Court name
High Court Main Division
Case name
Kafidi v Neputa
Media neutral citation
[2013] NAHCMD 278
Judge
Miller AJ













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: I
1866/2012








In the matter between:








EMILIA NDILEMEKE
KAFIDI
.........................................................................PLAINTIFF



and



ABNER JOHANNES NEPUTA
...................................................................DEFENDANT








Neutral citation:
Kafidi v Neputa I 1866/2012) [2013] NAHCMD 278 (08 October
2013)













Coram: MILLER AJ



Heard: 12 June
2013; 14 June 2013; 24 June 2013



Delivered: 08
October 2013








Flynote: Divorce
proceedings and forfeiture orders. Requirements for restated.








Summary: Plaintiff
sought a divorce based on defendant’s adultery. Order of
divorce granted. Plaintiff seeking both quantative and specific
forfeiture orders. The applicable legal principles and factual
requirements were restated.













Held that there was too
little evidence as to the value of the joint estate at the time of
the divorce and of the contributions made by each party during the
subsistence of the marriage. Orders refused.










ORDER





An order of divorce. An
order that the custody and control of the minor child Frans Neputa is
awarded to the plaintiff. A general order of forfeiture in favour of
the plaintiff. Costs of suit. The counterclaim is dismissed with
costs.










JUDGMENT










MILLER AJ :



[1] Following a marriage
in community of property concluded between the plaintiff and
defendant on 27 December 1980, the plaintiff on 6 July 2012
instituted divorce proceedings against the defendant. This after the
parties had already lived separate from one another for a period in
excess of ten years.








[2] It is common cause
that the defendant become engaged in an adulterous relationship with
one MN from which relationship two children were born. The defendant
in a counterclaim alleges that this affair with MN only started at a
time after he had left the common home. The evidence of the plaintiff
and her son, Philemon, is to the effect that the relationship with MN
had started much earlier and in fact at a time when the plaintiff and
the defendant were still living together. The veracity of their
testimony in this regard is bolstered by the strange behavior of the
defendant at that time.








[3] For instance the
defendant used to return home late at night, not through the front
entrance, but rather surreptitiously climbing over the wall of the
back fence. There is further testimony from Philemon that MN was a
passenger in the defendant’s car long before the plaintiff and
the defendant separated. On these aspects the evidence of the
defendant is not persuasive and I have no difficulty in accepting the
evidence of the plaintiff and Philemon on this issue. Given the
admitted adultery, the probabilities are that the adulterous affair
had started when the plaintiff and the defendant were still
cohabiting. I reject the evidence of the defendant on this score. The
consequence is that I am not prepared to condone the defendant’s
adultery as prayed in the counterclaim.








[4] It follows that the
plaintiff is entitled to an order for divorce.








[5] One child born from
the marriage is still a minor who lives with the plaintiff. The
plaintiff seeks an order awarding her the custody of that child. She
seeks no maintenance for the child. This aspect remains unopposed and
I will make an appropriate order in due course.








[6] The remaining issue
is what is to be done to the joint estate.








[7] In that regard the
plaintiff seeks the following orders:









  1. Forfeiture by the
    defendant of 80% of the benefits of the joint estate, in other words
    a quantitive forfeiture order.



  2. Forfeiture of the
    property situated at Erf 7682, Katutura, in other words a specific
    forfeiture order.









The authorities in
relation to forfeiture orders are to be found in the judgment of
Heathcote AJ in C. v. C; L. v L 2012 (1) NR 37.








[8] From that the
following principles emerge.









  1. When a party to a
    marriage in community of property commits adultery or maliciously
    deserts his/her spouse the Court has no discretion and must make a
    general forfeiture order if so requested.



  2. When quantified or
    specific forfeiture orders are requested, the position is different.









In these cases evidence
is required as to the value of the joint estate at the date of the
divorce. Also evidence must be let about all the contribution of both
the parties as well as the relevant circumstances.








[9] Admittedly there is
some evidence regarding the value of the parts of the estate as is
the case with the property in respect of which the specific
forfeiture order is sought. Likewise there is some evidence regarding
some contributions made at some stages during the course of the
marriage. The picture remains far from complete, however. In addition
some of the evidence regarding contributions made are estimates with
little or no factual material underpin them.








[10] I find myself in the
same position as van Niekerk J in Cloete v Griegor I
1298/2009 [2012] NAHCD 18 in which she stated








“…due to the
efflux of time, there is too little evidence to determine the value
of the estate today and in particular to determine the contributions
of each party to the joint estate during the subsistence of the
marriage”.








[11] It follows that the
quantitive and specific forfeiture order sought can not be granted.








[12] I am not prepared to
order a division of the joint estate and I will instead grant a
general order of forfeiture








[13] In the result I make
the following orders:









  1. An order of divorce.



  2. An order that the
    custody and control of the minor child Frans Neputa is awarded to
    the plaintiff.



  3. A general order of
    forfeiture in favour of the plaintiff.



  4. Costs of suit.



  5. The counterclaim is
    dismissed with costs.





























----------------------------------



P J MILLER



Judge


















APPEARANCES








PLAINTIFF: J DIEDERICKS



Of Diedericks
Incorporated













DEFENDANT: L SHIKALE



Of Shikale &
Associates