“1. That the custody and control of the three minor children born of the marriage should be awarded to the Respondent, subject to the Appellant’s right of reasonable access as per Annexure ‘A’;
2. That the Appellant should pay maintenance in respect of the aforesaid minor children in the amount of N$2 000, 00 per month per child;
3. That the Appellant should pay 50% of all access (sic) payments in respect of reasonable medical, dental, pharmaceutical, hospital and ophthalmologic (sic) expenses (including contact lenses and spectacles) in respect of the aforesaid minor children;
4. The Appellant should pay all costs in respect of the minor children’s tuition, scholastic expenses, extra mural activities, books and stationery (including hostel fees) as well as school clothes for extra-mural activities;
5. The Appellant should pay 50% of all fees due to an institution for higher learning attended by the said children in the event of the minor children displaying an aptitude for higher education, together with all costs relating to books and equipment in respect of the course in question, which obligations shall continue for as long as the said children apply themselves with a due diligence and continue to make satisfactory progress;
6. The Appellant should forfeit the 1998 Ford Mondeo motor vehicle with registration number N83799W in favour of the Respondent;
7. That KPMG Chartered Accountants should be appointed as liquidators of the joint estate and their fees should not (sic) be paid out of the joint estate;
8. Cost of suit;
9. Further and/or alternative relief (sic).”
In this Court the appellant was represented by Mr Hinda and, although heads of argument were filed timeously on behalf of the respondent, there was initially no appearance on her behalf when the appeal was called. After a short adjournment, Mr Sarel Maritz appeared but indicated to the Court that even though he had attended to the preparation of the heads of argument, another counsel who apparently did not appear was briefed to argue the appeal on behalf of the respondent and that he, Mr Maritz, was not in a position to do so. It was apparent from Mr Maritz’s explanation that there was a regrettable - but nevertheless unacceptable - breakdown of communication between him and the legal practitioner who was supposed to argue the appeal on behalf of the respondent.
The appellant’s position was that the appeal should nevertheless proceed. Having heard brief argument from Mr Hinda and in the absence of an application or any good cause shown for a postponement, the Court decided to proceed with the hearing. Consequently, neither the respondent nor her legal representative further developed the arguments envisaged in the heads of argument filed on her behalf in the appeal. The Court has nevertheless had regard to them.
Two points in limine were raised in the heads of argument filed on behalf of the respondent and they may be disposed of shortly. The first point in limine concerns the alleged failure to lodge the record of appeal with the registrar within the prescribed period and to deliver the record of appeal to the respondent as required by Rule 5(5)(b) read with Rule (6)(b) of the Rules of this Court.
If I understand the argument correctly, it is submitted that by the time of the drafting of the heads of argument on behalf of the respondent, counsel could not ascertain whether the record of proceedings had been lodged with the registrar within the prescribed period, since no copy thereof had been delivered to the respondent.