Court name
High Court Main Division
Case name
Kagwe v Kagwe
Media neutral citation
[2013] NAHCMD 71
Judge
Geier J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 1459/2011








In the matter between:








SAKEUS KAGWE
.........................................................................................PLAINTIFF



and



VIKTORIA KAGWE
...................................................................................DEFENDANT








Neutral citation:
Kagwe v Kagwe (I 1459/2011) [2013] NAHCMD 71 (30 January
2013)








Coram: GEIER J



Heard: 28 &
29 January 2013



Delivered: 30
January 2013








Flynote: Action
for divorce - on grounds of constructive desertion - Plaintiff must
prove three aspects in the preliminary proceedings for a restitution
order – first - that the court has jurisdiction – second
- that there has been and still is a marriage; - and third - that
there has been malicious desertion on the part of the defendant - The
onus of proving both the factum of desertion and the
animus
deserendi
rests throughout upon the
plaintiff - The restitution order will not be made if after issue of
summons the defendant returns or offers to return to the plaintiff,
for in that case there is no longer desertion –








In order to discharge the
onus plaintiff must prove conduct which one must not expect in the
ordinary course of marriage’ – more particularly such ‘
… conduct … need not to have amounted to a matrimonial
offence such as cruelty or adultery but … it must exceed in
gravity such behaviour vexatious and trying though it maybe, as every
spouse bargains to endure when accepting the other ‘for better
or for worse’. The ordinary wear and tear of conjugal life does
not itself suffice’ -








Action
for divorce – Plaintiff’s self- admitted adultery –
Condonation therefore -
Two
main considerations will influence the court in deciding whether the
plaintiff’s adultery should be condoned - They are –firstly,

the respective blame-worthiness of
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 union
which has utterly broken down - The court is in no way fettered in
the exercise of its discretion.








Summary: The
plaintiff had sued the defendant for divorce - The action was
defended and the defendant filed a plea and counterclaim - The
counterclaim was dismissed as a result of the defendant’s
non-compliance with an order compelling the defendant to respond to a
request for further particulars - The matter proceeded thereafter to
trial - Main question which arose was whether the plaintiff had
succeeded in discharging his onus of proving constructive desertion
which would result in the granting of a restitution order - The
secondary question which arose was whether the court should condone
the plaintiff’s adultery.








Held: that
plaintiff had succeeded in discharging his overall onus in respect of
some of the relied upon grounds of divorce.








Held: that on
the aspect of the respective blameworthiness between the parties no
evidence had been placed on the record which explained why and in
what circumstances the adultery had been committed. What however
plays an important part in this regard is that the defendant herself,

as the affected party, has
belatedly condoned the plaintiff’s conduct.








Held:
that it was an important consideration that where there were no
reasonable prospects for the resumption of a joint and further
harmonious married life it could not be in the interest of public
policy to insist on the maintenance of a union which only one partner
seemingly wishes to perpetuate and the other not.








Held: that in the
circumstances the condonation sought should be granted.










ORDER










The Court grants judgment
to the plaintiff for an order for the restitution of conjugal rights
and orders the defendant to return or receive the plaintiff on or
before the 11th day of March 2013, failing which to show
cause, if any, to this court on the 9th day of April 2013
at 08h30 why:









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



  2. Each party should not
    bear its own costs.











JUDGMENT










GEIER J:








[1] The
plaintiff has sued the defendant for divorce.








[2]
The action was defended and the defendant duly filed a plea and
counterclaim. This counterclaim was however dismissed as a result of
the defendant’s non-compliance with an order compelling the
defendant to respond to a request for further particulars.








[3] The matter proceeded
thereafter nevertheless to trial.








[4] At the commencement
thereof the parties’ legal practitioners indicated to the court
that they were agreed that the matter would proceed only on the
question of desertion as the issues of custody, maintenance and the
proprietary consequences of the marriage had been agreed upon.








[5] It emerged further
from the pleadings and the case management records that it was common
cause between the parties that they were domiciled in Namibia, that
they were married to each other on 29 November 1997, at Ondangwa, out
of community of property, by virtue of the Native Administration
Proclamation 15 of 1928, which marriage still subsists, and that
three minor children were born of the marriage.








[6] The central
allegations around which the trial thus turned were pleaded by the
plaintiff as follows:








6.
During the subsistence of the marriage between the parties, the
Defendant with the fixed and determined intention to terminate the
marital relationship between the parties wrongfully and maliciously
engaged in the following conduct:








6.1.
She shows no love and/or affection towards Plaintiff;



6.2.
She refuses Plaintiff his marital privileges;



6.3.
She physically abuses Plaintiff;



6.4.
She quarrels and fights with Plaintiff in front of the minor
children;



6.5.
She refuses to go with Plaintiff to the traditional common home;



6.6.
She fails and/or refuses to assist Plaintiff with the household
duties








7.
By reasons of the Defendant’s unlawful conduct as aforesaid
continued cohabitation with the Defendant has become dangerous and/or
intolerable for Plaintiff as a result he left the common home on or
about 16 April 2011.








10.
During or about February 2011 the Plaintiff committed adultery with a
certain third party for which adultery the Plaintiff humbly intends
seeking condonation trom the above Honourable Court.’








[7] Flowing from these
allegations made in the particulars of claim the plaintiff then
sought an order condoning his adultery with a third person as well as
a restitution order failing which a decree of divorce.








[8] To these allegations
the defendant raised the following plea:








AD
PARAGRAPH 6 THEREOF



Each
and every allegation contained herein is denied as if specifically
traversed and denied and the Plaintiff is put to the proof thereof



AD
PARAGRAPH 6.1 THEREOF



Each
and every allegation contained herein is denied as if specifically
traversed and denied and the Plaintiff is put to the proof thereof



In
fact it is the Plaintiff who fails to show Defendant love and
affection.



AD
PARAGRAPH 6.2 THEREOF



The
Defendant admits that he only denied Plaintiff marital privileges
when he refuses to use protection (condoms) as they were advised by
medical practitioner to do so due to their positive HIV status.



AD
PARAGRAPH 6.3 – 6.4 THEREOF



Each
and every allegation contained herein is denied as if specifically
traversed and denied and the Plaintiff is put to the proof thereof.



In
amplifications Defendant pleads that she never abused Plaintiff in
any way. As regards the quarrels and fights it is in fact Plaintiff
that initiates quarrels in front of the children.



AD
PARAGRAPH 6.5 THEREOF



Each
and every allegation contained herein is denied as if specifically
traversed and denied and the Plaintiff is put to the proof thereof.



In
amplification of the above denial the Defendant pleads that Plaintiff
directed Defendant not to go to the traditional common home and
threatened her should she consider going there.



AD
PARAGRAPH 6.6 THEREOF



Each
and every allegation contained herein is denied as if specifically
traversed and denied and the Plaintiff is put to the proof thereof.



In
amplification of the above denial the Defendant pleads that she
always assisted to the extend she could. In fact Plaintiff often
neglected his duties in relation thereto.



AD
PARAGRAPH 7 THEREOF



Each
and every allegation contained herein is denied as if specifically
traversed and denied and the Plaintiff is put to the proof thereof.



In
amplification of the above denial the Defendant pleads that Plaintiff
left for no good reason and in fact indicated that he is going to
look for younger ladies and those that are prepared to have
unprotected sex with him despite his HIV status….













AD
PARAGRAPH 10 THEREOF



The
contents hereof are noted and Defendant has not and is not prepared
to condone Plaintiff’s adultery.








THEREFORE
DEFENDANT PRAYS THAT PLAINTIFF’S CLAIM BE DISMISSED WITH
COSTS’.








THE APPLICABLE
PRINCIPLES








[9]
‘Three things must be proved by a plaintiff in the preliminary
proceedings for a restitution order: first that the court has
jurisdiction; second that there has been and still is a marriage; and
third,
that
there has been malicious desertion on the part of the defendant. The
onus of proving both the factum of desertion and the animus deserendi
rests throughout upon the plaintiff. The restitution order will not
be made if after issue of summons the defendant returns or offers to
return to the plaintiff,
for
in that case there is no longer desertion.
1








[10]
It is common cause that the court has jurisdiction in this matter and
that the parties were married and are still so married.









[11]
In such circumstances,
it is clear that the main
question which arises is whether the plaintiff has succeeded in
discharging his onus of proving constructive desertion which would
result in the granting of a restitution order.








THE PLAINTIFF’S
EVIDENCE








[12]
In support of his quest to obtain such an order the plaintiff
testified that there was no cooperation and understanding between him
and the defendant any longer and that there was no love from either
side.
He complained of the fact that the
defendant would not wash his clothing and that she, and I quote ‘does
not give him sex’, that she would only try to verbally attack
him and that she would refuse to come to the north with him to the
traditional common home.













[13]
Without providing any detail he stated that the last time that they
physically fought,
she took out a fire arm which
she threw on the ground in the presence of the children.
He
denied that he was the initiator of these fights and that she refused
to have sex with him as he insisted that this occur without a condom.








[14] He testified further
that he tried to speak to her about these problems but that this was
without a result.








[15] He admitted to
having committed adultery with a third part during February 2011 and
requested that this be condoned. He also told the court that he had
asked the defendant to forgive him, which forgiveness was not given.








[16] He then left the
common home on 16 April 2011 as he did not want to fight any longer.








[17] He finished off by
stating that it was impossible for him to stay with a person whose
cooperation he did not have.








[18] The initial part of
cross-examination was focused on the plaintiff’s reason why he
had given up his gainful employment as a driver with Etosha Transport
in order to look after his mother in the north, as there were 7
sisters and 2 brothers, who could do this.








[19] He admitted that
both he and the defendant had contracted a serious sexually
transmitted illness and it was put to him that this was the reason
why the defendant had insisted on protected sex.








[20] He was questioned
about when he had asked the defendant for forgiveness and responded
by stating that this incident had occurred in the Windhoek home of
the parties, during April or May 2011 and that she started to quarrel
with him. As a result he told her that he could no longer stay
together with her and that he only thereafter returned to the common
home on a few occasions to take ‘things’ for the
children.








[21] After being
questioned further by Mr Kamanja, who appeared on behalf of the
defendant, regarding the aspect of condonation, it was also disclosed
that the defendant subsequently even refused that the children attend
his late father’s funeral.








[22] It was put to the
plaintiff by Mr Kamanja that it was him that had actually forbidden
the defendant to go to the common traditional home in the north. This
the plaintiff denied.








[23] He denied also that
he was living with a girlfriend at present and insisted that he was
living alone.








[24] The plaintiff was
informed that the defendant would come and testify that there were no
unnecessary quarrels between them and that they were merely
disagreements and that the disagreements between them were merely
normal ones.








[25] Finally he denied
that he left the defendant in order to look for younger ‘ladies’
with whom he could have unprotected sex and that it was him that
showed no love and affection for the defendant.








THE DEFENDANT’S
EVIDENCE








[26]
The defendant on the other hand indicated that she did not agree to a
divorce. She denied that she had acted with any intent to terminate
the marriage or that she failed to show any love and affection.

She reiterated that she loved her husband to whom she
had been ‘an obeying person for 25 years’.








[27] She further denied
having verbally attacked him or that she had refused to have sex with
him, after all three children had been born to the parties.








[28] She explained and
expounded on the history of the parties’ sickness as a result
of which they started to have protected sex.








[29] She testified that
she did wash the plaintiff’s clothes and denied the incident in
which she was alleged to have thrown a fire arm to the ground and or
that she ever quarrelled in front of the children. She clarified the
situation about the homes of the parties situated in the north of
Namibia, on communal ground, and stated that they stopped to go there
together.








[30] She also narrated
how she found out about the plaintiff’s adultery and she denied
that the plaintiff had come in April/May 2011 to ask for forgiveness
for his adultery.








[31] Under cross
examination she was asked by Mr Swarts, who appeared on behalf of the
plaintiff, to explain why she had changed her version and why her
testimony was at variance with her pleadings. The defendant put the
blame on her erstwhile legal practitioner, Ms Shilongo, who had got
her version wrong as ‘she gave her the full story’.








[32] She confirmed that
there were never any quarrels between her and the plaintiff and that
she would ‘tell him in a good way’.








[33] She stated in no
uncertain terms that she forgave the plaintiff for the adultery and
if ‘he would have asked for it she would have given it, but he
never asked’.








[34] It was then pointed
out to her that it appeared from the pleadings that she was not
prepared to condone the plaintiff’s adultery. She denied this
and blamed it on a mistake and that in any event this was not her
fault as she was no lawyer.








[35] It was then put to
her that this was not a small problem as she had even filed an entire
counterclaim. Again she did not agree.








[36] When asked whether
or not she wanted to punish the plaintiff she responded by stating
that ‘it was his problem as he wanted to go with other women’.








[37] It was then put to
her that the plaintiff would never return to her to which she replied
that ‘he could stay there and that she would still stay in the
house and still be married’. When asked whether staying in the
house was her main concern she replied that ‘it was not because
of the house’.








[38] It was then put to
her that in contradiction of her evidence it had been pleaded in the
counterclaim that the marital relationship had become intolerable,
unsupportable and impossible to which the defendant replied that this
was not true.








[39] Further cross
examination was conducted on the issue of how it came about that the
defendant’s pleadings did not reflect her instructions on which
score she confirmed that both her previous and her current legal
practitioners were Oshiwambo speaking which is also the defendant’s
home language. She explained that she had not told Ms Shilongo that
she wanted to return to the plaintiff as she was not yet divorced and
as she had also not been asked this question. She also disclosed that
she did not inform Mr Kamanja of this.








[40] A little later
however she posed the question: ’ why should she be forced to
get divorced - she had not committed adultery - she had been in the
house and in the plaintiff’s main bedroom’.








[41] She then disclosed
that she had informed Mr Kamanja of this decision and that she had
instructed Mr Kamanja that ‘they were going to fight so that
she would not get divorced’.








[42] As the fact that the
defendant was prepared to restore conjugal rights had not been raised
on the pleadings I allowed the plaintiff to reopen his case on this
issue.








[43] The plaintiff then
confirmed that he would not accept this offer as he did not want ‘the
bad that had happened to him to re-occur for which he could not
forgive her’.








[44]
Mr Kamanja expressed his surprise with this reply and put it to the
plaintiff that he had expected the plaintiff to accept the
defendant’s forgiveness,
after all,
it was on the plaintiff’s version that he sought
her forgiveness – and nevertheless at the same time indicate
that he still desired a divorce.








[45]
Finally the plaintiff testified that he remained of the view that -
taking into account all the things that had happened - that the
parties should separate.








ARGUMENT








[46]
In argument Mr Swarts submitted that the defendant had essentially
presented three versions to the court and the question thus arose
which version was the true one. The plaintiff on the other hand had
stuck to his guns. He pointed out that the defendant testified what
had not been pleaded and that even after such testimony the pleadings
had not been amended. There were major contradictions on the
defendants evidence even if one would accept that lawyers could make
mistakes.
This was however unlikely as the
lawyers were Oshiwambo speaking and that all in all,
the
defendant’s evidence was thus unsatisfactory and should be
rejected.








[47] He submitted that on
the evidence, the plaintiff had made out a case and that the
defendant’s offer to restore the marriage was not genuine, for
which there had been ample opportunity before but by doing so at a
late stage this tender was surely made solely to prevent the divorce.








[48] Mr Kamanja on the
other hand pointed out that the plaintiff cannot come to court in
order to rely on the shortcomings of the defendant’s evidence.
Plaintiff was obliged to discharge an onus and that he had to show on
a balance of probabilities that he was entitled to a divorce, but had
not done so. He went on to analyse the various denials of the
defendant regarding the various grounds of divorce as advanced by the
plaintiff.








[49] He submitted further
that it was the court that had to grant condonation to the plaintiff
for his admitted adultery and that the plaintiff had advanced no
grounds in this regard and that it was not enough for the defendant
to forgive the plaintiff.








[50] Some argument also
turned on what the defendant’s pleadings should have contained
and whether the defendant’s tender to take the plaintiff back
should have been pleaded and in which respects one would have
expected the pleadings to be amended.








[51] Finally Mr Kamanja
closed his argument by reiterating that Mr Swarts had focused his
argument on attacking the defendant’s credibility dispite the
defendant testifying cogently and that the plaintiff had failed to
prove his case.








DID THE PLAINITFF
DISCHARGE HIS ONUS?








[52]
Turning now to the consideration of whether or not the plaintiff has
discharged his onus in this matter,
I keep in
mind what was said by Frank AJ that ‘there must be conduct
which one must not expect in the ordinary course of marriage’
and in respect of which it was further stated








the
conduct … need not to have amounted to a matrimonial offence
such as cruelty or adultery but … it must exceed in gravity
such behaviour vexatious and trying though it maybe, as every spouse
bargains to endure when accepting the other ‘for better or for
worse’. The ordinary wear and tear of conjugal life does not
itself suffice’.
2








[53] If one then
considers the evidence of the plaintiff it will appear at first
glance that his evidence lacks detail. Although he generally narrates
the grounds of divorce, as pleaded, one does not find any specifics,
such as dates and places of the incidents referred to, save in regard
to the incident were he requested the defendants condonation for his
adultery.








[54] The Plaintiff’s
averments that the defendant does not wash his clothes where
countered by the defendant effectively and accordingly I cannot make
finding in this regard on the probabilities in favour of the
plaintiff.








[55] As for the
allegation regarding the refusal of marital privileges the issue
eventually turned on the request of the plaintiff to have unprotected
sex. In view however of the detailed history volunteered by the
defendant relating to the discovery that plaintiff had contracted the
HIV virus and that counselling was received in that regard and the
subsequent conduct of the parties as a result, I will find - and so
much was conceded in argument - that the defendant’s demands -
that the plaintiff use a condom - was reasonable in the
circumstances.








[56] Also the further
testimony of the defendant that she resorted to using a femidom to
accommodate the plaintiff’s needs is accepted as reasonable.
Also the detailed exposition of the defendant given in this regard,
in the course of which she even disclosed her own HIV status, do lead
me to infer that I must accept her version of the evidence relating
to this ground of divorce.








[57] It is clear however,
that as the parties were actually separated and no longer lived under
one roof since April or May 2011 except for the odd occasion on which
the plaintiff visited the Windhoek home, to bring ‘things’
for his children. It must be accepted that parties no longer engaged
in any sexual activity since then.








[58] As far as the relied
upon instances of abuse are concerned it was noted that the
plaintiff’s pleading speaks of physical abuse as well as
quarrels and fights in front of the minor children. In court the
Plaintiff confined his evidence to verbal abuse and he stated in this
regard that only during the last time that they physically fought,
the defendant took out his fire arm, which he threw on the ground.








[59] I am inclined to
believe his testimony that the disclosure of his adultery led to
another quarrel although this version is denied by the defendant.








[60] If one considers the
defendant’s case in this regard it just seems too good to be
true. Firstly she denied ever verbally attacking the plaintiff. She
testified further that she was never involved in a fight with the
plaintiff and that she does not beat him - if there were
disagreements she would ‘tell him in a good way’. This
evidence is directly contradicted by what was pleaded on the
defendant’s behalf in the counterclaim, which she instituted,
and where it was expressly alleged that it was the plaintiff, who
during the subsistence of the marriage, with the fixed and malicious
intention to terminate same, inter alia also unlawfully and
wrongfully physically abused the defendant. Whatever the precise
nature of the altercations between the parties was, I find it more
probable than not that, also in this marriage, the frequency and the
intensity of the quarrels between the parties increased and even
escalated with a passage of time to such a degree that it prompted
the plaintiff to ultimately testify that he had reached the stage
where he did not want to fight with the defendant any longer. This
evidence was echoed under cross-examination when the plaintiff was
recalled and where he stated that he had come to the conclusion that
after all the ‘things’ that had occurred - meaning that -
after all the ‘things’ the defendant had done -the
parties should separate.








[61]
As far as the alleged refusal of the defendant to accompany the
plaintiff to the traditional home is concerned it is firstly clear
that,
after
the parties separated in April/May 2011,
that
there was no longer any such accompaniment. Both parties narrated
their reasons in this regard in respect of which I am unable to find
any indication which would swing the balance of probabilities on this
ground in favour or either party.








[62] This brings me to
the important question of whether or not there was any love and
affection left between the parties and whether or not this ground was
proved and whether or not the offer of the defendant to restore the
marriage was genuine or not.








[63]
At the outset it seems fairly obvious to me from my observation of
the demeanour of the plaintiff that certainly he, on his part,

had
lost all love and affection for the defendant.

Upon
my observance of the demeanour of the defendant I could not avoid
thinking of what was stated in Hamlet :

the
lady doth protest too much me thinks’
3.
But I hasten to add that this was an impression based upon my
observations of the manner in which the defendant testified.








[64] I have already
mentioned herein above that it came as a surprise - given the state
of the pleadings and the issues defined therein for trial - that the
defendant now came and testified that she had forgiven the plaintiff,
intending to convey thereby, that she had also condoned his adultery,
that she still loved him and that nothing should separate them except
death and that she did not want to get divorced at any cost and
therefore would even be prepared to accept that ‘he would stay
in the North while she would continue to stay in Windhoek’.








[65] It had been
pertinently pointed out to her in cross-examination, an aspect that
was also carried through in argument, that this evidence flew in the
face of what had been pleaded at paragraph 11 of her plea, in which
it had been expressly stated on behalf of defendant, that the
defendant was not prepared to condone the plaintiff’s adultery.
This testimony was also directly contradicted by the institution of
the counterclaim, in which the defendant sought a divorce on her own
terms.








[66] The defendant tried
to blame this divergence on her lawyers with whom she shared the same
mother tongue and where she had stated in regard to Ms Shilongo that
they never got to the stage of considering the aspect of condonation
and any resultant tender of the restitution of conjugal rights.
Although it is possible that Ms Shilongo might have misunderstood
some detail, or incorrectly pleaded same in the defendant’s
plea, such as for example whether or not the quarrels were physical
or not, it seems highly unlikely that she would have misunderstood
the defendant’s instructions regarding the institution of an
entire counter claim accompanied by detail which Ms Shilongo surely
would not have invented in the abstract.








[67] Although the
defendant testified further that she informed her current legal
practitioner in this regard also such instructions seem unlikely in
the absence of Mr Kamanja even attempting to amend his client’s
pleadings in order to bring them in line with this client’s
alleged instructions and intended evidence.








[68] In such
circumstances it must be concluded that the plaintiff has also
succeeded in proving this ground of divorce on a balance of
probabilities and that the defendant’s belated offer, to
condone the plaintiff’s adultery and to restore conjugal
rights, was not bona fide and constituted a mere stratagem to
escape a restitution order and a divorce.








[69] I was left with the
distinct impression, despite this being denied, that it was indeed of
consequence to the defendant that she could remain resident in the
Windhoek property and that this was the real reason, or at least was
one of the main reasons, for her turn-about. This finding is to some
extent also corroborated by her evidence which she gave in response
to being asked, when it was put to her that the plaintiff would never
return to her, that she stated that this would not be a problem for
her as the ‘plaintiff could stay there’, meaning in the
North, and that ‘she would stay – in Windhoek - and that
they would still be married’.








[70]
I thus conclude on those grounds of divorce,
which
the plaintiff has been able to prove, that he has been able to
discharge his overall onus.








CONDONATION FOR
ADULTERY OR NOT








[71] What remains to be
determined is whether the court should condone the plaintiff’s
adultery.








[72] The two main
considerations which will influence the court in deciding whether the
plaintiff’s adultery should be condoned are.








First,
the
respective blameworthiness of 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 union which has utterly broken down. …
The court is in no way fettered in the exercise of its discretion …
4.








[73] On the score of the
respective blameworthiness between the parties there was no evidence
placed on the record which explained why and in what circumstances
the adultery had been committed. What however plays an important part
in this regard is that the defendant herself, as the affected party,
has belatedly condoned the plaintiff’s conduct.








[74] It is also clear to
me - I have already alluded to this - that I formed the distinct
impression that, from the plaintiff side, the marriage was
‘irretrievably broken down’ and that there are no
reasonable prospects for the resumption of a joint and further
harmonious married life. It cannot be in the interest of public
policy to insist on the maintenance of a union which only one partner
seemingly wishes to perpetuate.








[75] In the circumstances
the condonation sought in this regard is granted.








[76] It should have
emerged from the analysis of the evidence that the plaintiff has just
managed to escape absolution and I cannot say that it was totally
unwarranted for the defendant to try and rescue her marriage in
respect of which she however lost sight of the fact of how far her
marriage was actually already on the rocks especially after the
actual separation of the parties for nearly two years already.








[77] These considerations
have impacted on the way in which I will exercise my discretion
regarding the costs order which I will make.








[78] In the result the
following order is made:













The Court grants judgment
to the plaintiff for an order for the restitution of conjugal rights
and orders the defendant to return or receive the plaintiff on or
before the 11th day of March 2013, failing which to show
cause, if any, to this court on the 9th day of April 2013
at 08h30 why:









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










  1. Each party should not
    bear its own costs.





























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



H GEIER



Judge




































































APPEARANCES








PLAINTIFF: N Swarts



Swarts & Bock Legal
Practitioners, Windhoek.








DEFENDANT: AEJ Kamanja



Instructed by Sisa Namandje & Co.
Inc.,



Windhoek





























1See
in this regard for instance the unreported judgment in the case of
Vatilifa vs Vatilifa Case
P (I) 3276/2006 delivered on 19 September 2007 by Frank AJ at p 3





2Prof
HR Hahlo
The Law of Husband and
Wife’
4th
Ed at page 394 - Vatilifa
vs Vatilifa
op cit at p 4





3Queen
Gertrude in Shakespeare’s ’Hamlet’ Act III scene
II





4The
Law of Husband and Wife’ op cit
at
page 370 to 371