Court name
High Court
Case name
Kanyama v Kanyama
Media neutral citation
[2012] NAHC 150
Judge
Van Niekerk J



















REPUBLIC
OF NAMIBIA






CASE
NO: I 267/2008


IN
THE HIGH COURT OF NAMIBIA


MAIN
DIVISION, HELD AT WINDHOEK






In
the matter between:






ERENSTINE
TALENI KANYAMA (born ELAGO) .........................Applicant






and






ALUGODHI
PAULUS KANYAMA ............................................Respondent






CORAM:
VAN
NIEKERK, J






Heard:
30 May 2012


Delivered:
20 June 2012


___________________________________________________________________


JUDGMENT
: RULE 43 APPLICATION


VAN
NIEKERK, J:
[1]
This is a rule 43 application in which the applicant claims
maintenance for herself and three children
pendente
lite
.
She also claims a contribution to legal costs. The applicant is the
defendant in an action for divorce instituted by the respondent. She
also instituted a counterclaim against the respondent.


[2]
The application, to which the respondent has filed a sworn reply, was
previously set down for hearing. At the time there were certain
annexures referred to in the application which the applicant failed
to attach. The application was withdrawn and subsequently replaced by
a fresh application, which is virtually the same word for word,
except that the annexures are now attached and where the applicant
previously mentioned that her family was assisting her to pay for
certain expenses, she now states the names of the particular family
members and attaches their confirmatory affidavits. Also attached is
an affidavit previously made by the eldest daughter in support of an
application for a protection order against the respondent in November
2010, which order was subsequently withdrawn.


[3]
Mr
van
Vuuren
for
the respondent pointed to the fact that the applicant states in her
sworn statement that she has never been employed, that she has always
been a homemaker and that in fact she cannot work as a the result of
a mental illness for which she is being treated. Yet, he pointed out,
in the above-mentioned affidavit made by the daughter on 17 November
2010, mention is made to the effect that the applicant did in fact
work as from middle 2008 and that she was earning N$8 000-00 per
month at the time the affidavit was made. In the first sworn reply
(as well as the second sworn reply) the respondent takes issue with
the allegations made by the applicant. He states that she can work
and that she indeed was employed by Komesho Enterprises during 2006.
Mr
van
Vuuren
submitted
that on the applicant’s papers there were contradictions
regarding the issue of whether she had ever been employed.
Furthermore, although she had the benefit of the respondent’s
first reply, she elected not to clarify the disputed issues in the
second application. As a result, counsel submitted, there is a
question mark as to the applicant’s truthfulness and her
bona
fides
.
I must say that this aspect is most disturbing and I have given
serious consideration to dismissing the application without any
further ado. However, I am concerned about the maintenance for the
three children, who are innocent in this affair.


[4]
It seems to me that on the respondent’s own version he does not
provide any money for clothes or pocket money for the children PK and
NK. The applicant claims N$600 and N$500 for these items per child,
which she says is being paid by her sister. These amounts seem
reasonable and the respondent should pay them. In the case of PK who
is already 23 and studying at the Polytechnic, he may pay the amount
directly to her. In the case of NK who is only 16 and still a
scholar, the money should be paid to the applicant for use in respect
of NK. As far as the other amounts claimed are concerned, I am
inclined to accept the respondent’s version that he is already
paying for groceries and other household expenses and provides
transport.


[5]
The position of the child AK is more difficult. He is 19 years of age
and during 2011 he was enrolled for studies in South Africa at the
respondent’s expense, which are considerable. The applicant
states that he had to interrupt his studies and return to Namibia
because the respondent refused to assist him further with his
studies. However, this does not convey the whole picture, as it is
clear from the respondent’s reply that the particular
university refused the child re-admission for the next year because
he was not serious about his studies and did not make satisfactory
academic progress. The child is now enrolled for studies at UNAM for
which the applicant’s sister is paying. The applicant claims
maintenance for him in respect of groceries, toiletries, transport,
clothing and pocket money. The respondent states that AK works as a
disk jockey at a night club. He already alleged this in the first
sworn reply. The applicant has not dealt with this allegation at all
in the second application. I assume that she cannot dispute this
allegation otherwise she would have dealt with it in the second
application. The respondent states that AK lives in the common home
shared by the parties, that he never asks for monetary assistance and
does not speak to the respondent. The respondent’s attitude is
that he is not liable to maintain AK because he has not shown a
reasonable aptitude for furthering his studies at an acceptable
level.


[6]
I agree that the respondent need not pay for the child’s
studies, as he has not applied himself before. However, as the child
is not a major, it is trite that the parents are liable to maintain
him until the age of 21 unless he is self-supporting. It appears from
the papers that the relationship between the parties and between AK
and the respondent is strained and that there is very little
communication. However, they all live in the same house and I think
that it is incumbent upon the respondent as the parent to make it his
business to ensure that AK is properly maintained, even if his
conduct and way of life do not meet the respondent’s approval.
I accept that the respondent provides a roof over the child’s
head and groceries and other household items. I shall assume it
includes toiletries. I further accept that, while studying, AK has
some employment. He can therefore pay for his own entertainment. I
shall however order the respondent to pay N$600 for clothing and
N$750 for transport on a monthly basis in respect of AK.


[7]
The applicant claims maintenance for herself as well as a
contribution to her legal costs. In the light of my earlier findings
about her
bona
fides
I
am not prepared to consider her claims. In any event, she has not
laid a proper basis for her claim for a contribution to costs (see
Dreyer
v Dreyer
2007
(2) NR 553 (HC); Erasmus
Superior
Court Practice
B1
315-316).


[8]
In my view the outcome of this application is such that it is fair to
order that each party bears his/her own costs.


[9]
In the result the following order is made:



  1. The
    respondent shall pay the amount of N$1 100 per month as maintenance
    pendente
    lite
    to
    PK, the second eldest child of the parties.








  1. The
    respondent shall pay the amount of N$ 1 100 per month in respect of
    the minor child NK and N$1 350 in respect of the minor child AK to
    the applicant as maintenance
    pendente
    lite
    .








  1. The
    first payment shall be made on or before 7 July 2012 and thereafter
    on or before the 7
    th
    day of each
    consecutive month.








  1. Each
    party shall bear his/her own costs.











________________________


VAN
NIEKERK, J


































Appearance
for the parties


For
the applicant: Mr A Small


Instr.
by Kirsten & Co. Inc






For
the respondent: Mr A S van Vuuren


Instr.
by Du Pisani Legal Practitioners