Court name
High Court Main Division
Case number
APPEAL 22 of 2013
Title

M v M and Others (APPEAL 22 of 2013) [2015] NAHCMD 181 (08 May 2015);

Media neutral citation
[2015] NAHCMD 181
Coram
Miller AJ


















SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law and
SAFLII
Policy






REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 22/ 2013


DATE:
05 AUGUST 2015


REPORTABLE


In
the matter between:


[L………..]
[M………..]
.....................................................................................................APPLICANT


And


[J………]
[M………..]
............................................................................................1ST
RESPONDENT


MAHARERO
TRADITIONAL
AUTHORITY
...................................................2ND
RESPONDENT


THE
MINISTER OF GENDER EQUALITY AND CHILD


WELFARE..............................................................................................................3RD
RESPONDENT


THE
MINISTER OF REGIONAL AND LOCAL GOVERNMENT,


HOUSING
AND RURAL
DEVELOPMENT
......................................................4TH
RESPONDENT


THE
ATTORNEY
GENERAL
.............................................................................5TH
RESPONDENT


Neutral
citation: Mbaisa v Mbaisa (A 22-2013) [2015] NAHCMD 181(05 August
2015)


Coram:
MILLER AJ


Heard:
2-6 June 2015


Delivered:
05 August 2015


Flynote:
Customary law- Marriage conducted under the Ovaherero Customary law –
Marriage annulled by the community court – Allegations of
Universal partnership as a basis to equally share in the joint estate
– Essentials of a partnership set out – Applicant not
establishing that there is a tacit Universal Partnership –
Constitutionality of customary law questioned – Applicant to be
returned back to parents house after annulment of marriage –
Such customary law not proven to be contrary to article 8,10 and 16
of the Namibian  Constitution.


ORDER


1.
The application is dismissed with costs, such costs to include the
costs of one instructing and two instructed counsel.


2.
The first respondent’s counter-application is also dismissed.


JUDGMENT


MILLER
AJ:


[1]
The applicant and the first respondent were married to each other on
February 1965 under the customary law of the Ovaherero Traditional
community. During the subsistence of the marriage, five children were
born of the marriage and the parties also acquired properties in the
form of livestock, vehicles as well as immovable properties. Their
marriage was annulled by the Maharero Community Court on 28 July 2011
on the grounds of adultery, because the first respondent married a
second wife, who is related to the applicant, under customary law of
the Ovaherero. As part of the annulment order, the following was also
ordered:





·
‘That the marriage between the two parties is formally
nullified;


·
Mr [M……….] was ordered to compensate his wife by
paying her 80 head of cattle;


·
The defendant) Mr [J……..] [M……….]
was ordered returned his former wife to her family from where she
originated in compliance with Herero Customary practices;


·
(The complainant) Mrs [L…….] [M…..…]
objected to the third order as she prefers to stay within the common
homestead contrary to the Herero customary practices which dictates
that the husband is in charge of the werf inclusive of the former
common homestead;


·
As such the Complainant Mrs [L……..] [M……..]
was authorised by the Maharero Community Court to seek readdress
further as per request.’


[2]
The application before court, dated 27 February 2013 is brought on
the basis that the first respondent did not comply with the order
from the community court. The relief sought reads:


1.
Declaring as unconstitutional and invalid in terms of article 66(1)
read with articles 10 and 8 of the constitution of the republic of
Namibia  the customary practice(s) on which respondent relies,
after the dissolution of the customary marriage/union, to deprive
applicant of the 50% share of the customary marriage/union joint
estate.


2. Declaring
customary marriage/union between applicant and respondent a tacit
universal partnership entitling parties thereto equal shares of the
customary marriage estate on dissolution of the marriage/union.


3. Declaring the
refusal of respondent to share equally with Applicant the customary
marriage/union estate after dissolution of the marriage/union between
the applicant and respondent a violation of applicant’s rights
to dignity, property, equality and not to be discriminated against on
the basis of sex as stipulated in the Constitution of the Republic of
Namibia.


4. Confirming the
dissolution of the customary marriage between the applicant and the
respondent by the Customary Court.


5. Setting aside
the order of the Customary Court regarding the division of the
customary marriage/union estate between applicant and respondent.


6. Directing
respondent to share equally with applicant the estate of the
customary marriage/union between the applicant and respondent.


7. Directing
respondent, if he chooses to oppose this application, to pay the
costs thereof;


8. Granting
applicant further and/or alternative relief.’


[3]
The applicant’s basis for seeking such an order from this court
is because the first respondent to date has not complied with the
community court’s order and that it was due to the respondent’s
adulterous conduct that the marriage between them was annulled. The
gist of this application is to order the respondent to divide the
joint estate equally based on an alleged tacit universal partnership
that resulted from the customary marriage. The applicant alleges that
she has a rightful share in the assets and that she contributed to
the joint estate as a wife for the benefit of the family and the
children and that she is entitled to half share of the estate.
Accordingly, the first respondent’s refusal to comply with the
community court order of the 28 July 2011 is a violation of her
constitutional rights, to wit, article 8, 10, 16 read with article
66(1) of the Namibian constitution. It is further applicants case
that a specific customary law that is relied on contravenes her
rights in terms of article 8 and 10 and that in terms of Article
80(2) of the Namibian Constitution, the High Court has inherent
jurisdiction to hear this matter and not the Magistrate’s court
despite the remedies provided by the Community Courts Act, 2003.


[4]
The first respondent opposed the application on 28 June 2013 but the
2 - 5th respondents did not oppose the application. The
first respondent proceeds on three grounds for his opposition which
can be summarized as follows:


a)
That the specific custom on which the respondents rely to deny the
applicant her 50% share has not been identified and no factual basis
has been set out for its existence;


b)
That no basis has been established for the high court to pronounce
itself on a decision of a community court if, it terms of the
Community Court’s Act 10 of 2003, an appeal should be made to
the Magistrate’s Court;


c)
That no facts establish the existence of a universal partnership
between the applicant and the respondent and no basis for the
proposed equal division of the estate has been established.


[5]
The first respondent denies the principal allegations of not
complying with the annulment order and further alleges that it is the
applicant who, to date, refuses to move from the homestead as ordered
and that an eviction order is being sought as a counterclaim to this
application. The first respondent states that he has already complied
with the community court order in that the heads of cattle ordered
was given to the applicant who also refuses to remove same from the
kraal. An existence of a Universal partnership is denied on the basis
that the customary marriage does not automatically bring about the
existence of a partnership and further that no evidence is before
court to sustain such allegations.


Issues
that falls for determination by the court


[6]
The application was subjected to Case management and in terms of the
Case Management report dated 28 January 2014, the following issues
need to be determined by the court:


1. Is the
customary marriage that subsisted between the applicant and 1st
respondent a tacit universal partnership?


2. If the said
marriage constitutes a tacit universal partnership, what are the
proprietary consequences of such partnership?


3. In the event
this Honourable court finds that there was no universal partnership
and applicant is not entitled to claim half of the estate in issue,
will the rights of applicant, as stipulated in article 8, 10 and 16
of the Namibian constitution read with article 66(1) of the
constitution of Namibia, not be violated?’


[7]
It is clear from the issues above that the court is called upon to
determine firstly whether or not a universal partnership existed
between the applicant and the first respondent. That determination
will cure the question of the parties’ proprietary rights. The
second question is whether the customary practice violates the
Namibian constitution, in that the order as granted by the Community
court violates the applicant’s rights to dignity, property and
equality.


The
status of customary marriages before a court of law


[8]
Our Namibian law recognizes two types of Marriage, ie the civil law
marriages and the customary law marriages. The former is solemnized
under state law and the consequences flowing therefrom are
enforceable before a court of law and the parties duties and
obligations are codified by the Married Person’s Equality Act 1
of 1996 (MPEA). Customary marriages, on the other hand, are conducted
according to the customary laws of various communities and the
consequences flowing therefrom are relates to the specific community
and thus different from the next community. The obligations of the
parties are in terms of the relative customary laws and such
marriages are not enforceable before a court of law. The type of
marriage that parties engage in is a matter of choice and the system
chosen should be able to resolve disputes arising out of the chosen
union. Some of the significant protections accorded by the
Constitution on customary unions is under article 12 (1)(f) where no
court may compel partners from a marriage by customary law to give
testimony against each other and article 66(1) which allows the
practicing of a custom to the extent that it does not conflict with
the constitution or any other law. An allegation that a customary law
conflicts with the constitution shall be proved by the applicant
before such custom may be declared unconstitutional.


Was
there a universal partnership between the applicant and the
respondent?


[9]
Universal partnerships of all property which extend beyond commercial
undertakings were part of Roman-Dutch law and still form part of our
law.  A universal partnership of all property does not require
an express agreement. Like any other contract, it can also come into
existence by tacit agreement, that is, by an agreement derived from
the conduct of the parties. The requirements for a universal
partnership of all property, including universal partnerships between
cohabitees, are the same as those formulated by Pothier for
partnerships in general. Where the conduct of the parties is capable
of more than one inference, the test for when a tacit universal
partnership can be held to exist is whether it is more probable than
not that a tacit agreement had been reached. [1]


[10]
In the recent judgment of
Behrenbeck
v Voigts
[2]
,
the court pointed out that a plaintiff who relies on the existence of
a partnership agreement bears the onus to establish that the terms of
the agreement conform to what is in law required to establish a
partnership agreement.  These requirements are the following:


a)
An undertaking by each party to bring into the partnership money,
labour or skill.


b)
The object must be to carry on a business for the joint benefit of
all the parties.


c)
The
common object must be to make profit.[3]


[11]
In addition the parties to the agreement must share in the profits
and the losses. In the case of
Butters
v Mncora
[4],
the Supreme Court of appeal had to determine whether a universal
partnership existed between the parties. Brand JA stated:


The
three essentials are, firstly, that each of the parties brings
something into the partnership or binds themselves to bring something
into it, whether it be money, or labour, or skill. The second element
is that the partnership business should be carried on for the joint
benefit of both parties. The third is that the object should be to
make a profit. A fourth element namely, that the partnership contract
should be legitimate, has been discounted by our courts for being
common to all contracts.’


[12]
A universal partnership concluded tacitly has frequently been
recognised in our Courts of law as between a man and a woman living
together as husband and wife but who have not been married by a
marriage officer.[5] As in all
such cases, the court searches the evidence for manifestations of
conduct by the parties that are unequivocally consistent with
consensus on the issue. At the end of the exercise, if the party
placing reliance on such an agreement is to succeed, the court must
be satisfied, on a conspectus of all the evidence that it is more
probable than not that the parties were in agreement, and that a
contract between them came into being in consequence of their
agreement.  In any analysis of the evidence the most important
considerations are thus whether either party said or did anything to
manifest his or her intention and, if so, what the reaction of the
other was. Where the tacit agreement that is relied on is one of
universal partnership, the cardinal intention of both parties must be
to share in the profits of the subject matter alleged to be covered
by the agreement.


[13]
The applicant states that her contribution was in the form of labour,
time and skill as a house wife and mother and that she bound herself
by working on the farm and caring for the parties’ children and
grandchildren. It is further her allegation that the farms and other
assets were used for the joint benefit of the parties, their children
and grandchildren and that the object of the partnership was to
accumulate as many assets as possible especially more livestock and
vehicles so as to generate profit therewith. Counsel on behalf of the
applicant argued that since the parties were married for over 40
years, it can be adduced from their conduct that they conducted their
affairs as partners. Contrary to this, counsel on behalf of the first
respondent submits that the proprietary consequence of customary
marriages does not lead to the creation of a Universal partnership
and that her contribution was as a result of her common law duty to
support the first respondent as a wife. Accordingly, more evidence
has to be brought as to the applicant’s contributions to the
alleged partnership.


[14]
I agree with counsel for the first respondent that, although the
contribution to the household has been held to be a significant
factor, the applicant has failed to specifically identify her role in
a partnership. Evidence such as the work that she had to do on the
farm was not identified and the extent to which she might have helped
the first respondent in the upkeep of the farm. Without the evidence
of her contribution, it becomes difficult to determine the share that
she is entitled to because it is trite that distribution in a
partnership is based on each partners contribution.[6]
No such evidence is before court. In fact, on the applicants own
version, neither party has established how much they both contributed
to the alleged partnership.[7]


[15]
The other requirements also then fall through the cracks because
there is no evidence before court that the partnership was for the
joint benefit of the partners. The first respondent admits that he
carries on a large farming operation on behalf of all his siblings in
the [M………] family in his capacity as head of
that family and it is accepted that it is a profit making business.
From the papers, it seems like the [M…….] family is a
big family and that the farming activities are for the benefit of all
the siblings under the first respondent’s responsibility. If
the partnership exists, to whose benefit is the income and how has it
been distributed? There is no evidence to show that there was even an
expectation that the profits are to be shared. The order of 28 July
2011 goes against the existence of a partnership by ordering that the
applicant be returned to her parent’s home with only 80 heard
of cattle. The inference drawn is that the applicant does not have
any share in the joint estate. The argument that the applicant will
be left with nothing does not assist her much because these are the
consequences of choosing firstly the type of marriage and without
having an enforceable agreement to share.


[16]
In my view, the first respondent failed to discharge the onus on her.


Is
the Customary law practiced by the 1st respondent
unconstitutional?


[17]
Smuts J stated in
Tjingaete
v Lakay NO

that the applicant must prove the customary law in question, ie the
content of the customary law and its observance and its effect.[8] 
Accordingly, a way in which this can be done would be to tender
evidence on customary law and the customs in question. Article 66(1)
reads:


(1)
Both the customary law and the common law of Namibia in force on the
date of independence shall remain valid to the extent to which such
customary law or common law does not conflict with this constitution
or any other statutory law.’


[18]
The applicants case is that the customary law practiced by the first
respondent is against article 8, 10 and 16 of the Namibian
constitution in that the custom dictating that the applicant be
returned home at her age of 71 treats her as the first respondent’s
‘commodity’. The submissions made on behalf of the
applicant paints a picture that the unconstitutionality stems from
the fact that the parties, being married for over 40 years, and that
since the acquired property, the order that the applicant be returned
to her parent’s house is against her right to dignity as a
woman and that she is being denied her right to use and stay on the
property that she called home for the past 40 years. The first
respondent submits that there is no iota of evidence showing any
violation of any of the constitutional provisions. The applicant does
however not identify or prove the customary law alleged. No evidence
on affidavit was produced to establish the existence of the customary
law.


[19]
I pointed out during submission to counsel on behalf of the applicant
that consequences arising from the choice of marriage should not be
used as a basis for a constitutionality test. I am not convinced that
the customary law practices is contrary to article 8 since no
evidence was led to show that the applicants dignity has been
damaged. No evidence was further led to show that any form of
discriminatory practices on grounds of sex, race, colour, ethnic
origin, religion, creed or social or economic status has been
practiced on the applicant. Moreover, no evidence has been adduced to
show that article 16 has been violated since there is no proof of any
disposition of property belonging to the applicant. In fact the
applicant does not even state what properties belonged to her,
entirely or jointly, during the subsistence of the marriage with the
first respondent. Furthermore, the applicant is drawn to the
principles in the case of
Shipanga
v Shipanga
[9]
in
that the constitution does not apply retrospectively, in that
customary law could only be declared as being unconstitutional from
the date of independence and not as back as 1965 when the parties got
married.


First
respondent’s counterclaim


[20]
As part of the application, the first respondent seeks an eviction
order. Section 23 of the Community Courts Act 10 of 2003 provides for
the enforcement of orders of community courts if an order of a
community court is not satisfied within the period specified by that
community court. The person in whose favour it was given may register
the order at the Magistrate's Court by lodging with the clerk of such
Magistrate's Court a copy of the order of the community court duly
certified as such by the clerk of the community court. Once that has
been registered with the magistrate’s court, it is then upon
the first respondent to seek an order from the magistrate’s
Court. In that sense, the application now being brought before me is
premature and the first respondent should follow the procedure
prescribed by law.


[21]
In the result, the following order is made:


1.
The application is dismissed with costs, such costs to include the
costs of one instructing and two instructed counsel;


2.
The first respondent’s counter-application is also dismissed.


PJ
Miller


Acting


APPEARANCE:


APPLICANT
R Mukonda


Of
Legal Assistance Centre, Windhoek


1ST
RESPONDENT TJ Frank SC (Assisted by RL Maarsdorp)


Instructed
by LorentzAngula Inc, Windhoek



[1]
2012(4) SA 1 (SCA).




[2]
I 746/2014) [2015) NAHCMD 72 (23 March 2015)




[3]
Amlers Precedents of Pleadings; 7
th
Edition at page 308.




[4]
At 5D-F.




[5]
Frank and Another // The Chairperson of the Immigration selection
board 1999 NR 257 at 268F-H.




[6]
See
Behrenbeck
v Voigts
(I
746/2014) [2015) NAHCMD 72 (23 March 2015), para 11.




[7]
Para 26 of the Applicant’s Heads of Arguments.




[8]
(A 34/2014) [2014] NAHCMD 178 (11 June 2014)Para (27)-(29).




[9]
(I 259/2012) Shipanga v Kautwima (I 3962/2012)[2014] NAHCMD 318 
(30 October 2014).