Nandago v S (CA 111/2009) [2010] NAHC 109 (27 September 2010);

Group

Full judgment

105



CASE NO.: I 1823/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:



N S …..............................................................................................................PLAINTIFF



and



R A H …......................................................................................................DEFENDANT



Coram: Botes, AJ



HEARD ON: INTERMITTENTLY UNTIL 8 December 2010

ORDER DELIVERED ON: 08 APRIL 2011

REASONS PROVIDED ON: 21 APRIL 2011

________________________________________________________________

JUDGMENT

(Reasons)





BOTES, AJ

INTRODUCTION



[1] When I dealt with this matter in court, and when I again worked through the facts of the matter, in preparation of this judgment, I, due to the extent of the acrimony, that exists between the parties, the level of which I have never experienced before, could not, but otherwise think of the introductory paragraphs of Brassey AJ, in MB v NB1, which is clearly also apposite in this matter. As such I have decided to quote the following from the judgment.



Marriage is, typically, born out of such love and solemnised with such hope that its termination by divorce cannot but be tragic, but the death of this marriage, or at least the manner in which the last rights have been pronounced over it, represents a tragedy of an especially painful sort.

So much was rightly acknowledged by counsel for one of the parties and would, I think, have been evident to anyone sitting in court throughout the days, sometimes seemingly endless, when the evidence was presented, challenged and minutely examined in argument. I cherish no hope that this judgment will diminish the acrimony between the parties, for I suspect only time can do this; but, beyond settling the outstanding issues between the parties (which is off course my primary task), I do entertain the hope, vain though it may be, that what I say will reduce the risk of a repetition of this tragedy.”



[2] The trial herein commenced on the 23rd of November 2010 and continued until 8 December 2010. Thereafter I requested the parties’ legal representatives to provide this court with further evidence by way of affidavits from experts in Indian, as well as German law, in an effort to establish whether it indeed will be possible for any of the parties, if so ordered, to make the order that this court, eventually, will issue, in respect of the custody and control of the minor child concerned, an order of the courts in India and/or Germany. The parties also were requested to submit their submissions to this Court in respect of the access rights that they propose, this Court should afford the non-custodian parent in the event of the custody and control being awarded to plaintiff and/or defendant. The Registrar of this Court received the last of the relevant responses during January 2011.



[3] During the actual trial, both parties, as well as four expert witnesses testified and a substantial number of exhibits were received in evidence.



[4] The parties’ legal representatives, on request thereto by the court, also provided the court with heads of argument on the main issues in dispute. In this regard I would like to extend this Court’s sincere gratitude to the legal representatives for their assistance.



[5] It is common cause, due to the nature of the issues, in dispute, and more specifically the issue as to the custody and control of the minor child, as a result of plaintiff’s forced relocation to India, that one party most probably will become devastated by whatever order I make. It is evident from the opinions of the experts that both parties have a deep seated love and affection for the minor child, and that both parties have a bona fide desire to be awarded the custody and control of the minor child (under the present circumstances).



THE MARRIAGE AND CONSEQUENCES



[6] The plaintiff, an Indian national, married the defendant on 8 December 1997, in Calcutta, India. Although there originally existed a dispute between the parties as to the marital regime of their marriage, it has become common cause between the parties that the marriage, so concluded, was one of community of property. The defendant is a German national.



[7] The parties, immediately, after their marriage moved to Germany where the defendant was employed as a TV producer for Germany’s largest TV station. Although the plaintiff, originally, was unemployed during their stay in Germany, the plaintiff, being a duly qualified environmentalist obtained employment at Habitat, Energy, Application & Technology (HEAT), an international consultancy firm based in Germany. As a result thereof that plaintiff was seconded to GTZ Namibia by HEAT, the parties moved to Namibia in June 2002 where the plaintiff was so seconded. The defendant accompanied the plaintiff to Namibia as an accompanying spouse, on an accompanying spouse visa. It was decided and agreed upon between the parties, prior to their move to Namibia, that the plaintiff will be the breadwinner, as the defendant would not find work initially due to the nature of his visa.



[8] After their move to the Republic of Namibia, and while still being committed to the marriage, the parties, legally adopted the minor child, N , who was born on 10 March 2006, and who is of Damara origin. The adoption of the minor child was conducted, inter alia, with the assistance of Ms Waldi-Beate Kubirske, who recommended that the parties were suitable parents to adopt the minor child.



[9] At the time of the adoption, it was expected by both parties that they as expatriates would have to leave Namibia at some stage and return to India. As the defendant was not employed at the time of the adoption, it was decided and agreed upon between the parties that defendant would look after the minor child whilst the plaintiff remained at work.



[10] At the time of the adoption, N was undernourished and ill. In the efforts of the plaintiff and the defendant however, she recovered fully and is described by all four experts, who testified, as a healthy, intelligent and special child. This makes it even more unfortunate that she, at this point in her life, is faced with the current situation, which certainly will have an impact, not only on the plaintiff and the defendant, but also on N, in future.



[11] After the minor child moved in with the plaintiff and defendant, the parties had a full time live-in nanny and a gardener.



[12] During or about April 2008, the marital relationship between the parties deteriorated to such an extent that the plaintiff demanded divorce. The plaintiff instituted the divorce action against the defendant on 10 June 2008. Due to the acrimonious relationship between the parties, the litigation resulted in a lengthy, arduous and drawn out one.



[13] When the plaintiff demanded divorce during or about April 2008, she also, shortly thereafter locked the defendant from the marital home. Although disputed to some extent, it is evident from the evidence before me that the plaintiff became the primary caregiver of the minor child, since late April 2008, and the interim custodian parent, since 25 November 2008 by virtue of a settlement agreement, which was reached between the parties, and made an order of court, subsequent to an application for interim custody, brought by the plaintiff. 2



[14] The plaintiff, in her final amended particulars of claim, claims for the following relief against the defendant:



1.1 A final order of divorce on account of the defendant’s adultery; alternatively

1.2 (a) Restitution of Conjugal Rights and failing compliance therewith;

(b) A final order of divorce;

1.3 An order that the custody and control of the minor child be awarded to the plaintiff subject to the defendant’s rights of reasonable access;

1.4 Payment by the defendant of the amount of Euro 230,360.32, together with morae interest at the rate of 20% per annum, into the joint estate;

1.5 Alternatively, an order directing the defendant to render to the plaintiff an account of all the transactions from the joint estate for the period October 2002 to date, duly supported by proper vouchers;

1.6 A debatement of such account;

1.7 A division of the joint estate of the parties upon the debatement of account, subject to an adjustment in favour of the plaintiff;

1.8 Costs of suit

1.9 Further and/or alternative relief.”3

(my underlining and/or emphasis)



[15] The defendant defended the action and also counterclaimed. In his counterclaim the defendant prays for the following relief:



(a) (i) An order for the restitution of conjugal rights, failing compliance therewith;

(ii) A final order of divorce;

(b) A division of the joint estate;

(c) Forfeiture of the benefits deriving from a marriage in community of property;

(d) Custody and control of the minor the child be awarded to the defendant, subjected to plaintiff’s right of reasonable access;

(e) Further and/or alternative relief;

(f) Costs of suit.

(my underlining and/or emphasis)



[16] Having regard to the aforesaid, and the evidence produced during the trial, it is evident that the main disputes between the parties are:

(a) The cause of the breakdown of the marriage;

(b) Custody and control of the adopted minor child, born on 10 March 2006, taking into account the eminent relocation by plaintiff from Namibia;

(c) The dissipation of the joint funds of the parties by the defendant without the alleged knowledge or consent of the plaintiff;

(d) The division of the joint estate.



[17] During the protracted litigation, three rule 43 applications were brought. Two of these applications were settled between the parties and one filed by defendant was dismissed with costs by Muller J, on 16 July 2010. Apart from the aforegoing, the defendant also deemed it fit to launch two separate applications in an effort to obtain a protection order against the plaintiff in the Magistrate Court. The first application was brought on an ex-parte basis and a final protection order was granted on the 17th of July 2009. The other protection application was brought by the defendant during 2010 and a court order was made on 27 October 2010. The court order in fact was made by agreement between the parties and the nature thereof clearly displays and underpins the acquit hostility and acrimony between the parties.4



[18] I have decided to deal with the issues between the parties, as far as possible, separately, and in the sequence indicated hereinafter.



CAUSE OF THE BREAKDOWN OF THE MARRIAGE



[19] The plaintiff, as for the grounds of divorce, in her particulars of claim, alleges that the defendant, during the subsistence of the marriage between the parties, acted maliciously with the fixed intention to terminate the marriage relationship between the parties, in that :



(a)Defendant failed to communicate properly or at all with the plaintiff;

  1. Defendant failed to support – maintain his family at all, since he has only worked for a few weeks since 2001;

Defendant failed to support plaintiff emotionally;

Defendant does not show any interest in the continuation of the marriage;

On or about 18 April 2008, defendant left the common property and has not returned;

Defendant has alienated most of the savings of the parties, saving earned by plaintiff and alienated without her knowledge or consent;

Defendant committed adultery with one Margaret Kalo since December 2008.”



[20] Defendant, in his plea to the claim in convention, in esse denied the allegations. Defendant, however in his plea, admitted the adultery, but pleaded that the adulterous relationship could not have been the cause of the breakdown of the marriage as same was only entered into during December 2009. Although not originally contained in his plea, the defendant at the beginning of the trial, asked for the amendment of his plea to incorporate a prayer for the condonation of his adulterous relationship. This amendment was not opposed and therefore granted.



[21] The defendant, in his counterclaim, alleges, in respect of the breakdown of the marriage that the plaintiff, during the subsistence of the marriage relationship, between the parties, with the settled and determined intention of terminating the marital relationship between the parties, acted as follows:



1. Continuously solicited quarrels and arguments with the defendant, and to such an extent that the plaintiff was unable to properly communicate with the defendant.



2. Failed to properly care for and support the minor child.



3. Continuously belittled the defendant and to such an extent that the plaintiff was unable to properly communicate with the defendant.



4. On 17 April 2008, changed the locks of the common home and the code to the security gate in order to prevent the defendant from entry to the common home.



5. Refused the defendant any access to the common home, and refused him any access to his personal belongings.



6. Informed the defendant in so many words that she was no longer interested in the continuation of the marital relationship and that she has instructed a lawyer in Germany to commence with divorce proceedings against the defendant.



7. Verbally and emotionally abused the defendant and the minor child.



8. The plaintiff conquently maliciously and/or constructively deserted the defendant with which desertion she persists with.”



[22] Both parties in their testimony in court presented evidence on the grounds reflected in their particulars of claim. Most of the time in court however was utilised on the question as to the dissipation of the funds of the common estate by the defendant, without the permission of the plaintiff, as well as on the aspect of the custody and control of the minor child.



[23] This is understandable in the present circumstances, as it is evident from the evidence, that the parties’ marriage is at an end and there exist no hope of reconciliation between them at all. In these circumstance no real reason exists why a restitution order and/or the granting thereof can have any impact on the future relationship between the parties.



[24] At the beginning of the trial, I, in chambers, during a meeting with the party’s legal representatives, requested them to obtain instructions from their respective clients to ascertain whether the parties, in the circumstances, will not be amenable to agree that the court, due to the facts, and the law applicable, can issue a final order of divorce on the grounds of the defendant’s adultery by agreement between the parties. However, it seems, as a result of the acrimony that existed between the parties, no agreement was reached.



[25] I am of the opinion that the parties, if correctly guided by their legal representatives indeed would have seen the ultimate benefit of such an agreement as same would not have had any influence of whatsoever nature on any of the other claims made by the parties in the litigation, as it is common cause that the plaintiff contributed substantially more to the joint estate than defendant. Plaintiff, in her pleadings, however did not request the court to grant a forfeiture order in her favour. Although the defendant prayed for a forfeiture order same, due to his significant lesser contribution to the joint estate, would have had no effect in practice at all.5



[26] It is trite law that there are four grounds of divorce in our law, i.e. adultery; malicious desertion; incurable insanity, which has existed for not less than seven years and imprisonment for five years after the defendant’s spouse has been declared a habitual criminal. The last two grounds are based on statute whilst the first two grounds are based on the common law. 6 Desertion can take the form of actual, as well as constructive desertion.



[27] Our law of divorce, still being based on the common law, which in my opinion is completely outdated, is based on the “guilt” principle and not on the principle of the “marriage breakdown”. As can be seen, adultery is a ground of divorce at common law. The plaintiff, in her particulars of claim, requests a final order of divorce on the basis of the defendant’s adultery. The defendant, on his part, admitted the adultery, but pleaded that same was not the cause of the breakdown of the marriage as same only occurred from December 2009 onwards, and in the further alternative requested the court to condone his adultery.7



[28] In respect of the defences to a claim for a final order of divorce, based on adultery, the learned author, HR Hahlo, states that:



Defences, other than mere denial, which a defendant may plead to an action for divorce, on the ground of adultery are: insanity; mistake; adultery on the part of the plaintiff; condonation; connivance; collusion and (quaere) prescription.



The following do not constitute good defences to an action for divorce on the grounds of adultery:



(i) that the defendant was seduced;

(ii) that the plaintiff was absent for a long time;

(iii) that the plaintiff, without good reason, refused to afford the defendant the marital privileges;

(iv) that the plaintiff treated the defendant with cruelty;

(v) that the adultery took place after the plaintiff has maliciously deserted the defendant. Thus, where the wife was the culprit, it is no defence for her to show that she was driven from her husbands home by his cruelty, or that her husband left her destitute and that she committed adultery in order to relief poverty;

(vi) ........;

(vii) ........;” 8

(My underlining and/or emphasis)



[29] It is evident from the authorities referred to by the learned author Hahlo that the principles alluded to hereinbefore, form part of our common law and therefore, although in principle, outdated, have to be followed by this court in the absence of any legislative intervention.



[30] The defence therefore raised by the defendant, to the plaintiff’s claim for a divorce on the grounds of his adultery does not constitute, in terms of our common law, a good defence. The only question that now remains, is to whether this court, in the exercise of its discretion, is to condone the defendant’s adultery, as prayed for by the defendant in his plea.



[31] In respect of condonation it is trite law that a court has a discretionary power to condone a party’s adultery. This, according to the learned author Hahlo, holds true both of an action for divorce on the ground of adultery and an action for restitution of conjugal rights, failing which divorce.9 In this regard, it is accepted that “there are two main considerations which will influence the court in deciding whether the plaintiff’s adultery should be condoned; the respective blameworthiness of the parties; and ‘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 insists on maintenance of a union which has utterly broken down’.



Under the first heading, the court will consider whether the moral guilt of the spouses is so disparate that the plaintiff cannot be said to be in equal guilt with the defendant (in America, the test is frequently referred to as the “comparative rectitude test”). Under the second heading the court will consider facts such as the interest of the children of the marriage, the possibility of reconciliation between the spouses, and the interest of the plaintiff and his paramour, with special regard to the prospect of the their marrying respectively if the marriage between the plaintiff and the defendant is dissolved.



The court is in no way fettered in the exercise of its discretion. It may condone the adultery of a plaintiff who is actually living in adultery at the time of the action. At the same time, “the exercise of the court’s discretion..... is not a bare formality. The court must be satisfied that it is in the public interest that its discretion should be so exercised....”



[32] It is evident from the evidence presented by both parties, that both are to blame for the breakdown of the marriage. None of them, on the facts presented in court, can rightfully say that she or he is innocent and did not contribute to the demise of the marriage. The pot therefore is not in a position to call the kettle black. As such, on the facts before me, it cannot be said that the defendant is not at least in equal guilt with the plaintiff in respect of the demise of their marital relationship.



[33] Having regard to the acrimony between the parties, the fact that they cannot stand each other, one cannot but conclude that, it certainly is in the public’s interest, the interest of the parties, as well as in the interest of the minor child, N, that the marital relationship between the parties be immediately terminated.



[34] As such, I have decided not to, in the exercise of my discretion, condone the defendant’s adultery and to issue a final order of divorce based on defendant’s adultery.



THE DIVISION OF THE JOINT ESTATE





[35] As already stated hereinbefore, the defendant, whom, it is common cause on the evidence produced in court, contributed significantly less to the common estate of the parties during the existence of the marital relationship, incorporated a claim in his particulars of claim for the forfeiture of benefits derived from the marriage in community of property. The legal position in respect of the practical consequences of an order for forfeiture and/or division, which in my experience is not correctly applied by many legal practitioners in Namibia, is succinctly described as follows:



Whereas an order of division, (or no specific order) means equal division, irrespective of the amounts contributed to the joint estate by husband and wife, an order for forfeiture of benefits may mean equal or unequal division, depending on whether the defendant or the plaintiff has contributed more to the common fund, for an order of forfeiture, even if this is not expressly stated, amounts to an order for division of the joint estate, coupled with an order for forfeiture of the benefits which the guilty spouse has derived from the marriage. Since the order does not effect benefits which the innocent spouse has derived from the marriage, the estate will be divided in equal shares if the guilty spouse has contributed more to the joint estate than the innocent one, there be nothing on which the order for forfeiture could operate. If the contributions of the innocent spouse exceeded those of the guilty one, the guilty spouse will be deprived of the benefits which he has derived from the marriage. As Schweiner J. put it in Smith v Smith,



What the defendant forfeits is not his share of the common property, but only the pecuniary benefits that he would otherwise have derived from the marriage…. It in [the order for forfeiture] is merely an order for division plus an order that the defendant is not to share in any excess that the plaintiff may have contributed over the contributions of the defendant.’



In old law the court would order that the guilty spouse forfeit the whole or part of his or her own contributions to the marriage. This is absolute in modern law, where only the excess of the plaintiff’s contributions over those of the defendant is liable to forfeiture.”10

[36] Even if this court, after consideration of all the evidence therefore came to the conclusion that the plaintiff was the guilty spouse, a forfeiture order issued in favour of the defendant would serve no purpose. As such, and having come to the conclusion that a final order is to be granted on the grounds of the defendant’s adultery, it is not necessary for me to decide on the guilt of the respective parties. It is therefore ordered that the estate should be divided.



[37] Apart from the evidence produced during the trial, on the dissipation of the funds of the joint estate by defendant without the consent of the plaintiff, no further evidence from which the value of the estate and/or the extent of the joint estate can even be remotely inferred, was produced. No discovery to that extent had been effected.



[38] It is trite law that a court, depending on the circumstances, has a discretion to decide whether it should, itself, determine the value of the joint estate or the court may appoint a liquidator to do so. After the hearing of the matter during December 2010, I requested the parties to indicate whether they would be able to amicably agree on the division of the joint estate or not. Not surprisingly, due to the acrimony that existed between the parties, it became clear from the responses of both parties that it is not really a possibility.



[39] As this court, itself, in the light of the absence of evidence in this regard, is not in a position to readily determine the distribution, I in these circumstances have no other option available but to appoint a liquidator to do so. As such, the parties is granted a period of fourteen days after the date of the delivery of this judgment to agree on the liquidator to be so appointed, failing which the President of the Law Society of Namibia is directed to appoint a suitable qualified liquidator, in consultation with the respective legal practitioners of the parties.



[40] No evidence was placed before this court in respect of the date on which the value of the joint estate must be calculated for purposes of the distribution thereof. Although it is normally regarded that the date of the issue of the degree of divorce also is the date upon which the value of the joint estate is to be calculated, same is not applicable where the spouses have lived apart for a substantial period of time before their divorce. In such circumstances, it has been decided that the spouses’ accumulations since the date of separation must be regarded as prima facie separate contributions and/or income earned. 11



[41] It is common cause between the parties that the “final” separation between them already occurred on or about 18 April 2008. As from that date, the parties lived separately and both of them accumulated income and purchased property from the income so earned after separation, until the date of divorce. As a result of the fact that the parties lived apart for a period of approximately three years, since the date of their separation, it is ordered that the date of separation is the date of the determination of the joint estate’s value.

[42] This approach, coupled with an order that the liquidator in accessing the value of the joint estate, as on the date of separation, must also take in consideration the monies and/or funds that were dissipated by the plaintiff as well as the defendant from the common estate before or after the date of separation without the permission of the other party, in arriving at the entitlement of the respective parties in respect of the division of the joint estate, will be just and equitable between the parties. On the defendant’s admissions the amount that he so unauthorizedly dissipated is at least the sum of Euro125,000.00.



DISSIPATION OF THE FUNDS OF THE JOINT ESTATE WITHOUT THE PERMISSION OF THE PLAINTIFF



[43] The plaintiff in her further amended particulars of claim alleged that:



11. During the subsistence of the marriage, the plaintiff invested the following accounts, in joint accounts opened in the names of the plaintiff and the defendant, alternatively in accounts opened in the name of the defendant;



11.1 Deutsche Bank, Frankfurt, Acc. No. 348721- Euro 282,615.00;

11.2 Postbank, Frankfurt, Acc. No. 3200804402 – Euro 10,080.00;

11.3 Standard Bank, Windhoek, Acc No. 246319380 – Euro 112,800.00;

(hereinafter referred to as the “joint counts”).



12. During the subsistence of the marriage, and in particular, between October 2002 and June 2009 –



12.1 The defendant has had sole administrative control and access to the joint accounts and the plaintiff had no access to the funds contained in these joint accounts;



12.2 the defendant, without the knowledge and consent of the plaintiff withdrew a total amount of Euro 230,360.32 from the joint accounts and invested these funds in various investments in his own name.



13. Notwithstanding the plaintiff’s demand for repayment of the amount of Euro 230,360.32 to the joint accounts, alternatively to the joint estate of the parties, the defendant refuses and/or neglects to do so.



14. In the alternative, despite the defendant’s obligations to do so, the defendant has failed to render to the plaintiff an account of the monies withdrawn without her consent and knowledge from the joint accounts for the period referred to above.”



[44] As a result of this claim, the plaintiff claims the following relief from defendant, to wit:-

4. Payment into the joint estate by the defendant of the amount of Euro 230,360.32, together with morae interest at the rate of 20% per annum;



5. Alternatively, an order, directing the defendant to render to the plaintiff an account of all the transactions from the joint estate for the period October 2002 to date, duly supported by proper vouchers.



6. A debatement of such account.



7. A division of the joint estate of the parties upon the debatement of account, subject to an adjustment in favour of the plaintiff.”



[45] In respect of this claim, the defendant, in his further amended plea, inter alia, stated the following:



18.1 The allegations herein contained are denied as if specifically traversed and the plaintiff is put to the proof thereof.



18.2 It is repeated that the defendant withdrew a total amount of approximately Euro 125,000.00 which was monies to which the defendant is also entitled to, had contributed significantly towards, and which the defendant withdrew due to the fact that the plaintiff prohibited the defendant from the common home and denied the defendant access to many of his personal belongings in such common home and because the plaintiff threatened to dispose of many of the defendant’s personal belongings in the common home at the time, which the plaintiff then did subsequently dispose of, leaving the defendant with no alternative but to withdraw monies from such accounts out of necessity and in order to sustain himself and the minor child.



18.3 The defendant further pleads that he was entitled to have made such withdrawals referred to above by virtue of the following



18.3.1 All the investments referred to are mutual funds to which the defendant has also made a substantial contribution, especially since and when the parties were living in Germany and at the time when the defendant was the main source of income.



18.3.2 The plaintiff receives an “Ausland (foreign) Allowance” of approximately EUR 2 000.00 per month extra and in addition to her basic salary.



18.3.3 The plaintiff refused the defendant access to the common home when she changed the locks and code to the security gate and in order to be able to survive, the defendant had no alternative but to withdraw from the mutual funds and did not withdraw monies from funds exclusively the property of the plaintiff.



18.3.4 The minor child was, after the defendant was locked out of the common home, in the custody and care of the defendant and in order to properly look after and care for the minor child the defendant was obliged to obtain sufficient funds for accommodation and otherwise, in order to sustain and care for the minor child and himself.



18.3.5 The defendant has never had sole administrative control of any accounts with the exception of the Frankfuter Fund Bank account which was opened in the defendant’s name with the plaintiff’s knowledge and consent due to difficulties for a non-EU resident in opening an account with the Frankfuter Fund Bank.



18.3.6 For all other accounts the plaintiff was issued her own personal set of bank cards, PIN numbers and access codes.



18.3.7 Plaintiff has blocked access by the defendant to her Standard Bank account in Namibia, to which the defendant had full access, as well as access by the defendant to the joint German Deutsche Bank account, before she even learnt of any of the Defendant’s withdrawals.



18.3.8 Plaintiff refused to pay the defendant maintenance and vowed to “dry him out”.



18.3.9 In April 2010, plaintiff blocked the Suezmax Ship Fund, in reaction to which the plaintiff withdrew the remaining amount of approximately Euro 42,000.00 from the Frankfuter Fund Bank Account (a portion of the approximate Euro 125,000.00 pleaded supra) in fear of the Frankfuter Fund Bank account also being blocked by plaintiff, this being the last account the defendant was able to use to sustain himself.



20.2 The defendant pleads that any refusal to account for monies so withdrawn was done at a point in time when the plaintiff maintained that the monies the defendant had access to were held by virtue of the marriage being one of community of accrued gains according to the German Civil Code of 1896, therefore disentitling the plaintiff to rely on the Married Persons Equality Act of 1996.



20.3 Plaintiff knew of the amount of monies so withdrawn, had threatened and tried to block any funds the defendant may have had access to, entitling defendant to do so out of necessity and in order to ensure he had funds available.



20.4 Alternatively, defendant pleads that the monies so withdrawn constituted savings which he had earned, irrespective of whether the funds were or were not held in a joint account.



20.5 Without derogating from the above it is once again pleaded that, as the spouse who has sacrificed his career in Germany in order to further the plaintiff’s career in Namibia and in doing so was without any gainful employment or regular income for most part of the period that the parties have resided in Namibia, and as the spouse that was locked out of the common home and forced to sustain himself, defendant was forced to withdraw any monies that were so withdrawn out of necessity and to survive.”

(My underlining)



[46] It is common cause from the facts advanced in evidence that the defendant has, since the marriage of the parties been entrusted with the parties’ finances and was in total control of same. The plaintiff’s monthly salary of approximately N$55,000.00 was, since the parties moved to Namibia, transferred to the parties’ joint account in Germany at Deutsche Bank. Although both parties had their own credit cards for utilisation of the funds in the Deutsche Bank account, the defendant managed and administered this account. This account, according to the evidence, was initially the defendant’s own account, and became the parties’ joint account after the marriage.



[47] An “Auslands” allowance of Euro 2,000 per month was paid into an account opened by the plaintiff at Standard Bank, Windhoek. The said account was in the plaintiff’s name, but defendant, at all material times, had full access, inclusive of his own ATM card and pin number, to the Standard Bank account, until June 2008 when plaintiff blocked defendant’s access.



[48] During June 2008, and after plaintiff established that the defendant, without her consent and knowledge, withdrew funds from both of these accounts, plaintiff blocked defendant’s access to the Standard Bank account and furthermore requested, in respect of the Deutsche Bank account, that the account forthwith be conducted with joint signatory power with immediate effect in June 2008.12



[49] The defendant, in his plea, as quoted in length hereinbefore, admits that he transferred an amount of Euro 125,000.00 from the respective accounts. It is evident from the defendant’s plea, as well as the evidence adduced in court by defendant, that these withdrawals were effected without the plaintiff’s knowledge and consent. The plaintiff, in her evidence said that she trusted the defendant blindly with the finances, as he was good in administering same.



[50] As a result of the plaintiff’s lack of knowledge as to the purpose of some of the investments, as well as the nature thereof, especially the investments in the private equity fund and the ship fund, this court, on the facts cannot establish with any certainty as to what the correct amount is that defendant withdrew from the common estate of the parties, without plaintiff’s knowledge. This court, also, as indicated hereinbefore, do not know what the extent of the joint estate was, on the date of their separation. It is therefore impossible for this court to conclude whether the defendant, in effecting the removal of the funds from the joint account held by the parties, laid his hands on more than half of the joint estate of the parties to which he is entitled in law.



[51] As a result of all these uncertainties, and for the reasons already alluded to hereinbefore, the court has decided to appoint a liquidator to liquidate the estate to establish the value of the joint estate on the date of the parties’ separation on the terms and conditions, already referred to in the judgment supra, as well as forming part of the order infra. This, therefore, will result therein that the liquidator will have to calculate the value of the joint estate of the parties, taking into consideration the value of the assets dissipated without authorisation by any of the parties before or after the date of separation, in the calculation of their respective entitlements in the division of the joint estate.



[52] As such, it is therefore not necessary to order the defendant to repay any specific amount into the joint account.



THE CUSTODY AND CONTROL OF THE MINOR CHILD



[53] Before I turn to deal with the applicable law and the evidence of the experts presented, it is necessary to first refer to the relevant background of the parties’ circumstances, as well as the adoption of the minor child concerned. The plaintiff, who was born on 10 December 1970, in Kampur India, where she lived until she was about three years of age, is an Indian citizen. In 1987 she moved with her parents to Deli, where she completed her schooling. Plaintiff studied at the University of Deli and completed a BA (Honours) Degree in Economics. In 1994, plaintiff went to the University of Cape Town for the Masters programme in NSC-MPHIL Environmental Sciences.



[54] The defendant is a German citizen, born in 1968 in Albstadt Germany. After finishing his abitur in 1988, he, from 1988 to 1990, was involved in social services at a hostel, which hosted difficult youngsters. From 1991 to 1993 Defendant studied journalism, political science and geography at the Free University of Berlin. He furthered his studies in political science in geography at the University of Cape Town during 1994 to 1995.13



[55] It was during this period, at the University of Cape Town, where they met and became romantically involved. Plaintiff and the defendant married in December 1997 in India, and as defendant found a new employment in Frankfurt, Germany, the parties moved to Germany where they lived in Frankfurt from 1998 to 2002.



[56] It was also during this period that the plaintiff, obtained employment with GTZ Proklima as a project manager with its head office based in Windhoek. As a result of this employment, the parties decided to uproot from Germany and move to Windhoek in June 2002. Their move to the Republic of Namibia, at that point in time was already known to be a temporary one, as it was expected that the project for which the plaintiff was employed will be completed during or about 2008.



[57] Defendant accompanied the plaintiff on an accompanying spouse visa, which originally precluded him from working in Namibia. He however from time to time obtained temporary work visas, which he used to earn an income, as a freelance journalist and producer of inter alia, documentary studies about Namibia.



[58] The parties, already prior to their marriage decided that they did not want children of their own. As they perceived themselves as socially conscious people, and decided that there are enough children in this world whom they can provide with a good home and love, who would otherwise not have the privilege, they decided to, when they are ready to be parents, adopt a child. According to the evidence of the plaintiff, it was always a dream of her to adopt. The defendant described this dream of her as a “mission”.



[59] Although it was originally the wish of the parties to adopt an Indian child, this wish came to an end when they first came in contact with N at the shelter where she was staying.



[60] Ms Kubirske was the social worker who was responsible for the adoption of the minor child. After Ms Kurbirske’s report was favourably received, by the Minister of Gender Equality and Child Welfare, the parties lawfully adopted N, on the 13th of August 2007.14



[61] When the child moved in with the plaintiff and the defendant she was under-nourished and ill. Ms Kubirske, in her evidence, indicated that she was in such a condition that they indeed feared for her life. Under the guidance and care of both parents, the child developed into a highly intelligent and special child, as described by the parties, as well as the experts that testified. The plaintiff’s stay in Namibia, unfortunately has ended, because the offices of her employer in Namibia closed, and she, as a result thereof, has to relocate to India where she is to continue with her employment with her current employer from an office to be established at home. Plaintiff’s temporary work permit is also directly linked to her employment in Namibia with her current employer. As such, the plaintiff has no choice, but in fact is compelled, to leave Namibia.



[62] The defendant is currently in possession of a temporary work visa, due to the temporary employment he obtained at One Africa Television, which is only valid until the 31st of March 2012. No evidence was produced in court as to whether the defendant intends to apply for the extension of the temporary work permit, or what the chances are that same will be renewed.



[63] Defendant, during or about December 2008, became romantically involved with one Maggie, a Namibian citizen, who is also employed at One Africa Television. Maggie and her adopted child, who is approximately the same age as N, from December 2008, reside with defendant. Defendant and Maggie are currently engaged in an adulterous relationship. Maggie, on the evidence before me, was, at the date of the hearing, also still married. Despite the fact that Maggie (Ms Kalo) was present during the hearing, she was not called to testify.



[64] It is trite law that the court, as the upper guardian of minors, is obliged to consider and evaluate all relevant facts placed before it with a view to decide the issue which is of paramount importance in custody and control disputes, i.e. the best interest of the child. As such, it is trite law that a court in these circumstances has extremely wide powers in establishing what is in the best interest of the child concerned, and furthermore that it is not bound by procedural structures or by limitations of evidence presented or contentions advanced by the respective parties.15



[65] In McCall v McCall16, it was stated that in determining what is in the best interest of the child concerned, the court must decide which of the parents is able to promote and ensure the physical, moral, emotional and spiritual welfare of the child. In this regard, it has been stated that the court is to inter alia, have regard to the following factors:



  1. the love, affection and other emotional ties which exist between parent and child and a parent’s compatibility with the child;

The capabilities, character and temperament of the parent and the impact thereof on the child’s needs and desires;

The ability of the parent to communicate with the child and the parent’s insight into, understanding of and sensitivity to the child’s feelings;

  1. The capacity and disposition of the parent to give the child the guidance which he/she requires, etc.17



[66] In all recent decisions, due to constitutional developments, the courts emphasize that parenting is a gender neutral function and that the assumption that a mother is necessarily in a better position to care for her child belongs to a past era.



[67] In this matter, the court however is not only tasked with a custody and control dispute, but also flowing from that, with the question as to the relocation of the child concerned, to India, being the country to which the plaintiff has to return. In this regard it is trite law that, as to the question of the relocation of a minor child, the child’s best interest is still of paramount consideration. What is in the best interest of the child, depends on the facts of the particular case.18



[68] In Jackson v Jackson, 2002 (2) SA 303 SCA, Scott JA at 318 E – I stated in respect of the legal principles applicable in the relocation cases, the following:



It is trite that in matters of this kind, the interest of the children is the first and paramount consideration. It is no doubt true that, generally speaking, where, following a divorce, the custodian parent wishes to immigrate, a court will not lightly refuse leave for the children to be taken out of the country if the decision of the custodian parent is shown to be bona fide and reasonable. But this is not because of the so called rights of the custodian parent; it is because, in most cases, even if the access by the non-custodian parent would be materially affected, it would not be in the best interest of the children that the custodian parent be thwarted in his or her endeavour to emigrate in pursuance of a decision, reasonably and generally taken. Indeed, one can well imagine that in many situations such a refusal would inevitably result in bitterness and frustration, which would adversely effect the children. But, what must be stressed, is that each case must be decided on its own particular facts. No two cases are precisely the same and, while past decisions based on other facts, may provide useful guidelines, they do no more than that. By the same token, care should be taken, not to elevate to rules of law, the dicta of judges made in the context of the particular facts and circumstances with which they were concerned.”



[69] Maya, AJA19, with regard to the factors, the court take into account, in cases involving the relocation of a minor, in a similar vein, stated the following:



[10] In deciding whether or not relocation will be in the child’s best interests the Court must carefully evaluate, weigh and balance a myriad of competing factors, including the child’s wishes in appropriate cases. It is an unfortunate legality of marital breakdown that the former spouses must go their separate ways and reconstitutes their lives in a manner that each chooses alone. Maintaining cordial relations, remaining in the same geographical area and raising their children together whilst rebuilding their lives will, in many cases, not be possible. Our Courts have always recognised and will not lightly interfere with the right of a parent who has properly been awarded custody to choose in a reasonable manner how to order his or her life. Thus, for example, in Bailey v Bailey, the Court, in dealing with an application by a custodian parent for leave to take her children with her to England on a permanent basis, quoted – with approval – the following extract from the judgment of Miller J in Du Preez v Du Preez:



[T]his is not to say that the opinion and desires of the custodian parent are to be ignored or brushed aside; indeed, the Court takes upon itself a grave responsibility if it decides to override the custodian parent’s decision as to what is best in the interests of his child and will only do so after the most careful consideration of all the circumstances, including the reasons for the custodian parent’s decision and the emotions or impulses which have contributed to it.’



The reason for this deference is explained in the minority judgment of Cloete AJA in the Jackson case as follows:20



The fact that a decision has been made by the custodian parent does not give rise to some sort of rebuttable presumption that such decision is correct. The reason why a Court is reluctant to interfere with the decisions of a custodian parent is not only because the custodian parent may, as a matter of fact, be in a better position that the non-custodian parent in some cases to evaluate what is in the best interest of a child but, more importantly, because the parent who bears the primary responsibility of bringing up the child should as far as possible be left to do just that. It is, however, a constitutional imperative that the interests of children remain paramount. That is the “central and constant consideration”.’



[11] From a constitutional perspective, the rights of the custodian parent to pursue his or her own life or career involve fundamental rights to dignity, privacy and freedom of movement. Thwarting a custodian parent in the exercise of these rights may well have a severe impact on the welfare of the child or children involved. A refusal of permission to emigrate with a child effectively forces the custodian parent to relinquish what he or she views as an important life-enhancing opportunity......



[12] It is also important that Courts be acutely sensitive to the possibility that the differential treatment of custodian parents and their non-custodian counterparts – who have no reciprocal legal obligation to maintain contact with the child and may relocate at will – may, and often does, indirectly constitute unfair gender discrimination. Despite the constitutional commitment to equality, the division of parenting roles in South Africa remains largely gender-based. It is still predominantly women who care for children and that reality appears to be reflected in many custody arrangements upon divorce. The refusal of relocation applications therefore has a potentially disproportionate impact on women, restricting their mobility and subverting their interest and the personal choices that they make to those of their children and former spouses. As was pointed out by Gaudron J in the minority judgment in U v U, the leading Australian case on relocation:



[I]t must be accepted that, regrettably, stereotypical views as to the proper role of a mother are still pervasive and render the question whether a mother would prefer to move to another state or country or to maintain a close bond with her child one that will, almost inevitably, disadvantage her forensically. A mother who opts for relocation in preference to maintaining a close bond with her child runs the risk that she will be seen as selfishly preferring her own interest to those of her child; a mother who opts to stay with her child runs the risk of having her reasons for relocating not treated with the seriousness they deserve.’



[13] While attaching appropriate weight to the custodian parent’s interest, Courts must, however, guard against ‘too ready an assumption that the [custodian’s] proposals are necessarily compatible with the child’s welfare’. The reasonableness of the custodian’s decision to relocate, the practical and other considerations on which such decision is based, the extent to which the custodian has engaged with and properly thought through the real advantages and disadvantages to the child of the proposed move are all aspects that must be carefully scrutinised by the Court in determining whether or not the proposed move is indeed in the best interest of the child.”

[70] And as King DJP in Van Rooyen v Van Rooyen 1999(4) SA 435 at 437 G-J and 438 A said:



Turning to the application for relocation, two preliminary issues arise. The first relates to the approach of the Court in matters of this nature. It is that there is no onus in the conventional sense. The court will evaluate, weigh and balance the many considerations and competing factors which are relevant to the decision whether the proposed change to the children’s circumstances is in their best interests. The Court will make an assessment on the particular facts as they concern these particular children; in other words it will apply individual justice in the sense that all relevant factors, even the mother’s fundamental right to freedom of movement, will be assessed in the context of these children’s best interest.



The second preliminary consideration is the motivation of the mother. Is she genuine in her belief that her children’s interests will be best served by a move to Australia or is she primarily influenced by vindictiveness and spite towards the father after what has undoubtfully been a hostile and antagonistic relationship during and after the marriage, centred after the divorce on the children? Because, if the mother is not bona fide, there is every reason to suppose that she will do what she can to frustrate the father’s access to his detriment and that of the children”.



[71] As already indicated hereinbefore, four experts were called to testify during the trial. In assessing their evidence, the court is alive to the fact that “expert opinion is not the mere conjecture, surmise or speculation of the expert; it is his judgment in the matter on fact. It is equally clear, that whilst in many cases a court needs and benefits from an expert’s opinion, the expert witness should not usurp the function of the court”. 21



[72] The evidence in this matter is voluminous and due to the acrimony between the parties, contentious. The pleadings and notices constitute five lever arch files, which excludes the discovered documents and those submitted in court as exhibits. The plaintiff and the defendant testified. Both of them testified for two court days each. Several experts provided reports that were discovered, but only four experts gave evidence during trial.



[73] I have decided to first deal with the expert witnesses who testified on behalf of the plaintiff and the defendant, relevant to the custody and control aspect before I turn to the testimony of the parties. As indicated, four experts gave written reports and testified during the trial. Ms Clair Hearne, a clinical psychologist, recommended that the minor child’s custody and control be awarded to plaintiff. Mr Annandale, a clinical counselling psychologist, recommended that the minor child’s custody and control be awarded to the defendant. Mrs Sandra van Schalkwyk, an “educational psychologist” recommended that the defendant be awarded custody and control of the minor child. A social worker, Ms Kubirske, who also initially assisted with the adoption of the minor child, recommended that the defendant be awarded custody and control of the minor child. As such, I accept, as submitted by both the plaintiff and the defendant’s counsel, that it is necessary to investigate the probative value of the expert evidence and determine which opinion should carry weight with the court in its ultimate decision.



[74] Ms Claire Hearne, a clinical psychologist of profession, after she evaluated both parties, compiled two reports, one on 2 October 2008, and one on 3 March 2009.22 Ms Hearne described her clinical impressions of both defendant and plaintiff as follows:



74.1 The defendant presents himself as a victim, which is underpinned by the contents of 30 to 40 emails that Ms Hearne received and perused.

74.2 The defendant is a passive aggressive person, who is more subtle and calculated.

74.3 The plaintiff is a volatile person, and she can be extremely offensive.

74.4 Plaintiff will not change as she “is what she is”, but at least you know what you get.

74.5 Defendant however has a dark side and there is no indication as what he will do next.



[75] Ms Hearne, conceded during cross-examination that her last report was compiled, approximately 18 months before the date of the hearing. Ms Hearne however indicated that she, prior to the trial, during an afternoon spent approximately a period of two and a half hours with the minor child. Part of it which was spent in the absence of the plaintiff and some of it thereafter in the presence of the plaintiff. In the absence of the plaintiff, the minor child continuously asked Ms Hearne where her mother is, and when the plaintiff came home the minor child spontaneously ran to her mother, and in her display of affection hugged and kissed her. Ms Hearne testified that the plaintiff should be awarded custody and control of the minor child, for inter alia, the following reasons:



(a) Although it is accepted that the concept is not cast in stone, Ms Hearne was satisfied that the plaintiff indeed was the primary caregiver and caretaker of the minor child.

(b) Plaintiff is a caring mother and her relationship with her child has, over time, become clearly loving and supportive. As such, the child is functioning well in this relationship and clearly understands the mother-child relationship that exists between the parties. This results therein that, at times, the minor child “gets what she wants” from plaintiff.

(c) Plaintiff and the minor child are comfortable with their relationship, and there indeed exists an intimate and loving bond between them.

(d) The plaintiff has provided a suitable support and secure system for the minor child, such as being present at school events, as well as arranging for activities such as swimming, dancing and horse riding.

(e) The minor child is of tender age and being with her mother is very important at this stage. Ms Hearne indicated that, between the years four to six, it is in the interest of a minor child, to be with the mother, if possible.

(f) The child, if she moves to India with the plaintiff, would most probably easily adapt, and the plaintiff is in a strong financial position, able to support the minor child and will be able to provide a suitable home and excellent education for the minor child. As such, it was testified that the maternal family of the minor child in India will also be able to provide the necessary support.



[76] Ms Hearne confirmed her previous observations as contained in her reports and furthermore indicated that N is a happy talkative and intelligent child who shows no signs of trauma, distress or abuse. According to Ms Hearne no signs could be detected, that the conflict and the acrimony between the parents have affected the minor child, and as such she recommended that in her opinion same should not be used as a factor when considering what is in the best interest of the minor child.



[77] Having regard to the date of her reports, Ms Hearne conceded that she did not investigate the suitability of the relocation of the minor child to India. As such, she indicated that in her opinion, the court should order that the circumstances in India be investigated. Ms Hearne, during cross-examination, conceded that her evaluation reports were not fresh reports, but testified that the personality triads that she observed in both parties had not changed.23 During her testimony, Ms Hearne indicated that she agrees with the report of Dr Sieberhagen, a psychiatrist, dated 10 November 2009, which was used in the rule 43 application brought in 2010, where Dr Sieberhagen provided the following useful observation of defendant:



However, Mr Höfelein’s habit of blaming others – his spouse, the psychologists and the system, and his seeming inability to accept any responsibility for his role in the disintegration of his relationship with his estranged wife is of some concern. In the event of him being granted sole custody and control of his adopted child, and a problem develops in the future, is he going to blame the system again? Does this person have the ability to accept responsibility for his own mishaps in life – a necessary quality if he intends to be a successful parent.”

(my underlining)



[78] According to Ms Hearne, the defendant is a good parent to the minor child and because of the fact that the defendant does not have full custody, he is regarded by the minor child as the “fun parent”.



[79] Ms Hearne testified that the defendant does not show his emotion openly, and display it in a rather converted and calculated manner. According to the evidence produced, Ms Hearne’s main motivation in disqualifying the defendant was that she was not sure of what defendant is capable of, describing him as a “dark horse”, and what the minor child could be exposed to should defendant be awarded custody. This opinion of Ms Hearne is to an extent corroborated by the portion of the report of Dr Sieberhagen, referred to hereinbefore. Although the defendant’s counsel, on various occasions, indicated in court that Dr Sieberhagen would be called to testify on behalf of the defendant, it eventually did not happen. No reason for this change of heart was advanced.



[80] Ms Hearne, in her evidence, was referred to the contents of the video and audio recordings, handed in as exhibits by the defendant, during the hearing. Ms Hearne, having seen some of the videos, and the emails provided by the defendant, testified that the parties clearly were unnecessarily antagonistic towards each other, although the antagonism was expressed in different ways.



[81] As to the allegation that the plaintiff would not comply with any access order made by this court, should she be awarded custody of the minor child and relocate, Ms Hearne testified that she doubts that the plaintiff would not comply with such an order because the plaintiff, in her opinion, is a honest and proud person, and as she travels for work, would not risk being reported for kidnapping.



[82] Mr Mouton, counsel for the defendant, in argument submitted, due to Ms Hearne’s “outdated reports”, the fact that she perceived the defendant as a “dark horse” and unpredictable, which were not contained in either of her reports, nor contained in the expert summaries delivered, in terms of rule 36(9)(b), and as she did not have any regard to a possible intended relocation by the plaintiff to India, that her unsubstantiated comments in this regard must be ignored especially since she also, in both her reports stated that:



This child has a great need for constant contact with both parents.”



[83] Ms Hearne, during cross-examination, indicated why she did not regard it prudent to include her perceptions of the defendant, as being a “dark horse” and unpredictable in her reports. The reasons so advanced are cogent and acceptable. Insofar as the criticism is directed at the testimony of Ms Hearne that she cannot comment on whether the relocating to India per se would be bad for N, she clearly did so because she did not investigate this aspect herself. She was not aware of the fact that the defendant’s expert24, nor the defendant himself, had no problem with India and the plaintiff’s ability to, properly care for the minor child whilst in India. The plaintiff’s evidence in this regard was never contested by defendant in his evidence in chief, nor during plaintiff’s cross-examination, by Mr Mouton. I have no reason to doubt that the defendant, if he was dissatisfied with the circumstances in India, which he is well acquainted with, in his quest for the custody and control of the minor child would have instructed Mr Mouton to challenge same in cross-examination.



[84] At the end of Ms Hearne’s evidence in chief she was shown photographs which the defendant took of the private parts of the minor child, whilst the defendant exercised his right of access, in an attempt to show that the private parts of the minor child were not properly clean.25 I closely observed the reaction of Ms Hearne when she opened the photographs. It was obvious, from her reaction, that she, not having seen the photographs before, was shocked by the explicit detail thereof. Ms Hearne testified that the taking of such photographs is clearly inappropriate and is indicative of the defendant’s unpredictable behaviour. Ms Hearne furthermore testified that the only other time she saw such photographs was in molestation cases.



[85] Mr Willem Annandale, a clinical counselling psychologist, testified on behalf of the defendant.



[86] The following aspects, in respect of his report can be highlighted. In his approach to the evaluation, he stated that the divorce and subsequent custody and control controversy has a long and tumulus history, and that the defendant started seeing him as a patient since 8 June 2009, seeking emotional support and a soundboard due to the turmoil. Defendant later requested, and Plaintiff agreed, to him, becoming officially involved to do a formal evaluation. It was agreed that Mr Annandale would conduct an impartial evaluation, without any preconceived ideas. He, in his report specifically undertook to refrain from perusing other reports from his previous evaluations, and not be influenced by those opinions.



[87] In respect of the defendant, Mr Annandale concluded that defendant has performed unusually well in the parental role with a good balance between being structured and being warm and neutering. He has a calming influence on N and shows empathy and insight regarding her needs. Defendant is somewhat of a perfectionist and likely to focus on smaller detail.



[88] In respect of plaintiff, he concluded that plaintiff is very warm and loving, committed to the cause of adopting children in need, and able to provide a life full of colour and excitement. She is likely to be quite authorative, less interested in smaller detail, and may become bored and frustrated with routines, which she is likely to outsource. She seems well equipped to balance her own needs and the requirements of a career with a role as parent.



[89] Mr Annandale, in his report indicated the following, which I have decided to quote verbatim –

Natasha is showing surprisingly little symptoms in [about the longstanding conflict between the parents]. Her physical, cognitive and emotional development is age appropriate and the deficits she had when she was adopted have been largely overcome. Both parents deserve credit for that – it is clear that they have both put in an enormous amount of effort and committed themselves emotionally, financially and practically.

N has a good self image and clearly receives a lot of affection. She has a strong bond with both parents, but perceives Neeta as the primary caregiver. The evaluation clearly indicated a strongly identification with her mother, in terms of total involvement, receiving and giving positive emotions, and dependence. Negative emotions were mostly directed towards the father.



The psychological evaluation indicated that both Ralph and Neeta are highly competent people and that both of them have the potential to be competent parents. They have had a very positive influence on N, who has a strong bond with them, although a substantially stronger bond with the mother.”

(My underlining)



[90] In respect of N’s cultural or religious environment, Mr Annandale indicated that the plaintiff expressed some criticism about defendant, being a white male, and therefore perhaps less able to provide N with what she needs. Plaintiff’s concerns according to Mr Annandale may actually be quite rational, and were even more pertinent soon after their separation, when it seemed likely that defendant would be returning to Germany and intended taking N with him, where race could possibly have been a complicating factor. In this regard Annandale indicated –



This scenario has now changed, with Ralph more likely to stay for an extended period in Namibia and Neeta soon to return home to India. Should N go to India with Neeta, she would in all likelihood be emerged in her mother’s Indian culture – in itself not a bad thing, and I found N to be very keen to go. There is however a strong case to be made out for a child not being alienated from her culture.



Ralph’s future is by no means clearly mapped, but it appears as if he is likely to stay in Namibia for at least two more years, perhaps longer. Neeta is definitely going back to India and unlikely to return to Namibia.

(my underlining)



[91] In respect of financial support, Mr Annandale concluded that, financially plaintiff has a clear advantage over defendant, but he did not regard that as a critical aspect since defendant is also able to support the minor child adequately.



[92] In respect of an adequate support system, Mr Annandale concluded that –



It would therefore be quite sad to remove N from this support system, which I would prefer not to happen, but I also have no doubt that either of them would be able to create another adequate support system elsewhere. My preference would be for N to stay in Namibia, but if the question was which parent would be best suited to provide a support system, somewhere else, I would vote for Neeta.” (my underlining)



[93] In respect of the role of the mother, especially in young girls, Mr Annandale concluded that (in this regard) the plaintiff has a slight advantage. According to him the plaintiff is a good mother and N, currently, has a stronger bond and identification with plaintiff, but that defendant is certainly not far behind and has already proven that he provides a very competent alternative.



[94] In respect of the aspect of not subjecting, the child to unnecessary moves, Mr Annandale indicated that, in the event of plaintiff taking N with her to India, that same implies another major change, as it is unlikely that N will see defendant again. According to Mr Annandale, plaintiff “has been refreshingly honest to me about this, and due to the very confrontational nature of their relationship, her desire to establish a new life, free from the issues surrounding the divorce, also makes sense, but I am not yet convinced that it is really in N’s best interest.”



[95] In respect of the importance not undermining the child’s image of the other parent, Mr Annandale indicated that he is afraid that the plaintiff made herself guilty of indoctrination, not only in a subtle way, but also in a very blatant active way. Mr Annandale however, in my view, correctly indicated that the versions that he had at his disposal could theoretically be circumstantial and wrongly interpreted, and may need to be tested in court. As such, he indicated that if this evidence should be corroborated that same should count very negatively against plaintiff as custodian parent. At this point in time, I already wish to indicate that this “evidence” was not corroborated in court by any other witness, except insofar as the video and audio recordings presented in court as an exhibit, showed some inappropriate behaviour by plaintiff directed at defendant whilst she was filmed and recorded. Some of these incidents took place in the presence of the minor child, which is unacceptable. One, however must not forget and lose sight of the fact that the defendant knew how to push the right buttons and certainly must have known how the plaintiff would have reacted if he arrives at her house, armed with a camera to provoke her and to be ready to record her behaviour. This was also conceded by Mr Annandale in his evidence in court. It however is further evident that the severe antagonism was directed by plaintiff at the defendant and not the minor child.



[96] In his summary and recommendations, Mr Annandale indicated that

N provided a very positive picture of both parents, seen through her eyes. N is currently more attached to Neeta, keen to go to India with her, and if she was the one who had to choose, I see a clear preference in favour of Neeta. She is however still extremely young and clearly unable to comprehend the full implications of permanently moving to India, or never see Ralph again. Her opinion does however carry some weight.

(my underlining)



While working through the complicated issue of the “best interest of the child”, it was clear that both parents were very capable and that the assessment was very even, perhaps slightly favouring the mother initially.



I have however decided to recommend Ralph as custodian parent, based to a large extend on two issues:-



  • The enormous scoped the changes likely to occur if Neeta gets custody

  • The extend to which Neeta has been antagonistic towards Ralph.



As I said before, I may not have all the relevant information on hand and my deductions may be proven wrong, in which case I would be willing to reconsider my recommendation, but if the court manages to agree with my view on the above two aspects, then I would urge the court to provide custody and control to Ralph, with access to Neeta.



I understand Neeta’s inclination and circumstances regarding return to India, but I am not convinced that there is no other choice. In comparison, it appears as if Ralph would also have a far more lucrative and stable career if he returns to Germany, but he seems quite content and motivated to try and make a decent living in Namibia, at least partly for the sake of N...... I do not regard Ralph as dysfunctional, and it does not seem to be in N’s best interest to be deprived of her father.”

(my underlining)



[97] In respect of Mr Annandale’s conclusion, it is to be noted that the defendant’s stay in Namibia, being only in Namibia on a temporary working visa, his ties with Germany and the fact that he can, according to the evidence, earn substantially more than in Namibia, cannot be regarded as permanent, and as such the real likelihood exists that the minor child, in any event will be removed from the jurisdiction of this court. This real likelihood is in fact confirmed in the body of Mr Annandale’s report.

[98] During his cross-examination Mr Annandale conceded that he has no problem with India and that he regards India as a first world country where the minor child could obtain proper education and that the plaintiff in India is able to provide a proper and adequate support system for the minor child. Mr Annandale also conceded that he, for his recommendations relied mainly on evidence provided by the defendant, his girlfriend, Ms Kalo, her adopted child Esther and friends of the defendant. The danger lurking in such an approach is evident and can easily result in an unintentional one sided approach to the matter. During his evidence, Mr Annandale, referred to an email, from one Marianne Nel, dated 13 October 2010. Mr Annandale, when originally referring to this email only read certain portions thereof in support of the allegation as to plaintiff’s antagonism towards the defendant. In the email, the following was inter alia also stated:



On one occasion when Aqeela, my daughter had a play date with N and Madelene, Ralph sent the Police and someone from Women Affairs over. N was hysterical and wanted to know by me why her father would not leave her mother alone. I tried to explain that sometimes grownups fight over silly things. She responded by saying that – ‘Pappa is the one fighting, not Mamma’. Although, initially I had a stronger bond with Ralph, his inability to take responsibility and constant bickering of Neeta (even a year later), despite being the first to move one, coupled with the fact that my daughter has a good friendship with N, eventually led to a rekindled friendship with Neeta. Ralph has not handled this very well as he expressed in a final letter and now avoids us when ever possible in public. Also, I could not see any evidence on N to back Ralph’s accusations of physical abuse and emotional manipulation by Neeta. N is a remarkable and outspoken young girl who is coping surprisingly well with all this chaos and has a firm character who is a good influence on my daughter.” (my underlining)



Mr Annandale, when originally reading this email, did not refer to this paragraph, but only read the entire mail when he was requested by the court to do so.



[99] As to Mr Annandale’s evidence, that the minor child is unlikely to see the defendant again due to the antagonism between the parties, and that plaintiff was refreshingly honest on the issue, Mr Annandale testified in esse that the plaintiff told him that she will not allow the defendant access and would exclude him from the minor child’s life. During questioning on this aspect Mr Annandale indicated that he made a summary of what was stated to him by the plaintiff during one of his consultations in this regard. The handwritten note of Mr Annandale (exhibit BBB) reads as follows:-



Create good impression, appears rational, loving, balanced. Makes him appear a bit weak, lazy and neurotic. Compromise unlikely due to fact that she will leave Namibia for India. States that he may be allowed to see her holidays, but actually wants to create a new family system, i.e. marry again, better to exclude him and (as with adoption), Nat can decide to reunite with him one day as an adult.”



[100] It appears from the contents of the aforesaid note that Mr Annandale was not informed by the plaintiff that the defendant would not see his daughter again. To the contrary in the summary made, of the consultation, it is clearly indicated that the plaintiff informed Mr Annandale that the defendant may be allowed to see the minor child during holidays. The evidence of the plaintiff to which I will refer hereinafter, as well as the opinion of Ms Hearne, also corroborates this.



[101] Mrs Nel’s email referred to hereinbefore underpins, not only the existing acrimony that exists between the parties, but also that the plaintiff was not the only one that antagonised the defendant in front of N. The defendant also made himself guilty of similar practices.



[102] The defendant also called Ms Sandra van Schalkwyk, who was involved in this matter in her capacity as a therapeutical (educational) psychologist whom conducted play therapy sessions with the minor child, for the psychological benefit of the child only.



[103] Ms van Schalkwyk, during cross-examination conceded that she conducted the consultations without obtaining the permission of the custodian parent as is normally required in cases like this.



[104] Ms van Schalkwyk’s involvement, on her own admissions, was not to provide an opinion as to whom of the parties should obtain the custody and control of the minor child concerned. Ms Van Schalkwyk however testified that N has a strong bond with both her father and mother, but that N perceives “her family” to be that of the defendant along with Maggie and Esther and that her play therapy results indicate that the minor child perceives the defendant as the primary caregiver. Ms van Schalkwyk further testified that N also regards Maggie as a mother figure, although, not with the exclusion of the plaintiff as her mother, but that N regard home as the residence of the defendant, along with Maggie and Esther. This confusion as to whom the real mother figure in N’s life is, to which the defendant seems to have contributed, is inappropriate, as said by all the other “experts”.



[105] Ms van Schalkwyk testified that her role was only to provide support to the minor child, not to evaluate her, and that she apparently never wanted to get involved with the divorce, but in the end was convinced by the defendant to provide a report to assist him in the obtaining of a protection order. Ms van Schalkwyk confirmed that she never consulted with the plaintiff, but testified to an incident where the plaintiff, having acted rude towards one of her secretaries, stormed out of her office with the minor child where she encountered defendant. In her evidence, in court, Ms van Schalkwyk, surprisingly testified that she actually did not see or hear what happened in the parking lot between the defendant and plaintiff. This is contrary to her report where she stated the following:-



She once again later harassed Mr Höfelein in the parking lot outside my practice, shouting the words ‘fucking liar’ at him and ran away with the child on her arm, was what actually took place.”



[106] Ms van Schalkwyk did not interact with the plaintiff and according to her evidence assessed a family relationship during a period of approximately twenty minutes, when the defendant, Ms Kalo and Esther came to request her assistance in the protection order. Her evidence, apart from what she has established during the “play therapy” sessions, which in part is contradicted by the evidence of Ms Hearne, as well as Mr Annandale, does not carry any real probative value as to the question of the custody and control of the minor child. Ms van Schalkwyk, in court, testified, after having had regard to the photographs taken of the genitalia of the minor child that for the purposes intended for by the defendant, it is not uncommon, but quite normal.



[107] Ms Waldi Kubirske, a social worker of 23 years of practical experience, who assisted the parties in the adoption of the minor child, testified that it will be in the best interest of the minor child, not to experience another loss/ abandonment which she might experience with the loss of the defendant, Maggie and her daughter, Esther, her kindergarten, her friends, etc, should she be taken to India, and that it would not be in her best interest should she be taken to India now.



[108] As regard to Ms Kubirske’s evidence, she admitted from the outset that her report dated 15 November 200926, was prepared on information provided by the defendant only. This was as a result of the plaintiff’s refusal to submit her to consultations with Ms Kubirske to be evaluated, due to a certain incident that occurred between the plaintiff and Ms Kubirske, whilst the adoption was still in progress. Her report and opinion therefore, in my view, for obvious reasons, does not carry much probative value.



PLAINTIFF’S EVIDENCE



[109] I now turn to the relevant portions of the plaintiff and the defendant’s evidence. As both of them testified for two court days each, it will be impossible to summarize the whole of their evidence. As such, I only will summarise the relevant portions thereof for purposes of this judgment.



[110] Plaintiff, in esse testified that she from the age of 8 years old decided that she one day is going to adopt a child. As such, she later on in her life decided that she never will have children of her own, as there already is enough needy children in the world.



[111] The defendant was her first man and after they met defendant indicated that he is happy with the idea of not having children of his own, and also would prefer to adopt a child. Plaintiff testified that as she is bad with money, she trusted the defendant blindly, and indicated that defendant indeed, according to her knowledge, was good in the handling of their financial affairs.



[112] Although it originally was her intention to adopt an Indian child, this idea evaporated when she, on one of her visits to an orphanage in Windhoek, met N. According to the plaintiff N clung on to her and did not want her to leave. As such, they decided to find out whether N can be adopted and was recommended to Ms Waldi Kubirske to assist with the adoption. Plaintiff further testified that during the adoption she became dissatisfied with the services of Ms Kubirske. They had an argument as a result of which she also reported Ms Kubirske to the relevant authority.27 It was as a result of this that plaintiff decided not to consent to a further evaluation by Ms Kubirske as she believed that Ms Kubirske would be biased.



[113] Plaintiff testified that when the minor child moved into their home, the defendant did nothing. As such, the defendant did not assist in the preparation of food and other household chores pertaining to the minor child, although they had a full time nanny who looked after the child.



[114] According to the plaintiff, the defendant, in her own words, “ did not move a limb in the house” and faulted everything. Plaintiff testified that she did everything to get the defendant to change his ways and to assist her with the upbringing of the child and the daily chores involved when she returned from work, but to no avail. Plaintiff frankly admits that she did, on two or three occasions, slapped the minor child when she became overwhelmed by the circumstances. Plaintiff testified that she realised that she was wrong and requested the defendant to forgive her in this regard. This is contained in one of the emails that form part of the record.



[115] Plaintiff testified that when the adoption was in progress, to the knowledge of Ms Kubirske, the parties’ aim was to leave Namibia in 2008 for India. Ms Kubirske confirmed this in her evidence. According to the plaintiff, her whole family structure is in India. Her mother and father, as well as sisters are residing in India and she therefore has a stable supportive structure there. In respect of the care for N, it was indicated that she, during the first year will primarily work from her home and as such will be able to look after N herself on return from kindergarten, and if need be, will be supported by her family members.



[116] According to the plaintiff, she already has two options for the schooling of N in India in kindergarten. Two letters handed in during her evidence corroborated this. According to her testimony, she has no choice, but to leave Namibia for the reasons already stated hereinbefore.



[117] The plaintiff testified that if she is granted custody and control, and relocate with N to India that she will give the defendant all the access that he wants to have if he wants to visit and that she also will allow the child to travel to Namibia. Plaintiff furthermore testified that she and the defendant, during their marriage, together went to India once every year. As such, the defendant is well acquainted with the background of her family, as well as the support system available in India.



[118] The plaintiff testified that she wants N to have contact with her culture and will encourage N to investigate same. The plaintiff further testified that she was not in India for the past three years as the defendant prevented her to travel for holiday purposes, to India, with the minor child.



[119] Plaintiff also testified about the occasions it was alleged that she abandoned the minor child. What is obvious from the evidence however is that it will serve no purpose to put a term on these alleged incidents, the nature of which is in dispute between the parties, as all these incidents flowed from the acrimonious relationship that existed between the parties and their behaviour during these incidents. The plaintiff testified that she, after the minor child was left with her in her house during April 2008, decided to apply for interim custody and control. As already stated, hereinbefore, plaintiff admits that she did, on approximately two occasions, apart from hitting the minor child on her buttocks, also slapped her in the face. Plaintiff however denies that she ever pushed a nappy in the face of the minor child as a manner of potty training. The plaintiff testified that she is what she is and testified that although they have an antagonistic relationship, that she believes that the defendant is not a bad person. She however also testified that when N returns from her visits to defendant that she will say to her that the defendant said that she (plaintiff) has crooked teeth and that she is a bad person.



[120] Plaintiff confirms that, on several occasions when defendant came to collect N, he was armed with a video camera, which to his knowledge severely provoked her. As such, it seems that plaintiff decided to provide the defendant with what he wanted.



[121] According to the plaintiff she and N are very close, exceptionally happy and that she (plaintiff) love N “to bits”. Plaintiff testified that a week to ten days before the trial, Ms Angula, her instructing counsel, called her to her office and showed her the explicit photographs (explicit in the sense that a child is requested to expose her most vulnerable inner self to a photographer on several occasions without a acceptable reason thereto) of N, which the defendant took of the child’s private parts. At this point, the plaintiff got very emotional and broke down. She indicated that the defendant did not inform her that he took such photographs.



[122] Plaintiff testified that N, at one stage, had a slight infection, as a result of which the plaintiff took her to a general practitioner.



[123] Plaintiff further testified that, shortly after they took the minor child into their home, and whilst the child was lying naked on the bed, sleeping, the defendant took a photograph of the minor child. Plaintiff, according to her got upset, cried and wanted to know from the defendant what his reason therefore was. Mr Mouton, during cross-examination, put to plaintiff that the defendant did so because he wanted to keep the photograph so taken to remind them as to how the minor child looked when she first arrived at their house with her “pot-belly” due to her undernourished state.



[124] During cross-examination of the plaintiff, Mr Mouton established that, shortly after the defendant left the common home, the plaintiff attempted to get him to be removed from the country by revoking his visa.28



[125] It also was established by Mr Mouton during cross-examination that the defendant alleges that some Euro 28,000-00 was transferred to India to acquire an interest, in it seems, the plaintiff’s aunt’s flat in Deli. This was apparently done by agreement between the parties, according to the plaintiff, to provide for their extensive annual holidays in India.



[126] In respect of the protection orders obtained by defendant against plaintiff, it was established that one was issued, as is evident from the papers filed of record, on an ex parte basis. Plaintiff testified that her legal advisors advised her that, although she did not agree with most of the contents thereof, she should not oppose same. The second protection order was opposed and resulted in an agreement entered into between the parties.



[127] In respect of the plaintiff’s upbringing methods of N, it was put to her that the slapping of N occurred on “numerous occasions”. Plaintiff denied this allegation and testified that it happened approximately twice. Plaintiff also was accused of rubbing the minor child’s nose in the urine on the floor which practice reminded defendant of the treatment by plaintiff of a dog that she also had. The plaintiff denied this contention. According to the plaintiff, prior to the adoption, she and the defendant had their share of trouble and their relationship was not without its frustration. She however would not describe it as being a disaster except that she could not do anything right in defendant’s eyes. It however was put to plaintiff that defendant will testify that their marriage was all very well until N came.



[128] When asked during cross-examination on why she, during 2008, had a change of heart in respect of the custody and control of the minor child, after she previously indicated to defendant that he can take the child to Germany and in effect allowed the child to be removed from the common home, plaintiff responded that when N started to cry and cling to her when defendant wanted to exit the house, she realised that she have to fight for the custody and control of the minor child. According to Mr Mouton defendant alleges that she on that specific day removed N from him with force, which was denied by plaintiff, who indicated that it indeed would have been impossible due to the fact that defendant is much stronger and bigger than her.



[129] In respect of the explicit photographs taken, it was put to the plaintiff by Mr Mouton that as N complained about an itching in the vicinity of her private parts, the defendant and Ms Kalo, after examination, established that her private parts were not properly clean. As such, the photographs were taken as they “felt something was wrong”.



[130] The plaintiff in her testimony made a good impression on the court. She was not evasive in the answering of the questions and she also showed genuine remorse when she testified to emotional aspects, which will be of concern to any caring mother. It was also evident from her demeanour in court that she has an offensive personality. After having had the opportunity to observe her in court throughout the trial, as well as in the witness box for a period of approximately two court days, I am in agreement that the plaintiff indeed has the attributes and personality as testified to by Ms Hearne and to an large extend also corroborated by Mr Annandale.



DEFENDANT’S EVIDENCE



[131] The defendant testified that he and the plaintiff had a good relationship until after N came from the orphanage. According to defendant plaintiff then changed as she was strange and radical, whilst the defendant tried to remain calm. The plaintiff would slap the minor child, at least three times a day. That was how the plaintiff indicated she was raised. When the child urinated on the floor, the plaintiff would push her face into the urine. Plaintiff also pushed soiled pampers into her face. Defendant furthermore testified to the problem that they have experienced with the adoption and also related to the fallout which the plaintiff had with Ms Kubirske. According to defendant’s evidence, the plaintiff wanted to take N back to the orphanage, but he, however refused to do so as he insisted that it was their child and said to plaintiff that she cannot be returned like a coffee machine. This version of the defendant like many other versions, he testified on, was not put during cross-examination to plaintiff to deal therewith. Defendant testified that he had his occasional jobs, that he looked after and took care of N, that he took her out to meet other children and that he in general was the person who took care of her. This also was not put to the plaintiff to deal therewith in cross-examination.



[132] In respect of the incident where the plaintiff allegedly forcefully removed the minor child from defendant, as was put to the plaintiff in cross-examination, defendant testified that the plaintiff whilst holding on tight to the minor child indicated to him that the defendant is not going to leave with N. Plaintiff then, apparently realising that he is not going to concede to her request, whilst putting her arms around the minor child started to scream for help. The defendant then decided to leave. This version contradicts plaintiff’s original version as to the forceful removal of the child.



[133] In respect of the first protection order, defendant testified that he did so on advice of his then lawyer as he had to defend himself and also because plaintiff maltreated N which maltreatment started from the period that N arrived.



[134] Defendant also testified as to why it was necessary to involve the assistance of the police on two occasions in an attempt to get the plaintiff to strictly adhere to the times set for his visitation rights. The defendant furthermore testified at length as to the recommendations made to and by the parties in respect of the appointment of psychologists and/or even psychiatrists to assess the parties, as well as the plaintiff’s and/or her legal practitioners answers to these requests. In this regard, defendant testified that after Ms Hearne’s first report, he followed up her recommendation because he did not understand it. Defendant said that he did not understand how Ms Hearne could describe the plaintiff as the primary caregiver as he did not work, cared for the child and according to him, the plaintiff took the child from him with force. The defendant also dealt with exhibit X, being an email addressed to the plaintiff’s sister, dated the 25th of August 2008. Paragraph 4 of the email reads as follows:-



However, unless it could be “proven without doubts” that Neeta is psychological compromised to an extent that it would harm the child, I might as well loose N to Neeta anyway. In eight out of ten cases where the assessors ”merely recommend” that the child should stay with the father, the judges gives it still to the mother. A lot would also demand on which judge is dealing with our case, whether it is a more liberal or conservative minded person. The majority of Namibian judges, however, are the conservative types. He also said that I could consider my case lost if Neeta actually accused me in court of having abused N. My only chance with that regard would be to come up with this issue beforehand from my side and put Neeta’s suspicion as part of her irrational behaviour.



The defendant, in response to this paragraph indicated that his previous lawyer gave him such advice and it was indicated to him that he could lose his case if the plaintiff can prove that he abused N.



[135] In a previous email, dated Wednesday May 7, 2008 (exhibit V), defendant inter alia indicated to the plaintiff’s sister the following: -



Seeta. All indications are that Neeta has an abused related past. She might not even be aware of it. She might have been too young to remember or live in denial. The likelihood is high that with N’s adoption this past unconsciously surfaced. Neeta might identify herself with N. She wants to protect N from me, her father.....

Tears are rolling while I am writing this. But I am desperate and can only helplessly watch my life and world collapse. Something horrible might have happened to the person I love and she herself lives in denial and continues her “normal life” with a straight face as the strong woman we all know. And I cannot do anything.



On the other hand I am truly convinced that Neeta will not (physically) harm her. She loves N. And she wants to “protect her” from me! Probably, their world is now (without me) an absolutely happy world. And Neeta might even treat N much more relaxed. But which implications may it have on N. What emotional harm can be afflicted on her......



From a legal point of view my prospects to win a case against Neeta over N’s custody are rather bleak. It would be extremely difficult to prove in court that N has a psychological problem, especially since she behaves completely “normal” otherwise. And with regard to Neeta’s debatable methods to raising N, Namibian judges would most likely laugh at me as much as your parents did.....



Yesterday evening after this disastrous meeting the psychologists she [Neeta] wrote me an email to say that she was sorry but she “had to do this” not to raise any false hopes. She wrote that she wishes me no ill but it was clearly over. I did not reply. And this morning I found this in my mail box –

Last night after a very long time I could not sleep well. I think I did you, myself and our relationship wrong by being so negative yesterday. I am sorry. I am still struggling to understand how we can take things forward. Heidi did not help and that is the truth. If you think and want to discuss with me, lets meet for lunch or something, let me know.



.......In this condition I am surely not capable to look after N anyways so I am somehow glad that she is with Neeta.”

(My underlining)



[136] The defendant referred to exhibit U, a letter that he said he opened long after he received it. This letter, according to the defendant is to be interpreted as an intention on behalf of plaintiff to abandon N, as she provided the defendant, in a rather emotional letter addressed to the minor child, permission to take the child to Germany.



[137] The plaintiff also testified as to the contents of exhibit T, and indicated that same was written during the period that the plaintiff had to go to Zimbabwe for approximately a week during which period she left the minor child with him. After she came back she left for India after about two weeks whilst the minor child stayed with him.



[138] The defendant testified that he does not have any reason to return to Germany as he made a lot of friends and due to his relationship with Ms Kalo, also has a family. He testified that Esther, the minor daughter of Ms Kalo, also is an adopted child.



[139] Defendant in his testimony further admitted that he took assets from the common estate without the plaintiff’s knowledge and consent. In this regard he admitted that he took the amount of Euro 125,000-00 of which he approximately, at the time of the trial had Euro 15,000-00 left. This amount is kept in his brother’s account in Germany. Defendant further testified that he started to work from August 2008 and that it was very difficult for him to get employment in Namibia due to his field of expertise but he was fortunate enough to find employment with One Africa Television.



[140] Defendant furthermore testified that he can easily be employed in Germany and this also is confirmed in exhibit QQ12, being a letter from Kolben-Seeger GmbH & Co KG. In this exhibit it is also indicated that the monthly salary he can earn in Germany is far in excess from his present earnings in the Republic of Namibia.



[141] In terms of the employment agreement (exhibit QQ5-9) it is evident that the defendant is employed as an independent contractor in terms of the agreement entered into with One Africa Television (Pty) Ltd. Either party has the right to terminate the agreement by giving one calendar month’s notice.



[142] In cross-examination, defendant confirmed the alleged maltreatment of the minor child and indicated that the hitting took place approximately three times a day and apart from the potty training procedure also included a constant shaking of the minor child by Neeta. According to defendant, he did not know when the hitting stopped because “I was locked out of the house before that”.



[143] During the cross-examination of the defendant the defendant’s credibility was called into question in inter alia the following respects:



  1. Defendant testified that the plaintiff from the beginning, when the child was placed in their care, thrice a day slapped the minor child in her face, shook her and abused her. Not only was this, not put to the plaintiff in cross-examination, but also strangely enough, no evidence of this was ever seen by the experts. In my view, it is highly improbable that if a child of such a tender age is maltreated and abused, as the defendant alleges the plaintiff did, that none of the experts would have discovered any signs of same during their evaluations.



  1. Defendant, in his evidence admitted that he did not inform Ms Kubirske of this maltreatment as he wanted the adoption to go through and he thought that he was trying to protect the minor child. However, in all the applications to court, including the rule 43 applications the defendant insisted that the plaintiff was inhumane towards the minor child. This version however is contradicted by the contents of the email to the plaintiff’s sister on 7 May 2008 wherein defendant clearly stated that he was convinced that the plaintiff would never physically harm the minor child (exhibit V page 5).



  1. Defendant furthermore testified that the plaintiff never apologised for her behaviour. Counsel for plaintiff showed defendant an email from the plaintiff addressed to him in which, plaintiff apologised for her behaviour. The only response the defendant had was that he called in question her motivation to do so (exhibit WW page 16-19).



  1. Defendant testified that he at all times from the onset wanted to adopt children. Mr Annandale however testified that the defendant indicated to him that adoption was actually the plaintiff’s dream and not his.



  1. Defendant, in the presence of Ms Kalo, on several occasions took photographs of the minor child’s private parts in an attempt to prove that the plaintiff neglected the minor child. The defendant, as submitted by Ms Chase, however failed to mention that he took the photographs on his access afternoons, immediately after he collected the minor child from kindergarten. It eventually, not through the actions of the defendant, but through the actions of plaintiff, who took the minor child to a medical practitioner, was discovered that the minor child, at one stage, suffered from a minor infection. The defendant failed to mention the fact that he took these explicit photographs to the plaintiff (exhibit YY1-3).



  1. The version of the defendant that the plaintiff, during April 2008, took the child from him by force is to say the least highly improbable and questionable.



  1. The defendant testified that he removed an amount of euro 125 000.00 between April 2008 and April 2010 without the plaintiff’s knowledge. His motivation therefore was that he was destitute. This allegation of being destitute is not true as defendant, immediately after he was locked from the house, accessed the accounts of the parties and withdrew large sums from same. Defendant, under oath, indicated in a Rule 43 application, during 2010, that he was destitute. In this application, he stated that ‘after being locked out from my house, and left destitute, I manage to establish my own registered business from which I earn approximately N$ 15 000.00 gross every month.’ 29



  1. In contrast the defendant in the previous Rule 43 application dated 27 August 2008 stated the following at paragraph 11.1:



I admit that due to my accompanying spouse visa I am not entitled to work in Namibia. I however strongly state that I am most certainly willing to work. In fact, I have frequently obtained work visas in order to work as freelancer. Since 2001 I have earned approximately Euro 143 900 (approximately N$ 1.8 million) which amount to an average annual earning of approximately N$ 258 000.00)”



  1. In further contrast in the report of Ms Kubirske used in the Rule 43 application this year but dated 15 November 2009, the following is stated at Bundle 4 p 162 par 10.1:



10.1 EMPLOYMENT AND FINANCIAL POSITION



He is still working on the basis of a self employment work permit for his company registered under the name of “Ralph Höfelein Media Production” which was registered on the 13/08/2008. He issues an invoice to One Africa Television on a monthly basis and the money is transferred into his account. His work permit reference number is: W3527/2009 and is valid until the 31st of March 2010. (See attached proof of work permit). Besides One Africa Television he is also earning through other projects with his company. His latest film will be finished still in this month (November) and earning of approximately another N$ 50 000.00 will come in.



According to Mr Höfelein he has a decent income and the large part is on a regular basis and another part based on contract work and always the option to take up a well-paid open job offer with a reputable company if need be.



He stated that he has a significant amount of cash savings, investments, pension funds and life insurances to the value of approximately N$800,000.00 after the anticipated asset split with Mrs Sharma.



It is realistic to assume that as he mentioned it that his financial means are not as abundant as in Mrs Sharma; N will always be materially looked after way above average and he stated that his priority in this regard will always be her personal development and education. He stated that should he get custody all aspects of N’s developmental needs, at present as well as in the future shall be provided for with or without Mrs Sharma honouring a possible maintenance obligation towards N should he get custody.”



  1. The defendant’s income tax return for 2007 to 2008 at Exhibit 31-17 however tells a different story.’



[144] It is clear that the defendant throughout portrayed himself as a victim in an attempt to explain the reasons for his conduct, i.e. the dissipation of the assets of the joint estate without the plaintiff’s knowledge and consent, his suspicions that the plaintiff was abused as child, probably even by her own father, etc. The defendant furthermore did not make a good impression on this court during his evidence. The defendant’s demeanour in court changed from being the victim, to melodramatic and even to anger. Apart from the fact that material portions of his evidence was not put in cross-examination to the plaintiff to allow her to deal therewith, the defendant also was evasive in some of his answers.



[145] Having observed the defendant during the trial, after reading through all the documents and having regard to his conduct, I am convinced that I can agree with the description of Ms Hearne of the defendant as being a “dark horse and unpredictable”.



[146] I am in agreement with Ms Hearne, as well as Ms Kubirske that the taking of photographs of a young girls’ genitalia, in the explicit detail and the manner that it was done, for the reasons that the defendant advanced it was done, is clearly inappropriate. The defendant, if he had real concerns, could have taken the minor child to a doctor. This the defendant did not do due to his alleged lack of time. This is in my view no excuse for a father who intends to act in the best interest of his minor child. To repeatedly take these kind of photographs, of the private parts of a minor girl in the explicit manner that it was done, in my view, constitutes an abuse of the child’s right on privacy, as well as bodily integrity. I do not, for one moment, suggest that the defendant did so with any unlawful intent, but in doing so, for the reasons advanced, I have serious reservations as to the maturity of defendant to properly care for the minor child at her tender age as the custodian parent. I furthermore, having regard to the lack of cleanliness of the hands, also appearing in the photographs, have serious doubt as to the defendant’s alleged quest for hygiene, for and in respect of the minor child. I was shocked when I saw these photographs, the nature of which I have never encountered before. I am astonished that these photographs can be described by one of the experts who testified as “quite normal in these circumstances”. It is not. It is unacceptable for this court as the upper guardian of minor children that none of the experts who saw these photographs, if they saw the photographs produced in court, did not immediately investigate same in depth and/or if they did not have the time to do so to report it to the relevant authorities.



[147] This, however, is not the end, as Mr Mouton in his heads of argument, and in the light of Mr Annandale’s report, raises the following valid points in respect of the relocation of the child with the plaintiff to India.



[148] Mr. Mouton submitted that it will be better in the circumstances, having regard to Mr. Annandale’s evidence that the minor child is unlikely to see the defendant again, to let the child remain with the defendant in the Republic of Namibia where this court can exercise its jurisdiction in respect of the access rights awarded to the plaintiff.



[149] This argument would have had considerable force if it is was not for the fact that the parties’ stay in Namibia was at all relevant times a temporary one as neither plaintiff nor defendant are Namibian citizens or are domiciled in the Republic of Namibia. They are foreigners of different nationalities and cultures whose stay in Namibia have always been intended by the parties, when N’s adoption was finalised, to be of a temporary nature and as such they are both in possession of temporary visas only. It was therefore always envisaged, as a direct consequence of the adoption, that N, at one stage or the other will have to leave the jurisdiction of this court. An order for adoption is permanent and the status of the child in relation to his/her adoptive parents is clear.



[150] Having said that I find it appropriate to mention that until 2004 the matter of adoption by foreigners was dealt with definitely and explicitly by statute. Section 71(2)(f) of the Children’s Act 33 of 1960 provided as follows:



71(2) save as provided in s twenty-two, a Children’s Court to which application for an order for adoption of a child is made shall not grant the application unless –



in the case of a child born of any person who is a Namibian citizen that the applicant or one of the applicant’s is a Namibian citizen resident in Namibia. Provided that the provisions of this paragraph shall not apply – where the applicant or one of the applicant’s is a Namibian citizen or a relative of the child and is resident outside Namibia; or



where the applicant is not a Namibian citizen or where both applicant’s are not Namibian citizens but the applicant or the applicants have the necessary residential qualifications for the grant to him or them under the Namibian Citizen Act (Act 14 of 1990) of a certificate or certificates of Naturalization as a Namibian citizen and has or have made application for such certificate or certificates and the Minister has approved the adoption.”



[151] The effect of this provision was that no authority was permitted to facilitate an adoption of a Namibian child by a person who did not fall within the ambit thereof.



[152] The full bench of this court, declared section 71(2)(f) of the Children’s Act 33 of 1960 inconsistent with arts 14(3) and 10(1) of the Constitution of the Republic of Namibia and therefore unconstitutional in its entirety.30



[153] A direct result of the Detmold decision was that foreigners were no longer barred from adopting a Namibian child. In the Detmold matter, the applicants however were both German nationals with permanent residence in Namibia.



[154] Namibia has not since the Detmold decision made progress in putting in place all the necessary structures to deal with adoptions of Namibian children by foreigners, which in all aspects are similar to an inter-country adoption which calls for a clear statutory regime to deal with the specific problems inherent to such adoption.



[155] Although the Children’s Act still provides that the proposed adoption has to serve the interest and be conducive to the welfare of the child, without the provisions of section 71(2) (f) same becomes mere lip service as the authorities are not bound by any explicit statutory provision to also , at the time of considering the adoption application, take into consideration the effect of relocation of the prospective adoptive parents, whose residency in Namibia, at the time of the adoption, already is clearly indicated to be of a temporary nature.



[156] The risks of not duly considering the effect of the potential relocation of Namibian children from the country when deciding whether an adoption by foreigners should be approved can result in the adoption process being reduced to a mere rubber stamping exercise rather than a careful examination of the facts and circumstances.



[157] Adoption and the consequences thereof is not a private affair but remains a government responsibility and as such, regardless of the fact that it is not explicitly provided for by statute, authorities must respect the subsidiarity principle as it was enshrined in art 21(b) of the United Nations Convention on the Rights of the Child, which according to article 144 of the Namibian Constitution has to be considered when interpreting Chapter 3 of the Constitution, pertaining to Fundamental Human Rights and Freedoms, and more in particular Article 15 pertaining to Children’s rights. The effect of the subsidiarity principle is that adoptions by foreigners should be strictly considered as an alternative to adoption by adoptive parents who reside in the child’s country of birth.



[158] Namibia is also as yet not a party to the Hague convention which in its inception on 1 May 1995, heralded a global approach to inter-country adoption, setting out detailed legal, administrative and procedural provisions to ensure that its objects are fulfilled and acknowledging in its pre-amble inter alia that -



the necessity to take measures to ensure that inter-country adoptions are made in the best interests of the child and with respect for his or her fundamental rights”.



[159] The fact that Namibia is not a party to the Hague Convention and does not have the necessary statutory regime in place has the result that this court looses its jurisdiction as upper guardian of a Namibian child in the event of such child leaving Namibia.



[160] It is unfortunate that the legislature and/or the Government of Namibia is dragging its feet to see to the implementation of available instruments in respect of inter alia the abduction of children which leaves the court in a legal lacuna and to a great extent powerless in certain circumstances.



[161] The time has now arrived for the advocates of children’s rights in this country, to put pressure on the relevant authorities to see to it that the international and national instruments are in place, in creating a policy of law that is of universal nature, so that a Namibian child who is the subject of an adoption by foreigners, in one way or the other, still can find his or her way back to the jurisdiction of this court.



[162] The need of a child should be paramount and not the need of childless foreign couples. The purpose of adoption is to find a suitable home for a child and not a suitable child for a family. This is a compelling factor that adoption agencies must carefully consider before they allow foreigners to adopt, especially foreigners from different nationalities.31



[163] It often happens, within the ambit of adoption by foreigners, speaking of children’s rights in the name of the child, that issues are simplified to the extreme. However in such instances the rights of the child concerned are not always so clear cut and obvious. Although adoption by foreigners can offer a permanent and appropriate family life to a child who has been deprived of same, adoption agencies should not loose sight of the fact that such a child can be caught up in the cross-fire of a broken relationship of two foreigners of different origin which can potentially violate the interests of the child.



[164] N was legally adopted by the plaintiff and the defendant and it is therefore not for this court to judge whether all relevant factors were taken into consideration at the time thereof. This was pre-eminently the duty of the authority, which granted the adoption. This Court can only hope that the authority allowing same considered it at the time thereof with specific consideration to it being a truly principled child orientated approach which required a close and individualised examination of the real life situation of the child involved.



[165] It is apparent from the evidence that N’s adoption was a well considered and well conceived decision by both parties. It therefore also would have been a reality contemplated by the parties and the adoption authorities that if one of the parties has to leave the jurisdiction of the court, that N at one stage or another also will leave the jurisdiction of this court. A further reality would be, should the marriage not work out that one of them would have to part with her, due to their respective nationalities and citizenships.



[166] As indicated herein before the expected has happened and not only did the marriage not work out the plaintiff has no right to further legally stay in the Republic of Namibia.



[167] As it never was intended by any of the parties that the minor child should remain in the jurisdiction of this court, I, in my view, cannot now force the plaintiff, if the custody and control of the minor child indeed is awarded to her, to do so. The only reason why this court in these circumstances have jurisdiction is because the parties, their marriage now ending in divorce, at present still find themselves with the minor child in Namibia. It follows that should a foreigner, despite his or her desire or intent to further stay in the host country, lacks the capacity to acquire a domicile of choice in that country, his or her continued residence would be unlawful.

[168] From the evidence before me it is obvious that the relocation of the plaintiff to India is not one of choice, but one of necessity and I can find no indication on the evidence before me that same is done with ulterior motives.



[169] The plaintiff for the past 3 years has been the interim custodian parent of the minor child. The defendant has reasonable rights of access. In this environment, the child has developed into an intelligent and special child.



[170] No objective or reliable evidence has been advanced upon which this court can decide that the interim custody arrangement/order, which was in place for approximately two and a half years should be varied and that such variation would be in the minor child’s best interest.



[171] Having regard to all the facts of this matter, the legal principles applicable, some of which I have referred to hereinbefore, I have no doubt, although the plaintiff by no means can be described as being the perfect parent, as there certainly is no such a thing, that I, on the facts before me, cannot but otherwise conclude that the least detrimental available alternative for safeguarding the child’s growth and development will be if custody and control of the minor child is awarded to the plaintiff.



[172] On the present facts before me, in the light of what I already said hereinbefore in respect of relocation, I have to choose between the following scenarios, i.e. whether it will be in the best interest of the child if she is to relocate with the plaintiff now to India or to disallow the plaintiff, to whom custody of the child is awarded, to relocate which will render her stay in Namibia unlawful or whether it would be in the child’s interest to further expose her to uncertainties. In this regard, sight should not be lost of the fact that the defendant’s stay in Namibia cannot be said to be permanent in nature, and as such, a real likelihood exists that the Defendant will also leave Namibia in the near future. In such an event, the defendant will most probably relocate to Germany.



[173] In AD v DW (CENTRE OF CHILD LAW: DEPT FOR SOCIAL DEVELOPMENT) Sachs J stated:32



Child law is an area that abhors maximalist legal propositions that preclude or diminish the possibilities of looking at and evaluating the specific circumstances of the case. The starting-off point and overall guiding principle must always be that there are powerful considerations favouring adopted children growing up in the country and community of their birth. At the same time the subsidiary principle itself must be seen as subsidiary to the paramount principle. This means that each child must be looked at as an individual, not as an abstraction. It also means that unduly rigid adherence to technical matters, such as who bears the onus of proof, should play a relatively diminished role; the courts are essentially guarding the best interest of a child, not simply settling a dispute between litigants.”



[174] The competing considerations between reasons advanced for relocation and a reasonable objection thereto must therefore be carefully considered and weighed. This involve an assessment of the likely effect of the available possibilities and gives rise to issues of degree which have to be assessed having regard to the circumstances of the case. In my view, once the custody and control issue has been decided on, it follows that bar, certain exceptional circumstances, the minor child will be allowed to relocate with the custodian parent as in these circumstances the relocation is not by choice but in fact forced on the custodian parent.



[175] As Hurt J stated;33



I am bound, in considering what is in the best interest of G, to take everything into account, which happened in the past, even after the close of pleadings and in fact up unto today. Furthermore, I am bound to take into account the possibility of what might happen in the future if I make a specific order”



[176] With reference to the quoted authorities one must also not lose sight thereof that it appears that all of same deals with a situation where one of the parties, although in some instances originating from a foreign country, sought the court’s approval to emigrate from the country where they resided up until divorce together with their biological minor children. I could not find authority, which is similar to the present situation where a child is to relocate from its country of birth and origin and consequently the jurisdiction of its upper guardian, due to the parents or one of them’s temporary stay in that country having come to an end.



[177] Resultant from the aforegoing, and in the exceptional circumstances of this matter the permission or not of the non-custodian parent, to safeguard his access rights and to ensure the child’s contact with him, in my view, becomes to a large extent of no significance. To force the custodian parent to stay will result therein that the court will attempt to give validity to a stay in Namibia, which this court cannot do. The decision as to relocation is obvious, not only due to the plaintiff’s circumstances, but also as a result of the evidence of Mr. Annandale, that in his opinion the Plaintiff, in the instance of relocation, is best suited.



[178] As King DJP stated;34



All in all, the children’s lives will be more stable and secure than they are now. It is trite that the interest of children are - all else being equal – best served by the maintenance of a regular relationship with both parents. Sadly however children of divorced parents do not live in an ideal family world and the circumstances necessitate that the best must be done in the children’s interest to structure a situation whereby access by the non-custodian parent is curtailed but contact between him and the children is effectively preserved.”



And at 440 A-E

If the mother is to relocate, the position can be palliated and the disruption of the children minimised by the generous allocation of block access which is to be proposed. The children will see their father for a three- week mid year and a four week period at years end, to be enjoyed either in Australia or South Africa according to the father’s choice. The father has re-established his dental practice and will, I am confident, be in a financial position to exercise the right of access afforded to him.



One of the father’s concerns is that the mother will make the exercise of access difficult, if not impossible. I do not think this will happen. The mother recognises and acknowledges the need and desirability of continued contact between the children and their father and I believe she is bona fide in this regard. Additionally the mother has undertaken to have the order of this court, where appropriate, made an order of the court of competent jurisdiction in Australia and the order which I propose will oblige her to do so.



I am very mindful of the effect which the loss of frequent contact with their father will have on the children. He is very much part of their lives and the absence of frequent contact with their father and the loss of this immediate presence will be a diminishing factor in their young lives. I am however satisfied that this can be compensated for, significantly if not entirely, by the generous blocks of access proposed and by such other palliatives as will be incorporated in the Court’s order. I would reiterate that I accept the mother’s good faith and emphasise that it is her sacred duty to respect and foster the relationship between the children and their father.”



[179] It unfortunately follows in the present circumstances that the non-custodian parent’s right of access will be severely affected. This however is a consequence of an adoption, which was allowed where foreigners from different countries and nationalities with temporary visas were allowed to adopt a Namibian citizen.



[180] After the hearing of this matter I have requested the parties to forward to this court, their submissions in respect of the defendant’s rights of access if the plaintiff is to be awarded custody and control of the minor child and she is allowed to remove the minor child from Namibia. The submissions made by both parties are to a large extent similar.



[181] In these circumstances it unfortunately is impossible for a model to be devised so that N will have constant, physical contact with both her parents and I incorporate in my order such access provisions to the defendant as can reasonably and suitably be imposed.





[182] As a result of the fact that the minor child has remained in Namibia up to date of the order made, I have decided to limit the first period of the defendant’s access during the forthcoming summer May-July holidays to a period of 3 weeks to provide the minor child and the plaintiff at least a reasonable period of time not only to relocate to India but also to set up the necessary structures in India for the minor child’s care.





[183] I have also decided to, in the light of the submission made by defendant that the minor child should be re-evaluated in future to decide whether the access rights should be changed, that the access rights of defendant, in respect of the school holidays of India, for the time being should be exercised in the Republic of Namibia. As is evident from the order Mr. Annandale, failing him a clinical psychologist to be appointed by the registrar of this court is to re-evaluate the position as to the defendant’s access rights to the minor child during the 2011 winter holiday of India. At that stage, the defendant most probably will know whether his stay in Namibia also has come to an end. In such an event, it follows that the access rights of the defendant will have to be revisited in respect of the change of residence of the defendant to another part of the world, on advice and recommendation of Mr. Annandale or the alternate appointed clinical psychologist. In the event of the defendant deciding to visit India, defendant, as submitted by plaintiff, will be entitled to have access to the minor child at any stage.



[184] I trust both parents will accept that there is no winner or loser in this matter. There are merely two concerned parents each seeking what is best for N and that this court can only law down the rules, which the parents must see to be observed.



[185] In my view, this litigation has not in any way been in any of the parties’ interest. Clearly, had all concerned attempted to talk about N’s genuine best interest, they would not have spent so much time embroiled in a dispute about her custody and ultimate residence. This obviously did not only come at great emotional cost to all, which none of them could actually afford, but also had great financial implications.



[186] I also endorse the views expressed by Brassey AJ in MB v NB35 that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort.



[187] In matters concerning children, even after divorce, an approach conducive to conciliation and problem solving should probably serve their best interest and a confrontational approach should be as far as possible avoided.



[188] Both parties indicated that if they are awarded the custody and control of the minor child that he or she does not claim any maintenance for and in respect of the minor child. This is also evident from the pleadings filed of record.

[189] In respect of the costs of this matter most of the time in court was spent on the question as to the custody and control of the minor child. As a result of the circumstances of this case, I cannot find that any party, unreasonably contested same. Both parties bona fide believed that they are entitled to the custody and control of the minor child. As such, I have decided that each party is to pay his or her own cost of suit.









As a result of the aforesaid, the following order is made:-



1. The marital bond between the plaintiff and the defendant is herewith dissolved.



  1. The joint estate between the parties is to be divided. For purposes of the division, the value of the joint estate is to be calculated as on 18 April 2008. The liquidator is specifically directed, in the calculation of the value of the joint estate to include the value of any dissipation of any assets of the joint estate by any of the parties without the permission of the other party prior to and after the 18th of April 2008. Any income earned or accumulation of assets by the parties after 18 April 2008 – excluding any unauthorised dissipation of the assets of the joint estate - must be regarded as prima facie separate income earned.



  1. The parties are afforded a period of two weeks to agree on the liquidator to be appointed, failing which the President of the Law Society of Namibia is authorised and directed to appoint a suitably qualified liquidator in consultation with the respective legal practitioners of the parties. The liquidator, upon appointment shall have the following powers:-



    1. To liquidate the property belonging to the joint estate of the parties by public auction or private treaty, and to distribute the proceeds of the joint estate between the plaintiff and the defendant;



    1. Authorised to take immediate control of, manage and investigate the assets of the parties which form part of the joint estate of the parties;



    1. The liquidator’s authority shall be exercised subject to the supervision of the High Court of Namibia;



    1. Receive all such monies paid into the joint estate by any person entitled to do so and shall in particular ensure that the parties comply with any order made by the court in respect of debatement of accounts, proof of vouchers, adjustment of assets in favour of any party so ordered;



    1. Directed to take custody of cash, cash investments, stocks, shares and other securities held by the plaintiff and the defendant, and of other property or effects belonging to or held by or on instruction of either plaintiff or defendant;



    1. Authorised to conduct any investigation with the view to locating the assets, cash, shares, investments belonging to the defendant and the plaintiff or their business, including such assets held by way of securities, in cash or liquid form and for purpose of the said investigation, the liquidator:



      1. may obtain the issue by the Registrar of this Court of any subpoena in order to obtain access to and possession of relevant documents including records of banking accounts from any person if the liquidator has reason to believe such documents may contain information relating to the investigation.



    1. Authorised to incur such reasonable expenses and costs as may be necessary or expedient for the liquidation and distribution of the joint estate of the parties, and to pay same from the proceeds of the assets held, administered or under the control of the liquidator;



    1. Permitted to engage such assistance of a legal, accounting, administrative, or other professional or technical nature as they may reasonably deem necessary for the performance of the liquidator’s duty in terms of this order and to defray all reasonable costs and expenses thus incurred from the assets or proceeds of the joint estate of the parties;



    1. Authorised to open and operate any new banking accounts for the purpose of the liquidation and distribution of the joint estate.



    1. Directed and authorised to apply on notice to the Registrar should it be necessary for an extension of his/her powers and for instructions from the court in regard to any matter arising out of or in connection with the control, management and liquidation and distribution of the joint estate of the parties;



    1. To sign all necessary documents to effect the transfer of any property, assets, securities, shares if required into the name(s) of the parties;



    1. To take all necessary steps and sign all other necessary documents required in general for the liquidation in distribution of the joint estate of the parties;



    1. To retain a liquidator’s fee of 3.5% of the value of the assets upon liquidation;



    1. To pay all creditors, if necessary;



    1. To distribute the remainder of the funds in equal shares between the parties, or as directed by an order of High Court of Namibia;



    1. To deliver a copy of the final liquidation and distribution account to this Honourable Court on notice to the parties.



4. The custody and control of the minor child N Höfelein, born on the 10th of March 2006, is granted to the plaintiff.



5. The plaintiff is allowed to remove the minor child from Namibia and to relocate with the child to India.



6. The defendant shall have the rights of access to the minor child, N Höfelein as follows:-



    1. Summer school holidays of India for a period of six weeks. The first summer school holiday for 2011 however is limited to a period of three weeks.



Winter school holidays of India for a period of not less than sixteen days.



    1. The defendant’s right of access is to be exercised and is to be afforded to him in Namibia. If the defendant is to travel with the minor child during his access periods outside the borders of Namibia, he shall first obtain the plaintiff’s written permission which shall not be unreasonably withheld, failing which the permission of this court.



    1. The plaintiff shall be responsible for the payment of the travelling return airfares of the minor child for the summer school holiday to the place of the defendant’s residence and shall be responsible for the travelling costs of the person who travels with and accompany the minor child from and to India.







    1. The travelling fees for access during the winter school holiday of the minor child shall be equally shared between the plaintiff and the defendant. In the event of any of the parents accompanying the minor child during any of the flights, personal contact between the parties should as far as possible be avoided.



    1. For the period between the holidays and when defendant has no physical access, the plaintiff shall create a “skype” account for the minor child for purpose of video communication between the minor child and the defendant for a period of not less than three quarters of a hour each week.



    1. The plaintiff shall allow defendant all telephonic access to the minor child, convenient to the parties as a result of the time zone difference between the respective places of residence of the parties.



    1. The plaintiff shall make all necessary arrangements for the minor child to telephone (video or otherwise) the defendant on the following calendar days –



6.7.1. Father’s day;

6.7.2. Defendant’s birthday;

6.7.3. The minor child’s birthday; and if possible

6.7.4. Esther’s and Ms Kalo’s birthdays.



    1. The defendant shall be allowed access at any time to the minor child should he be visiting India.



    1. The plaintiff shall provide the defendant with the minor child’s medical, school and extra mural reports.



    1. The aforesaid arrangement in respect of the defendant’s rights of access is to be maintained up and until the end of the winter holiday during 2011. During the winter holiday an evaluation by Mr Annandale, alternatively a clinical psychologist, appointed by the Registrar of this Honourable Court should be conducted in Namibia during the winter school holiday as to whether these access arrangements should continue in future or whether different arrangement(s) for access should be made. If necessary and if so requested by the expert both parties are ordered and directed to make themselves available for evaluation at their own costs. The costs of the evaluation are to be borne by the parties in equal shares. Any amendment to the access rights shall only become enforceable once an order of this Court is obtained.





  1. Each party is to pay his/her own costs of suit.







________________

BOTES, AJ

























COUNSEL ON BEHALF OF THE PLAINTIFF: Adv Schimming-Chase

Instructed by Ms E Angula

Lorentz Angula Inc.





COUNSEL ON BEHALF OF THE DEFENDANT: Adv C Mouton

Instructed by Mr Vlieghe

Koep & Partners

12010 (3) SA 220 (GSJ) at paras 1-2

2Bundle 3, pg 135-141; Bundle 4 pg 273-275

3Bundle 1 p 75

4Exhibit OO

5The learned author HR Hahlo, in the South African Law of Husband and Wife, 5th Edition states that: “The forfeiture rule of S9(1) [of the Divorce Act, 1979] has little in common with the Pre-Divorce Act forfeiture rule, except the word “forfeiture”. The idea behind the old forfeiture rule was that a guilty spouse must not be allowed to benefit from a marriage which he or she has wrecked.

6H R Hahlo, The South African Law of Husband & Wife, 3rd Edition, p358. Although there are further publications of the same work, reference is made to the specific work as the Divorce Act, 1979, is not applicable in the Republic of Namibia.

7In evidence it, however was established that the adulterous relationship already started during January 2009.

83rd Edition, pages 364-365 and authorities referred to in footnotes 12 and 13.

9H R Hahlo, supra, p367

10See: HR Hahlo, supra pg 430. See also Van der Westhuizen v Seide (2) 1957 (4) SA 360 (SWA)

11Hahlo, supra pg431; Smith, 1937 WLD 126; Ex-parte De Beer, 1952 (3) SA 288 (T)

12See exhibit QQ

13For the source of the backgrounds see bundle discovered documents, pages 105-106

14See Discovery bundle pg 113

15J v J 2008 (6) SA 30 (C)

161994 (3) SA 201 (c)

171994 (3) SA 201 (C) at 204 T- 205 G; DM v SM 2008 (2) NR 704 (HC); See also section 3 of the Child Status Act, Act 6 of 2006.

18F v F 2006 (3) SA 42 (SCA) para 13

19See F v F supra pp 48-49

20See also: Jackson v Jackson supra p 317

21In Jackson v Jackson, 2002 (2) SA 303, at 311 H it was also stated that: “the experts were predicting the future and that their discipline is not an exact science.”

22Pleadings bundle pp 107 and 166

23Ms Hearne was in court for approximately half a day before she gave evidence.

24Dr Annandale.

25See exhibits YY 1 - 3

26Bundle 4, p 50

27This was denied by Ms Kubirske

28Exhibit DD

29See bundle 4 page 18 para 5.4

30See Detmold and Another v Minister of Health and Social Services and Other 2004 NR 174 (HC).

31See judgment of Sacks J in AD v DW (CENTRE FOR CHILD LAW: DEPT FOR SOCIAL DEVELOPMENT) 2008 (3) SA 183 at 204 – “Volkman ‘Introduction: New Geographies of Kingship’ in Volkman (ed) Cultures of Transnational Adoption (2005) at 4 quoted by McKinney ‘International Adoption and the Hague Convention: Does Implementation of the Convention Protect the Best Interests of Children?’ (2007) 6 Whitter Journal of Child and Family Advocacy 361 at 366. See too Saclier ‘Children and Adoption: Which Rights and Whose?’ in UNICEF ‘Intercountry Adoption’ 4 Innocenti Digest at 12:

At present, speaking of children’s rights when talking about inter-country adoption forces us to confront a highly uncomfortable situation. In the name of the child, everyone raises his or her banner and simplifies the issues to extreme, whereas, in this field, the rights of the children concerned are not always so clear-cut and obvious. The passions the topic unleashes, in both countries of origin and receiving countries, distort information, confuse people’s thinking and make action difficult and risky. Often there is a tendency to consider only one aspect of the problem, filtered through the prism of the side of the planet on which one lives. Everyone defends his or her personal convictions or interests, forgetting that at stake are the lives of human beings, and young and particularly vulnerable ones at that”. See also: De Gree and Another v Webb and Another (2006) (6) SA 51 at G.



32Supra at 204 C - D

33See P and Another v P and Another 2002 (6) SA 105 (NPD) at 110 C-D

34Van Rooyen v Van Rooyen, supra p 439 H-J

35Supra at pp 235 - 238

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