S v S (I 902/2008) [2010] NAHC 28 (26 March 2010);

Group

Full judgment
REPUBLIC OF NAMIBIA





REPUBLIC OF NAMIBIA

Reportable


CASE NO. I 902/2008


IN THE HIGH COURT OF NAMIBIA



In the matter between:



N R S PLAINTIFF



and



P S DEFENDANT

(Born V R)



CORAM: DAMASEB, JP



Heard: 9th – 11th March 2010


Delivered: 26th March 2010

________________________________________________________________________

JUDGMENT


DAMASEB, JP: [1] The present dispute relates to which of the two parents in the process of divorce should get custody of the two minor children of the marriage, aged 10 and 7 years respectively. Either parent desires custody. The other issue is whether the wife should be awarded rehabilitative maintenance in the amount of N$500 per month, escalating by 10% per annum. The plaintiff in these proceedings is a South African national with permanent residence in Namibia. The defendant is a Namibian national, as are the two minor children (both boys) the subject of the custody dispute.


[2] The parties were married at Usakos on 7 June 2002 in community of property. The plaintiff (husband) is 45 years old while the wife (defendant) is about 35 years old. The plaintiff has a 15-year old daughter from a previous relationship. He is a diesel fitter working for Rosh Pinah Zinc Corporation at the mining town of Rosh Pinah. Before that he worked at Otjihase mine near Windhoek. He testified that while they lived in Otjihase in 2005, the defendant was unemployed and stayed at home full time. He worked shifts then. The eldest of the two boys, M, was then attending pre-school. The plaintiff testified that he had to call home at 5 am every morning from work to wake M up to get ready for school as the defendant would not wake the boy for school. He testified that the defendant was in the habit of going out until late at night and returned home late drunk. She therefore had difficulty waking up in the morning. She did this very regularly he testified. According to the plaintiff, the defendant spends very little time with him and the children because of her drinking habit which keeps her away from home for long periods. He also testified that he has as a result developed a strong emotional bond with the boys and is the one responsible for their emotional and physical needs.


[3] The plaintiff’s further testimony is that he is the main provider for the children’s physical needs. He earns an income of about N$19,000 per month, and is, by virtue of his employment with the Rosh Pinah mine, entitled to housing for which he pays nominal rent. He also enjoys free water and electricity from the employer. He occupies a 3-bedroom house with a kitchen, living room and a garage. The children go to a local school at the mining town and are entitled to education at the employer’s expense. Such education support will be discontinued if they leave town. The eldest boy is in grade 4 while the youngest is in grade 1. They attend the same school.


[4] The plaintiff seeks custody of the two minor boys because he considers the wife to be an inadequate mother with a history of alcohol abuse, and a lack of interest in the upbringing of the children; and that he, because of his stable employment and reasonably comfortable housing, is better able to provide for the children and to look after their well-being. He testified that the defendant stays away from home for long hours and spends the time drinking with friends and, at other times in the past, left home for several weeks. According to him, he is the one responsible for waking the children in the morning, preparing breakfast for them and making them school-ready. He testified that the wife would often work until 21H00 at the video shop and would not return home immediately. According to him the defendant cooks once or twice a month - thus leaving the main responsibility for cooking for the children to him. The plaintiff testified that he and the defendant had quarrels in the past due largely to her behavior and her accusing him of having extra-marital affairs, including with his own daughter. He testified that the defendant offers very little assistance to the boys with their school work and, in order to gain their affection, allows them too much latitude to watch movies and to play video games, instead of making them concentrate on school work.


[5] The plaintiff testified that he has in his employ a housekeeper that he pays N$600-00 per month. The housekeeper looks after the children during the day when he is at work and will continue to do so if he is awarded custody. When he comes home after 16h00 he helps the children with homework and prepares dinner for them. The plaintiff owns a vehicle with which he transports the children to school and taking them out on social outings. He neither drinks nor smokes and seeks to enforce discipline on the children. Although he is a South African, he has permanent residence in Namibia and intends to continue living and working in Namibia.


[6] The plaintiff further testified that after the divorce the defendant will in all probability leave Rosh Pinah because she will have to vacate the family home. Once she leaves home it would be almost impossible for her to afford a home in Rosh Pinah on her meager salary. The defendant does not own a home outside Rosh Pinah and, because of her lack of tertiary qualification, would not be able to find a well-paying job.


[7] In cross-examination the plaintiff conceded that the children are fond of their mother; that she had not physically abused them before and that with adequate maintenance from him, she would be able to care for the children – although he entertained doubt if she would be able to help them adequately with their schoolwork. He expressed concern that if custody were awarded to the defendant, the children would not have a stable home and that in view of her past history of alcohol abuse and lack of interest in the upbringing of the minor children, it would be to their detriment.


[8] The plaintiff called a social worker, Nghipuulenga Tumangulula Naukushu, to testify in support of his claim to be awarded custody and control of the minor children. The social worker had paid a visit to the family in March 2009 at their home at Rosh Pinah. She interviewed the plaintiff and the defendant separately; and then also the minor children separately. The social worker in her report admitted in Court as an exhibit, recommends that custody and control of the minor children be awarded to the plaintiff, with reasonable access the defendant. She repeated the conclusion and the recommendations under oath at the trial. She bases her recommendation on the following:


It would be in the best interest of the children to stay with the father for the following reasons: The father has a place for the children to stay while the mother does not. Although the mother wants custody of the children it seems she want to do it to punish her husband. The father is more likely to handle the mother with respect and allow the mother reasonable access. He is more able to provide the children with continuity and they are currently at good educational institutions and their withdrawal from their current schools will simply disrupt their schooling and rob them of an opportunity in life; he is more able to provide guidance and discipline. He can afford a care-taker while he is at work.’’


[9] The social worker made the following additional findings which she recorded in the official report and also repeated in oral testimony under oath before me: the housekeeper does most of the household duties; the defendant had not thought through the consequences of the divorce, especially with regard to the custody of the children and was uncertain where to go with the children if she were given custody; the home in which the family live at the moment is spacious , comprising 3 bedrooms (one en-suite), a kitchen, sitting room and two bathrooms; the plaintiff is a teetotaler and does not smoke and has a good relationship with the two boys; the plaintiff was calm during the interview and seemed more mature; the eldest boy preferred to stay with his mother while the youngest expressed the wish to stay with the father; there is a lack of private accommodation in Rosh Pinah. (It needs to be said that the social worker testified that before she spoke to the children, the plaintiff had informed her that he would not be surprised if the eldest boy expressed a preference to stay with his mother because, in the plaintiff’s view, she allows the children to do things that are not otherwise in their best interest.)


The defendant’s personal circumstances

[10] The defendant has grade 12, no tertiary education and no particular qualification. She had not worked most of the time she had been married to the plaintiff although she has now found employment at a local video shop where she has risen to the rank of supervisor. She testified that at the time she felt it her duty as wife and mother to stay at home and to look after the children. Her parents are pensioners who live in a house in Usakos belonging to one of their children – a sibling of defendant. The defendant also has sisters who live in Swakopmund. She intends to relocate in due course to Swakopmund where she hopes to go and live with one of her sisters who has a home in which she lives with a boyfriend and two children. (It was quite apparent that she had made no definite arrangements in that regard, although she felt confident she would be welcomed (with her two sons) in the home of the sister.) None of the people she says would be prepared to accommodate her with the children were called as witnesses.


[11] The defendant receives no financial support from the plaintiff: According to her, throughout the marriage (even in happier times) the plaintiff would always do the family groceries – a privilege denied the wife. The defendant earns N$3 200 per month from her employment as a video shop supervisor. She is able to meet her own needs from the income, including buying food for herself (as the husband expects her to buy her own food) and, occasionally for the minor children. She walks to and from work although the husband owns a vehicle. In her testimony in Court the defendant gave a breakdown of her expenses as follows:

  • Lawyer: N$500

  • Toiletries: N$200

  • Food: N$200

  • Cleaning materials: N$300

On her own version, therefore, the defendant spends about N$1 200 per month from her salary, giving her a monthly disposable income of N$2 000.


[12] The defendant is required by the employer to works shifts, including in evenings. If she does the day shift, the children would come to her at her work place and she would allow them to play video games and to watch movies, much to the plaintiff’s annoyance who feels that they should be at home doing school work.


[13] The defendant smokes and, according to her, has an occasional drink. It is obvious that some of her income goes into financing those habits, much to the dislike of the plaintiff. Because of the plaintiff’s dislike of her smoking habit, the defendant would smoke outside the house or would go to a female neighbor so as not to annoy the husband. The defendant left me in no doubt that she was made to feel unwelcome in the house by the plaintiff and that what appeared to me to be her incessant absences from home was because she felt unwelcome at home. She also testified that the husband had introduced a regime in the home in terms of which he locks up in a cupboard food that he buys and which the defendant is not allowed access to. It was obvious to me that the relationship between the husband and the wife is not a good one. It seemed to me that they did not enjoy each other’s presence in the common home. The plaintiff would not eat what the defendant cooked and he seemed reluctant to allow her to run the home. It must be a humiliating experience for a woman not to run the chores in the home.


[14] It emerged from the defendant’s testimony that after the divorce there are only two likely options for her, the last to be mentioned being the most likely: she can stay on in Rosh Pinah and continue her employment with the current employer. In that event, she would have to leave the family home and find alternative accommodation. She concedes that rented accommodation in Rosh Pinah is very expensive and that she would not be able to afford comparable accommodation on her income. Alternatively, she would have to put up with friends. She has one particular couple in mind who she thinks would be able to accommodate her when she leaves the family home. (They were not called to confirm the defendant’s version). On defendant’s own admission, however, the Rosh Pinah Zinc Corporation which owns the house in which the couple lives does not allow occupiers to house non-family members in company houses. The most likely option in the immediate aftermath of the divorce is, therefore, also the least likely to materialize. That makes the defendant’s most immediate future after the divorce so much precarious.

[15] The probabilities are therefore overwhelming that the defendant will leave Rosh Pinah in the foreseeable future. When she does so, she will lose employment and will have to seek new employment either in Usakos or at the coast. She would have to go and live with relatives in the meantime until she finds employment and a home of her own, either at Usakos or in Swakopmund.

[16] The uncertainty which all this involves for the future of the minor children if their custody were awarded to the defendant is all-too-apparent. It is this uncertainty on which the social worker premises her conclusion that the defendant seeks custody of the children, not so much because she is able to immediately provide for their physical and emotional security, but to punish the plaintiff. I have great sympathy for this conclusion. My own questioning of the defendant so abundantly brought to the fore how unprepared she is for her own and the children’s most immediate future.


[17] At the end of the defendant’s oral testimony I invited both counsel to my chambers and expressed two concerns:


(a) My reluctance to award custody of the minor children to the father given their relatively young ages; and

(b) the no less troubling thought of awarding custody of the children to the defendant in the light of her uncertain future.


This exchange prompted the defendant to re-open her case with leave of court, and to place on record that she had in the intervening period secured accommodation for herself in Rosh Pinah. She was very short on detail - and the arrangements, at best for her, sounded tentative. Be that as it may, what she sought to convey to the Court about this arrangement amounted to inadmissible hearsay and Mr. Denk quite rightly objected to its reception. Accordingly, I place no weight at all to the arrangements she said she had made in the meantime.


The law

[18] The days when fathers were seen only as providers and not care-givers belong to the past era: Parenting is about being consistent and predictable. All things being equal, it is the quality of love that matters and not who gives it. In a custody dispute the Court’s primary concern is the “best interest” of the minor child. The Court must decide which of the parents is better able to promote and ensure the child’s physical, moral, emotional and spiritual welfare.1 The Court’s duty is not to seek out the perfect parent who should be awarded custody. It has been held that:


In determining what custody arrangement will best serve the children’s interests …a Court is not looking for the ‘’perfect parent’’- doubtless there is no such thing. The Court’s quest is to find what has been called “the least detrimental available alternative for safeguarding the child’s growth and development”.2 (My emphasis)


It is therefore settled that parenting is a gender-neutral role or function. A parent should not be denied custodial rights simply because they are of a particular gender. That is not to suggest, however, that a parent’s gender should not be placed in the scale at all in determining what would be the best interest of a minor child in a custody dispute. Its case must be treated on its merits.


Analysis

[19] What emerges from the evidence led before me is that on the one hand we have a father (a very doting one at that) who has sufficient resources (financial and otherwise) to provide a good home for his two sons. He displayed not only the eagerness but the actual effort in the past, to look after the two boys. On the other hand, we have a mother (no less doting of her two sons) who is not as well-placed financially to provide for her two sons and seems to have coped rather badly emotionally on account of the separation. The evidence shows that she can go and live with relatives in Usakos or Swakopmund in a house that will quite adequately house the two boys. She would then have the necessary emotional support of the two parents and, potentially, her other siblings who reside in Swakopmund and Walvis Bay. But all that is still speculative because she has, as I established at the trial, not made any firm or definite arrangements.


[20] The evidence shows that if the defendant relocates to the coast, she stands a greater chance of getting employment than would be the case in the small mining town of Rosh Pinah where job opportunities are limited. [21] The evidence also establishes that with adequate maintenance from the husband, the defendant will be able to properly educate her sons. There is no suggestion that they would not be able to access a good school outside Rosh Pinah if they go to live with their mother if her circumstances improve. The problem that faces the Court as upper guardian of the minor children is that in view of the uncertainty about the defendant’s immediate future, it is not possible to establish with any degree of certainty what would be a reasonable level of support she would require from the plaintiff to be able to care for the children, if custody were awarded to her. The amounts the defendant seeks as maintenance in respect of the two children in her counterclaim3 seem very speculative and do not seem to have any rational basis at all if one has regard to the fact that she has to secure own accommodation at Rosh Pinah once she leaves the common home.


[22] On the plaintiff’s version, which was not shaken, the defendant spends lot of time away from home, although I got the impression that she felt very unwelcome at home because of the friction between the two of them brought about by the breakdown in the marriage. She drinks and smokes and this seemed to me to be a source of friction with her husband. The plaintiff related an occasion when the defendant and friends (accompanied by the two minor children) were asked to leave an entertainment place because of her behavior which was attributable to her and the friend’s drinking. (The defendant confirmed the incident.)


[23] From the defendant’s evidence, the plaintiff’s weaknesses are:


  1. His inflexibility towards the wife: he does not allow her any housekeeping allowance or to let her run the home. She is not even allowed to receive treatment on his medical aid;


  1. He buys the food for the house himself and does not allow the wife to cook the food he buys and she is expected to buy her own food;


  1. Although he owns a car, he does not drive the wife to and from work and she is expected to walk.


[24] Although the suggestion was made that the plaintiff in the past exhibited a violent temperament towards her , the defendant could really only prove one incident when, in a fit of rage on account of the defendant accusing him of having sex with his own daughter( from a previous relationship) and the housekeeper, he broke the television and some glasses. I place no weight at all on the other incidents of alleged violence as they were not put to him in cross-examination and he did not have the opportunity to challenge them.




Who should get custody?

[25] It is common cause that it is in the best interest of the minor children that they are kept together and not separated. The bond between mother and child is the strongest when the child is still young. The oldest boy is 10 years and the youngest 7 years. Although the plaintiff has pointed to me some weaknesses in the character of the mother, he has not been able to demonstrate to me that she is not a fit mother. The trauma that will come with the separation of their parents in the most immediate aftermath of the divorce requires that the minor children have a stable environment which, as far as possible, is close to that which they are at the moment accustomed to. I am alive to the fact that the minor boys in the present matter are still young. Young children should, as far as possible, be left in the care of the biological mother because that is when the mother/child bond is strongest and when children require motherly affection and protection the greatest. That is however not an inflexible consideration.


[26] Since the rift in the marriage developed, the plaintiff and defendant sleep in separate bedrooms. Initially both boys slept in the same room as the mother but M (the eldest) has since moved in with his father. This to me demonstrates the elder boy’s growing attachment and emotional bond with the plaintiff.


[27] I have carefully considered the implications of removing the boys from the custody of the mother and placing them with the father. On the facts before me the plaintiff has established on balance of probabilities that he spends more time with the children than the mother and that there is a strong bond between him and the sons. He has also established on balance of probabilities that the “least detrimental” available alternative for safeguarding the two minor children’s growth and development, and their emotional and physical security, is to award their custody and control to him.


[28] The primary reason that sways me in awarding custody in this case to the father is the uncertainty about the future of the defendant. The boys are at the moment in a very stable and settled environment. In addition, the father is no less doting and devoted to them and has a proven ability of investing a lot of time in their upbringing. He is in a very secure employment and has a reasonably comfortable and spacious home. He has a housekeeper who does and can look after the boys while he is at work. His devotion compels him to return home after work at about 16h00 every day in order to prepare food for the boys and to assist them with school work.


[29] The personal circumstances of the father lend themselves better to him devoting more time to the children than the mother would. She works at a video shop and works either from 8h00 - 15h00 or from 15– 21h00. That routine is going to continue for the foreseeable future. During the time that she would be required to work the afternoon to late evening shift, the minor children will be with persons who are not their parents and in a home which is not either parent’s. By contrast, while the father is at work the children will be cared for in the very same home to which they are accustomed by a housekeeper to whom they are used.


[30] If the defendant and the children leave Rosh Pinah and relocate to Usakos whence she came, they would no longer enjoy the benefit of free primary education which the plaintiff’s employer provides.


[31] I am mindful that in terms of sec. 5(1) of the Children’s Status Act, No. 6 of 20064, a parent against whom an adverse custody order has been made by the High Court may at any stage approach the children’s court for a variation of the order if circumstances have changed. The defendant would be able to have recourse to the children’s court when her personal circumstances change and should she feel that the minor children would be better off being in her physical care.



Maintenance claim of the defendant

[32] The defendant claims N$500 per month maintenance for herself, escalating by 10% per annum. I can only award her maintenance if it is proven on a balance of probabilities that she is in need of it5. Although the plaintiff, by agreement between the parties, proceeded to obtain a restitution order at the commencement of the trial - based on the wife’s alleged constructive desertion - the defendant specifically reserved her right to pursue the maintenance claim against the plaintiff. Our law recognises that whether or not maintenance should be paid by one spouse to the other after divorce would be influenced by who was responsible for the breakdown of the marriage.6 I must point out at once that based on the evidence that was led before me, there is sufficient cause to justify the granting of divorce in favour of either party on account of the conduct of the other. Therefore, in adjudicating the maintenance claim of the wife I am satisfied that the plaintiff’s conduct - as is hers’ in respect of the plaintiff- justified the Court granting her a restitution order.


[33] The duty to pay maintenance, and the quantum thereof, will hinge on the ability of the guilty party to pay, the ability of the innocent party to earn an income for her own maintenance, and the period for which the marriage lasted.7 The innocent party is not entitled to be placed in the same position in regard to maintenance as if she were still married to the husband, although she need not show actual necessity.8


[34] The defendant testified that she had become financially self-supporting while living with the plaintiff in the matrimonial home. I have already mentioned that she has disposable income of about N$2 000 per month.


[35] The plaintiff on the contrary earns an income of N$19 000 and has a total monthly expenditure of N$5 650. 00. He therefore has a disposable income of about N$14 000 per month. He enjoys free housing, water and electricity. At the moment the defendant also has the benefit of that free housing, water and electricity. It is common cause between the parties that the defendant will leave the common home and will have to find alternative accommodation in Rosh Pinah for the duration of her stay in the mining town. It is equally common cause that accommodation is quite expensive in Rosh Pinah and that the defendant will have great difficulty affording rented accommodation there. That the defendant would therefore be unable to afford reasonable accommodation on her disposable income of N$2 000 is therefore obvious. The evidence shows that she would have to pay anything between N$2500 and N$4000 to get own accommodation in Rosh Pinah. Alternatively, she would have to move in with friends. She would have to contribute to household expenses even in the latter event.


[36] It is also not in dispute between the parties that the most likely scenario is that the defendant will leave Rosh Pinah to seek a new life either in Usakos or on the coast. If she does so she would have to give up her employment in Rosh Pinah while she seeks alternative employment. That would mean that she would have no income in the meantime. I cannot agree with Mr Denk’s suggestion that the defendant by her own admission is financially independent of the plaintiff. That submission loses sight of the fact that the defendant’s present “financial independence” is accounted for by the fact that she does not have to pay for accommodation9 at the moment and that, in any event , she will become unemployed in the foreseeable future when she leaves Rosh Pinah to start a new life.


[37] I am satisfied that the defendant’s claim to rehabilitative maintenance in the amount of N$500 per month is therefore reasonable and is sufficiently borne out by the totality of the evidence that had been led before me. Doubtless, she is a young woman who is capable of working and should be encouraged to find work and to care for herself. I intend therefore to limit the duration of her maintenance entitlement from the plaintiff, based on what I think is a reasonable period during which to find her feet.


[38] In view of the conclusion to which I come that the defendant is entitled to rehabilitative maintenance, she meets the test of substantial success in respect of the maintenance claim, while the plaintiff similarly meets the test of substantial success in respect of the claim for custody and control over the minor children. I take the view, therefore, that this is an appropriate case in which to order that either party bear their own costs.


Order

[39] I accordingly make an order in the following terms:


  1. Custody and control of the minor children is awarded to the Plaintiff, Mr Neil Ronald Samuels, with reasonable access to the defendant as follows:



  1. The Defendant shall be entitled to have the children with her

every alternative weekend and every alternative long and short school holiday which holiday shall be varied so that the defendant shall have the said children every alternative December holiday.


  1. The plaintiff is directed to pay maintenance to the defendant in the amount of N$500 per month, escalating by 10% per annum. The maintenance shall be payable only for a period of 24 months from the date of this order. The first payment shall be due and payable on or before the 7th of April 2010 and shall thereafter be payable on or before the 7th day of every month until the obligation to pay maintenance comes to an end.


  1. There shall be no order as to costs.






_______________________

DAMASEB, JP


ON BEHALF OF THE PLAINTIFF: Mr Denk


Instructed By: Kirsten & Company


ON BEHALF OF THE DEFENDANT: Mrs Petherbridge


Of: Petherbridge Law Chambers


1 DM v SM 2008 (2) NR 704 (HC) at 706, Para [4]; approving similar dicta in McCall v McCall 1994 (3) SA 201 (C) at 204I-J.

2 P v P 2007 (5) SA 94 (SCA), Para [24] at 101J/102A.

3 In her counterclaim she asks for N$800 per child per month escalating by 10% per annum and seeks an order compelling the plaintiff to keep the children as dependants on his medical aid.

4Despite anything to the contrary contained in any law, a children’s court may, if circumstances have changed, alter an order of the high Court pertaining to custody, guardianship or access made in connection with a divorce or in any other proceedings”.

5 Van Wyk v Van Wyk, 1954 (4) SA 594 (W) at 595 A-H

6 Croes v Croes, 1960 (4) SA 211 (CA): See the reference to “guilty party” and “innocent party”.

7 Ibid at 212 C-E

8 Martins v. Martins, 1959 (4) SA 218 (O);

9 Which includes free electricity and water.


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