Court name
High Court
Case number
3742 of 2010
Title

Burger v Burger and Another (3742 of 2010) [2012] NAHC 273 (10 October 2012);

Media neutral citation
[2012] NAHC 273
Coram
Miller AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 3742/2010



In the matter between:








ERNEST JOHANNES BURGER
....................................................................PLAINTIFF








and








LISINDA BURGER
...............................................................................1ST
DEFENDANT



GAWIE ROSSOUW
.............................................................................2ND
DEFENDANT


















Neutral citation:
Burger v Burger & another ( I 3742/2010) [2012] NAHCMD
15 (10 October 2012)








Coram: MILLER AJ



Heard: 02
October 2012; 03 October 2012



Delivered: 10
October 2012















ORDER





The second defendant is
held liable to compensate the plaintiff in damages in the amount of
Ten Thousand Namibian Dollars (N$10 000 00). Interest a tempore morae
on the amount of N$10 000.00 at a rate of 20% per annum from date of
judgment until date of final payment. The plaintiff is awarded costs.










JUDGMENT





MILLER AJ:








[1] In this matter the
Plaintiff Mr. Ernest Johannes Burger instituted proceedings by way of
action against his wife Mrs. Lisinda Burger and Mr. GawieRossouw as a
2nd defendant. He claimed from the 1st
defendant an order for dissolution of the marriage and certain other
relief. Those proceedings against the 1st defendant become
finalized and the marriage was dissolved by order of this court.








[2] The proceedings
before me concern only the plaintiff’s case against the 2nd
defendant to whom I shall for the remainder of this judgment
refer to simply as the defendant. As against the defendant the
plaintiff’s claim is based on adultery in respect of which the
plaintiff seeks damages in the sum of fifty thousand Namibian Dollars
(N$50 000-00). The second claim relates to the alleged loss of the
affection, comfort, society and services of the Plaintiff’s
former wife and in that regard the plaintiff claims a further Fifty
Thousand Namibian Dollars (N$50 000-00) against the defendant.








[3] At the conclusion of
the hearing Mr. Petherbridge who appeared on behalf of the plaintiff
conceded correctly in my view that the plaintiff’s claim in
respect of the loss of consortium cannot be sustained. It would
appear that the marriage between the plaintiff and his former spouse
became strained for financial reasons and that eventually led to the
breakdown of the marriage.








[4] All that remains to
consider as a consequence is whether the plaintiff is entitled to any
damages based on the contemilia the alleged suffered as a result of
the adulterous relationship between the defendant and the plaintiff’s
former wife. It must be borne in mind that since the defendant denies
that there was an adulterous relationship between him and the
plaintiff’s wife, the onus of proving the case against the
defendant rests upon the plaintiff. That onus the plaintiff must
discharge on a balance of probabilities. I heard the evidence of 3
witnesses being the plaintiff, the defendant and the plaintiff’s
former spouse.








[5] In the end the
dispute remains one of fact in the sense that I must consider whether
on the facts accepted by this court and the probabilities of the
matter and the circumstances surrounding the case, the plaintiff had
succeeded in discharging the onus resting upon him and to which I
have referred. I have to add immediately that it was not denied by
any of the parties and indeed it was common course that during the
latter stages of the marriage between the plaintiff and his former
wife, a relationship of some sort had developed between the
plaintiff’s spouse and the defendant.








[6] All that remained in
dispute virtually was what the nature of that relationship was. The
defendant and the plaintiff’s wife who both admitted the
existence of some relationship, contented before me that relationship
was no more than a platonic one at the time and they contend further
that a sexual relationship developed after the marriage between the
plaintiff and his wife was dissolved. There is no direct evidence
before me that the defendant and the plaintiff’s wife had
committed adultery during the subsistence of the marriage.








[7] The question remains
whether there is circumstantial evidence sufficient to discharge the
onus resting upon the plaintiff to prove that an adulterous
relationship had existed during the course of the marriage. I will
have to consider the evidence and evaluate it and thereafter consider
whether the plaintiff’s case has been proved. The plaintiff’s
evidence and it is again is common course, is to the effect that the
plaintiff, his wife and the defendant were friends who met on various
occasions at functions and so forth. He testifies that on the 28
December 2009 he and his wife attended a function at Rosh Pinah were
they all lived.








[8] During the course of
the function he noticed that his wife had left the room in which they
were and had gone outside. When she did not return after a while he
went looking for her and found her with the defendant sitting on a
bench in the vicinity of the swimming pool. According to him his wife
was sitting across the length of the bench with her legs tucked
underneath the defendant and he noticed that the defendant’s
left hand was between the legs of his wife.








[9] He later confronted
the defendant of what he had seen and the defendant apologized and
promised not to interfere in their relationship. He testified that
shortly thereafter on the 3rd of May 2010 the parties were
again at some function. He noticed his wife left in the direction of
the toilets followed by the 2nd defendant. He also
followed to see what was going on and in the vicinity of the toilets
he found the defendant and his wife in an embrace and they were
kissing one another. He testifies further that once more he noticed
that the defendant had his hands between his wife’s legs.








[10] He became angry and
noticed that the defendant had locked himself in one of the toilets.
He broke down the door and pulled the defendant out. Some other
people intervened and the defendant left in his vehicle.








[11] From certain cell
phone records that were handed in, it appears that there was regular,
almost daily contact between his wife and the defendant. He also
testifies that his wife stayed out late at night and sometimes only
returned at 3 or 4 o’clock in the morning.








[12] He says that on one
occasion he drove in the direction of the defendant’s house and
parked some distance from the house. He phoned his wife, but she did
not answer her phone. He then phoned the defendant. The defendant
answered the phone and upon enquiries by the plaintiff as to where
his wife was, the defendant mentioned to him that his wife was not at
his house and that he the defendant had already gone to bed. Shortly
thereafter he noticed his wife emerge from the house of the
defendant.








[13] As I had indicated
the defendant and the plaintiff’s wife while admitting the
relationship between them, testified to the effect that the
relationship remained a platonic one at all prevalent times.



[14] More particularly
the evidence of the defendant and the plaintiff’s wife was to
the effect that on both occasions, that is when they were at the
swimming pool and the occasion of the 3rd May 2010 that
the defendant did not have his hand between her legs.








[15] This evidence if
accepted will indicate that the relationship was not as platonic as
the defendant and the plaintiff’s wife wish it to be.








[16] It is also common
cause that on the evening of the 3rd May 2010 when the
defendant and the plaintiff’s wife where at the toilets, they
were in fact kissing. The plaintiff’s wife’s testimony is
to the effect that this was a spur of the moment impulse which she
could not otherwise explain.








[17] I found the
plaintiff to be a good witness. The only possible criticism of his
evidence is that he contended that as a result of the relationship
between his wife and the defendant he will be denied promotion at his
work. That I find improbable and the plaintiff admits that thus far
his fears in that regard had not materialised.








[18] As far as the 2nd
defendant and the plaintiff’s wife are concerned, my impression
of them is in that both tried to minimize the extent of relationship
and in so doing were not fully honest with the court. I have
indicated that both on the occasions of the 28th December
2009 and the 3rd May 2010, the plaintiff’s evidence
was to the effect that the defendant had his hand between the legs of
the plaintiff’s wife. This rather crucial and very relevant
fact was not disputed by the defendant in the cross-examination. It
was first denied during the course of the defendant’s evidence.








[19] During the course of
argument I raised this aspect with Mr. Small who appeared for the
defendant. Mr. Small’s attitude was that this allegation
relating to both occasions was indeed denied and put to the plaintiff
during cross examination as being false.








[20] I did not have a
note of Mr. Small’s contention and I thereafter postponed the
proceedings in order that the cross-examination of the plaintiff by
Mr. Small be transcribed. I have since been provided with a
transcript and it is apparent that this particular allegation was
never put to the plaintiff as being false.








[21] I will not go so far
as to content or to say that Mr. Small tried to mislead the court,
but counsel must be careful that they do not make positive assertions
that the record will not bear it out.








[22] There is further a
direct conflict between the defendant and the plaintiff’s wife
as to her alleged presence at the home of the defendant on the
occasion that the plaintiff said he had gone there.








[23] The defendant flatly
denied that the plaintiff’s wife had been to his house at that
time. His evidence was to the effect that the plaintiff’s wife
never came to his house in the early hours of the morning. When the
plaintiff’s wife gave evidence, she admitted to having been
there on one occasion and went on to explain that her presence there
was accounted for by the fact that after the bar at which she was had
closed, she and some other friends went to the defendant’s
house for a night.








[24] Considering the
evidence in its totality, I am persuaded that the evidence of the
defendant and the plaintiff’s wife as to the nature of their
relationship is patently false.








[25] I find that in fact
the relationship between the defendant and the plaintiff’s wife
was anything but merely a platonic relationship. Looking at the facts
in their totality, I am satisfied that on a balance of probabilities
the relationship was an adulterous one. And I find accordingly.








[26] As far as the
quantum of the plaintiff’s damages of are concerned, I take
account of the fact that he lives in a small community where people
know each other’s affairs and accept that as a result of these
incidents he had lost some friends and his social life became
impaired.








[26] As I had indicated
his evidence to the effect that his chances of promotion at his place
of work are jeopardized is not borne out by the evidence and the
probabilities of the case. I will also take into account the fact
that modern day society has become more tolerant towards incidences
of adultery and that must reflect on the amount of damages I must
award.








[27] I also take account
of the fact that this relationship between the defendant and the
plaintiff’s wife developed after the marriage relationship
between the plaintiff and his wife had become strained and was in the
process of breaking down.








[28] In the premises, I
will accordingly make the following orders:









  1. That the defendant is
    ordered to compensate the plaintiff in damages in the amount of Ten
    Thousand Namibian Dollars (N$10 000 00).



  2. Interest a tempore morae
    on the amount of N$10 000.00 at the rate of 20% per annum from date
    of judgment until date of final payment.



  3. That the plaintiff is
    awarded costs.





























____________________



P J Miller



Acting Judge


























































APPEARANCES








PLAINTIFF : I
PETHERBRIDGE



Of Petherbridge Law
Chambers








DEFENDANT: A SMALL



Instructed by Cronje & Company