Court name
High Court Main Division
Case name
Kasita v Iipinge
Media neutral citation
[2013] NAHCMD 72
Judge
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 1321/2011








In the matter between:








JOHANNES JONAS KASITA
.......................................................................
PLAINTIFF








and








HELVI TWEUTHIGILWA
IIPINGE
.............................................................
DEFENDANT








Neutral citation:
Kasita v Iipinge (I 1321/2011) [2013] NAHCMD 72 (14 March
2013)








Coram: PARKER AJ



Heard: 6 –
8 February 2013; 21 February 2013



Delivered: 14
March 2013








Flynote: Husband
and wife – Matrimonial property regime – Marriages
governed by Proc 15 of 1928 – Such marriages presumed to be out
of community of property – However, parties can within one
month prior to celebration of the marriage jointly declare before the
marriage officer that they wish to be married in community of
property – In that event the marriage will be in community of
property.








Flynote: Husband
and wife – Maintenance of one spouse by the other –
Spouse asking for spousal maintenance must establish he or she is in
need of such maintenance.













Summary: Husband
and wife – Matrimonial property regime – Marriages
government by Proc 15 of 1928 – Such marriages presumed by
operation of law to be out of community of property – However,
such marriage will be one in community of property if within a time
lag of one month prior to (ie ‘previous to’) the
celebration of the marriage the parties jointly declare before the
marriage officer that they wish their marriage to be in community of
property – In casu the parties jointly made such
declaration – Court holding that ‘anytime previous to the
celebration of the marriage’ in s 17(6) of the Act means a time
lag of one month prior to the celebration of the marriage –
Consequently, the court concluding that the parties’ marriage
is one of community of property – Principle in Nakasholo v
Nakasholo
2007 (1) NR 27 applied – Court therefore making
an order that the joint estate be divided equally between the
parties.








Summary: Husband
and wife – Maintenance of one spouse by the other –
Spouse asking for spousal maintenance must establish he or she is in
need of such maintenance – Court applied principle in Neil
Roland Samuels v Petronella Samuels
Case No. I 902/2008
(Unreported) – Court finding that the defendant needed the
spousal maintenance – However since the court has ordered the
plaintiff to immediately pay 50 per cent of the money the plaintiff
was paid by the Omuthiya Town Council for expropriating the
matrimonial home (ie N$255 169,50), the court found it would be
unreasonable and unfair to order the plaintiff to pay maintenance to
the defendant.










ORDER











  1. The plaintiff must not
    later than 31 March 2013 pay to the defendant N$255 169,50.










  1. The rest of the joint
    estate must be dissolved and divided equally between the plaintiff
    and the defendant.










  1. Costs shall stand over
    for determination in due course.











JUDGMENT










PARKER AJ:








[1] In this matrimonial matter the
issues requiring adjudication as set out in the pre-trial order made
on 24 January 2013 are:









  1. whether the parties are
    married in community of property or out of community of property;










  1. which party shall have
    custody and control of the minor children;










  1. the amount of
    maintenance that shall be paid in respect of the minor children;










  1. whether or not the
    defendant is entitled to spousal maintenance and the amount that
    shall be paid.









[2] It was the understanding of Ms
Shipopyeni, counsel for the plaintiff, and Ms Shikale, counsel for
the defendant, that since issues (b) and (c) are interrelated and a
decision on (c) should reasonably be influenced by who will have
custody and control of the minor children, issues (b) and (c) should
be adjudicated in a separate proceeding. It was further the
understanding of both counsel that decisions on issues (b) and (c)
should await the social welfare report requested by the registrar
from the Ministry of Gender Equality and Child Welfare. For these
reasons, evidence and submissions were heard on only issues (a) and
(d). This judgment, therefore, concerns these two issues only.








Issue (a):



[3] The law is now settled that a
marriage governed by s 17(6) of the Native Administration
Proclamation 15 of 1928 (‘the Proclamation’) has by
operation of law the consequences of a marriage out of community of
property unless within a time lag of one month prior to the
celebration (ie solemnization) of the marriage the parties jointly
declared before the marriage officer that it was their intention and
wish that their marriage be in community of property. (Nakasholo v
Nakasholo
2007 (1) NR 27) In the instant case the evidence points
irrefragably to this, and both counsel do not dispute it: A
declaration was jointly made by the parties within the time lag of
one month prior to the celebration of their marriage on 26 December
2003 at Oshigambo within the meaning of s 17(6) of the Proclamation.
But that is not the end of the matter. Ms Shipopyeni submits that
according to s 17(6) of the Proclamation ‘a declaration must be
made one month prior to the solemnization (celebration) of the
marriage’, and ‘the parties made such declaration two
weeks before the conclusion (celebration) of the marriage’. And
so, counsel concludes, the Plaintiff and the Defendant are married
out of community of property. Counsel’s construction of s 17(6)
of the Act is incorrect.








[4] Seeing that counsel
had misread the clear and unambiguous provisions of s 17(6) of the
Proclamation, with carefulness and judicial patience, I draw the
attention of counsel to the fact that her misreading of those
provisions has resulted in her misinterpretation of those provisions.
Counsel appeared to remove the critical phrase ‘at anytime
within’ which qualifies the clause ‘one month previous to
the celebration of such marriage’. In the end – it would
seem to me – counsel appeared to have accepted that the correct
interpretation and application of the limitation of time in s 17(6)
of the Proclamation is that the declaration should be made jointly by
the parties at any time within the time lag of one month prior to (ie
‘previous to’) the celebration of the marriage. As I have
said previously, it is not in dispute that the parties jointly made
the s 17(6) declaration within the time lag of one month prior to
(‘previous to’) the celebration of their marriage in
terms of that section of the Proclamation. In my judgment, therefore,
I hold that the parties’ marriage is in community of property.








[5] In his rule 37(6)(b)
affidavit, the plaintiff claims, ‘In the event of this
Honourable Court finding that the marriage is in community of
property, which I deny, then I propose that the Defendant forfeits
the benefits derived from the marriage in community of property’.
I should mention that this is not a statement of fact, as an
affidavit should contain, but a conclusion of fact and a prayer for a
particular relief. The plaintiff has not stated on oath the facts he
relies on to support his prayer that the defendant should ‘forfeit
the benefits derived from the marriage in community of property’.
In her counterclaim the defendant prays for the division of the joint
estate, based on – as I understand it – the defendant’s
contention that the parties’ marriage is in community of
property (as I have found it to be). The plaintiff has not in his
plea pleaded to the defendant’s counterclaim that the joint
estate be divided. Besides, he has not, as I say, placed any facts
before the court to persuade the court to order the defendant’s
forfeiture of the joint estate in the marriage which I have found to
be in community of property. On the facts and in the circumstances of
the case I conclude that it is just and fair that the joint estate of
the parties is divided equally, ie each party taking 50 per cent of
the joint estate. The facts placed before me do not justify a finding
as to who has contributed less to the joint estate.








[6] There is the question
of the matrimonial home. In her rule 37(6)(b) affidavit, the
defendant states that whilst the divorce is ongoing the plaintiff
sold the common home to the Town Council of Omuthiya. The plaintiff
does not mention anything about this in his rule 37(6)(b)
affidavit. The issue of the common home was only dealt with in the
plaintiff’s testimony during the trial. The plaintiff’s
testimony is that the Council paid an amount of N$524 339,59 but his
father took N$400 000,00 and told the plaintiff that the plaintiff
could keep the remaining N$124 339,59. I shall not place any credence
on the plaintiff’s testimony for the following reasons. The
plaintiff did not adduce any evidence from the father to corroborate
his say-so. Besides, this issue about the common home was not dealt
with at all in the plaintiff’s rule 37(6)(b) affidavit;
and so I think I should invoke rule 37(16) of the rules in that
regard. Thus, for these two considerations, I think I should not
accept the plaintiff’s testimony that he was only left with
N$124 339,59 out of the compensatory payment of N$524 339,59 made by
the Omuthiya Town Council to the plaintiff in respect of the
matrimonial home. I hold, therefore, that the total amount of N$524
339,59 should form part of the joint estate; and the defendant is
entitled to 50 per cent of this amount. She has already been given
the aforementioned N$7 000,00 by the plaintiff from the payment made
by the Council.








Issue (d):



[7] As I understand it,
the dispute is not concerned with whether the defendant is entitled
to spousal maintenance but with the amount to be paid. And in this
regard, what the defendant prays for is N$1 200,00 per month for a
period of 24 months only. From the evidence I gather that the
plaintiff says he is only able to pay N$200,00. To support his
position, he testified about his monthly remuneration (indicated on
his payslip) as an assistant clerk in the employ of the Ministry of
Agriculture, Water and Forestry. This court can only award her
maintenance and the amount involved ‘if it is proven on a
balance of probabilities that she is in need of it’. (Neil
Ronald Samuels v Petronella Samuels
Case No. I 902/2008 (judgment
on 26 March 2010) (Unreported) para 32)








[8] The defendant says
she needs the N$1 000,00. Since the matrimonial home has been sold by
the plaintiff, I find that the defendant needs the maintenance to pay
for, among other things, at least rent in respect of residential
accommodation and her sewing shop. On the evidence I find that she
derives N$750,00 per month from her sewing business, and out of that
she pays rent of N$300,00 per month for the sewing shop, leaving her
with N$450,00. I have decided previously that the defendant is
entitled to one half of the joint estate, including 50 per cent of
the money paid to the plaintiff by the Omuthiya Town Council, that
is, N$255 169,50. For this reason, I think it would be unfair and
unreasonable to order the plaintiff to pay the defendant spousal
maintenance of N$1 000,00 or any amount per month for two years.








[9] Since the present
proceeding concerns only one part of the cause or matter (ie issues
(a) and (d)) I shall not determine costs of suit at this stage: costs
will stand over for determination in due course.








[10] In the result, I
make the following order:









  1. The plaintiff must not
    later than 31 March 2013 pay to the defendant N$255 169,50.










  1. The rest of the joint
    estate must be dissolved and divided equally between the plaintiff
    and the defendant.










  1. Costs shall stand over
    for determination in due course.
























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



C Parker



Acting Judge













APPEARANCES








PLAINTIFF : F N K
Shipopyeni



Of Shipopyeni &
Associates, Windhoek













DEFENDANT: L Shikale



Of Kaumbi-Shikale Inc.,
Windhoek