Court name
High Court
Case number
1382 of 2010
Title

Andreas v Kathindi (1382 of 2010) [2012] NAHC 80 (16 March 2012);

Media neutral citation
[2012] NAHC 80
Coram
Parker J





CASE NO












Reportable’








SUMMARY








CASE
NO.: I 1382/2010













IN
THE HIGH COURT OF NAMIBIA













In
the matter between:













ERASTUS
HAILONGA ANDREAS v JOHANNA KATHINDI













PARKER
J








2012
March 16


_______________________________________________________________________


Husband
and wife -
Maintenance – Maintenance of children of the
family – In instance case Court taking into consideration
existing maintenance of the children in the amount of N$1,400.00 per
month as ordered by the Magistrates (Maintenance) Court.







Husband
and wife -
Maintenance – Maintenance of children of the
family – Duty of support – By both parents in proportion
to their relative means and circumstances and the needs of the
children.







Held,
that duty rests upon divorced parents to maintain a child of the
dissolved marriage, and the incidence of the duty in respect of each
depends upon their relative means and circumstances and the needs of
the child from time to time.



















































































CASE NO.: I 1382/2010













IN THE HIGH COURT OF
NAMIBIA













In the matter between:








ERASTUS HAILONGA
ANDREAS
…..............................................................Plaintiff



and



JOHANNA
KATHINDI
….............................................................................Defendant



CORAM:
PARKER J








Heard on: 2012 February
15 – 16



Delivered on: 2012 March
16



_________________________________________________________________








JUDGMENT



_________________________________________________________________







PARKER
J
: [1] The plaintiff instituted the present action against
the defendant which the defendant defends and has also instituted a
counterclaim.






[2]
The personal circumstances and particulars that are relevant to the
matter in hand are as follows: The plaintiff resides at No. 36
Military Base (of the Namibia Defence Force (NDF), Suiderhof,
Windhoek, and he is employed as Master Chef at the Base. His gross
remuneration per month as at December 2011 is N$7,467.25, and his net
remuneration is N$2,630.32. The difference is made up of deductions
amounting to N$4,836.93, which include N$1,400.00 being an amount for
the maintenance of the children as order by the Magistrates
(Maintenance) Court, Windhoek. The defendant is not employed in any
formal sector. She derives an income of averagely N$500.00 per month
by selling meat in front of her home. She testified that her older
brother used to assist her financially to make ends meet but that
source has dried up because the brother was ‘fed up now’
with the arrangement.







[3] The plaintiff and
defendant are married out of community of property. The parties do
not own any immovable property, and they are the joint owners of the
moveable property listed in para 4.4.1 of the defendant’s
affidavit filed pursuant to rule 37(6)(b) of the Rules. There is no
such list in the plaintiff’s rule 37(6)(b) affidavit. In her
affidavit the defendant states, ‘There are no matrimonial
liabilities. That is, there are no outstanding expenses or debts that
have been incurred by the defendant and the plaintiff jointly for the
purposes of running our common house.’ That is not correct. As
Ms Schulz, counsel for the plaintiff, reminded the Court, there is an
amount of N$7,550.00 outstanding on Taimi’s fees and charges as
at 15 November 2012 (Exh B). I shall revert to the issue of moveable
property and the debt of N$7,550.00 in due course. The parties have
reached an agreement that the custody and control of the children be
awarded to the defendant, with the plaintiff having reasonable access
to them.






[4]
There are four children of the family, being:








  1. Taimi Andreas, born 31
    July 1991,



  2. Emilia Andreas, born 9
    October 1994,



  3. Johanna Andreas, born 10
    September 1996, and



  4. Ndinelago Andreas, born
    9 September 1998.







Taimi
is undergoing a four-year course of studies in Electrical and
Electronics Engineering at the Triumphant College, Windhoek (Exh B).
It is not clear from Exh B what qualification Taimi will gain if she
is ‘triumphant’ in her course of studies. She is
presently in her second year. As respects Taimi; Ms Schulz submits
that Taimi’s college ‘is a very expensive school’,
meaning, as I understand it, that Taimi should enroll in a ‘cheap’,
inexpensive college. But we must remember that the defendant
testified that Taimi had informed her that it is her cherished desire
to pursue such a course of study as she wishes to qualify as an
electrical and electronics engineer. I do not think this Court should
assist in any way in killing Taimi’s dream; and what is more,
Ms Schulz did not adduce any evidence tending to show that there is a
cheaper college in Namibia where Taimi can realize her dream. Emilia
is in Grade 12 at Mwandikange Kaulinge Secondary School, Ondobe,
Ohangwena Region (Exh C). Emilia, Johanna and Ndinelago live with
their 92-year old maternal grandmother ‘in the North’.






[5]
I accept as credible the defendant’s evidence that about every
two months she goes to visit them and gives them money on continual
basis for their upkeep ‘in the North’ to enable them to
eat, to bath every day and to have toiletries and clothes. That,
according to the defendant, is her contribution towards supporting
the children. I find it to be unreasonable and unfair Ms Schulz’s
attempt to pin down the defendant to telling the Court how much
amount of money she forks out as her contribution towards the support
of the children living ‘in the North’. The defendant’s
testimony as to what she does by way of supporting these children is
not beyond belief and strange in human experience, considering the
fact that those children are living with the defendant’s
92-year old mother. In any case, no contrary evidence in that behalf
was placed before the Court.






[6]
In her rule 37(6)(b) affidavit and her testimony during the trial the
defendant gave figures representing the financial needs of the
children as follows:







Taimi N$ 1,634.00



Emilia N$ 1,797.00



Johanna N$ 300.00



Ndinelago N$ 300.00








It is worth noting that
all these amounts relate to school fees and school charges and
connected and incidental expenses. They do not cover out-of-school
expenses covering meals, toiletries and clothing and suchlike items
which are necessaries for the upkeep of children.






[7]
In his evidence-in-chief the plaintiff testified that Emilia, Johanna
and Ndinelago live with their material grandmother (as aforesaid) and
their residence is so close to their schools that he does not see the
justification for transport expenses included in the calculation
because they walk to and from school. This piece of evidence remained
unchallenged at the close of the plaintiff’s case. It is
therefore reasonable and fair to reduce by N$100.00 the transport
cost appearing against the names of Emilia, Johanna and Ndinelago.






[8]
From the proposed pre-trial order submitted in terms of rule 37 of
the Rules and the submission by counsel it seems to me clear that the
only remaining dispute dividing the parties is the issue of
maintenance of the children. The defendant claims a maintenance
amount of N$5,000.00 per month for the children. Ms Schulz is correct
in her submission that from the aforementioned calculations set out
previously the amount should rather be N$4,031.00 and not N$5,000.00.
I did not hear Ms Angula, counsel for the defendant, to submit
contrariwise.






[9]
Be that as it may, it is the plaintiff’s position that he is
unable to pay N$5,000.00, and I presume that that applies also to the
new amount of N$4,031.00. And in support of his position the
plaintiff submitted his Pay-slip (Exh A) which shows the amounts I
have set out previously. Apart from his remuneration from his
employer, the evidence establishes that the plaintiff earns between
N$500 – N$800 per month from selling chicken. Added to all this
should be N$50,000.00 that will surely come to the plaintiff qua
‘veteran’ from the Ministry of Veteran Affairs in terms
of the Veterans Act, 2008 (Act No. 2 of 2008). The income from his
chicken trade and the payment from the Ministry of Veteran Affairs, I
must note, were omitted from the plaintiff’s rule 37(6)(b)
affidavit. But this Court can not overlook such income in the present
proceedings. Ms Schulz submitted that the Court should also take into
account the fact that there are other children, apart from the
children of the family, whom the plaintiff is looking after. This is
not stated in the plaintiff’s rule 37(6)(b) affidavit; and so
in virtue of rule 37 I shall not take cognizance of it. In any case,
no evidence relating thereto has been placed before the Court. But I
accept the plaintiff’s evidence that Taimi visits him from time
to time and on those occasions he gives her amounts of money that he
could afford. I assume that this father-and-daughter arrangement will
continue. In ordering the amount of maintenance contained in the
order below I have taken this arrangement into account, as well as
the aforementioned N$1,400.00 ordered by the lower court.






[10]
It has been said authoritatively that in making an order for the
maintenance of a child of the family the Court ought to take into
account that the duty of supporting a child of the dissolved marriage
is common to the divorced parents, and the incidence of the duty in
respect of each parent depends upon their relative means and
circumstances and the needs of the child from time to time (Kemp v
Kemp
1958 (3) SA 736 (D); Ex parte Pienaar 1964 (1) SA 600
(T)). Accordingly, I accept the submission by both counsel on the
point that it is the duty of both parents in the instant case to
support the children; ‘but we must also bear in mind that it is
according to their means,’ Ms Angula added. The court ought to
also take into account the needs of the children, the social status
of the parties, and the length of time for which the maintenance
should be paid (CJM Nathan, South African Divorce Handbook,
1970: p 37). I respectfully accept the aforementioned case law and
textual authority as laying down the correct approach under the law
to be followed when a court is considering the maintenance of
children of the dissolved marriage, and so I adopt them.






[11]
Having carefully considered the evidence as a whole against the
backdrop of the authorities discussed above, I have come to the
conclusion that the order respecting maintenance of the children of
the family I have made below is reasonable and fair and it meets the
justice of the case. Lest I forget, I note that I have not dealt with
moveable property of the family because such property is not itemized
in the parties’ joint proposed pre-trial order as one of the
issues of law or fact to be resolved during the trial. In any case,
no oral evidence was adduced thereanent. As to costs, I make no order
as to costs. In the nature of the case, it would be just and fair
that each party pays his or her own costs.








[12] Whereupon, I make
the following order:









  1. The bonds of marriage
    subsisting between the plaintiff and defendant are hereby dissolved.










  1. By agreement between the
    parties, custody and control of the children are awarded to the
    defendant, and the plaintiff shall have reasonable access to the
    children.










  1. The plaintiff must pay
    N$7,550.00 to redeem the debt owed to Triumphant College by the
    parties in respect of Taimi.










  1. The plaintiff must pay
    as maintenance for the children N$2,431.00 per month, broken
    down as follows –









Taimi 1,634.00



Emilia 1,797.00



Johanna 200.00



Ndinelago 200.00



Sub-Total 3,831.00



-1,400.00 (the
lower court maintenance order)



Total: 2,431.00



========









  1. There is no order as to
    costs.














________________



PARKER J













COUNSEL ON BEHALF OF
THE PLAINTIFF:
Ms F Schulz








Instructed by: PD
Theron Associates













COUNSEL ON BEHALF OF
THE DEFENDANT:
Ms A Angula








Instructed by: Sisa
Namandje & Co. Inc.