall be awarded to the defendant, subject to the plaintiff’s right of reasonable access to him as per Annexure “A”.



2.3 The parties shall each by 13 November 2014 undergo a parenting skills training course certified by a psychologist registered in Namibia to be of an acceptable duration and standard and they shall each deliver proof under oath to this Court by 13 December 2014 that they have completed the course satisfactorily.



2.4 The defendant shall approach the plaintiff as a first option to take care of the minor child during any absence by her from the child’s home which absence exceeds 24 hours.



2.5 The plaintiff shall pay maintenance of N$2 500 per month in respect of the minor child, which amount shall escalate with 10% on 24 April every year.



2.6 The plaintiff shall pay 50% of the school fees in respect of the minor child, as well as in respect of the costs of prescribed tuition, extra-mural activities, books, stationery, school clothes and the costs of any tertiary education, including hostel fees or alternative accommodation (should the child show an aptitude therefor and make reasonable progress and in so far as such costs are not covered by study bursaries).



2.7 The plaintiff shall pay 50% of the excess medical aid payments in respect of the minor child.



2.8 The plaintiff shall forfeit the benefits of the marriage in community of property in the ratio 41:59 in favour of the defendant.



2.9 The plaintiff shall pay the defendant’s costs of suit.







____(signed on original)____________________

K van Niekerk

Judge



APPEARANCE



For the plaintiff: Adv T C Phatela

Instr. by Conradie & Damaseb



For the defendant:

Adv A J B Small

Instr. by Kristen & Co. Inc


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