Court name
High Court
Case name
Klazen v Master of the High Court of Namibia and Others
Media neutral citation
[2012] NAHC 96
Judge
Miller AJ













CASE NO.: A 326/2010







NOT REPORTABLE







IN THE HIGH COURT OF
NAMIBIA











In the matter between:











JAKOBUS PETRUS KLAZEN
…...............................................................
APPLICANT







and







THE MASTER OF THE HIGH COURT OF
NAMIBIA ….................1ST
RESPONDENT



IRVIN DAVID TITUS N.O
…............................................................2ND
RESPONDENT



GERHARD ENGELBRECHT
….......................................................3RD
RESPONDENT











CORAM: MILLER, AJ







Heard on: 07-08 February 2012, 01
March 2012



Delivered on: 04 April 2012











JUDGMENT











MILLER, AJ.: [1] In this
matter the applicant seeks a declarator that he was legally adopted
by the late Maria Engelbrecht and her husband on 21 March 1967.







[2] The matter is opposed by the third
respondent who is the only biological child of the late Mrs.
Engelbrecht to whom I shall refer to henceforth as the deceased. The
first and second respondents took no part in the proceedings.







[3] Although the deceased left a will,
the presiding magistrate at Rehoboth found the will to be invalid and
ordered that the deceased’s estate be dealt with as an
intestate estate in terms of Section 4 of Proclamation 36 of 1941.







[4] Likewise a Deed of Donation dated
17 February 1997 allegedly signed by the deceased and in terms
whereof the deceased donates her farm, Riet No. 287, and an immovable
property namely Erf 91, Block B, Rehoboth to the third respondent was
not accepted by the first respondent. The first respondent was of the
view that, based on facts obtained from the police, the purported
signature of the deceased was placed on the Deed after she had passed
away. There the matter remained and nothing turns on either the will
or the impugned Deed of Donation in this matter.







[5] The only issue which requires
consideration is whether the applicant succeeded in establishing on a
balance of probabilities that he was in fact legally adopted by the
deceased and her then husband.







[6] In his founding affidavit the
applicant states in October 2004 the third respondent alleged that
the applicant was not adopted by the deceased and her husband and
challenged the applicant to provide proof of that fact.







[7] The applicant states that he then
made enquiries at the magistrate’s office in Rehoboth.







[8] Eventually as he says, he was
provided with a certified extract of the Adoption Record Book kept at
the magistrate office. He annexed this extract to his affidavits as
“JPK4”.







[9] I attach a copy of the sworn
translation of this extract to this judgment. With reference to the
entry numbered 4/66, he claims that to be a record of his adoption.







[10] Not surprisingly perhaps, this
extract became hotly contested by the third respondent.







[11] The third respondent argues that
by itself the extract is not sufficient to establish that there had
been compliance with all the legislative provisions required to
lawfully adopt a child.







[12] When the matter was first argued
before me Mr. Narib who appeared for the third respondent submitted
in addition that Annexure “JPK4” was not admissible by
its mere production.







[13] I need not say more about this
argument. The reason for that is that I directed that the
circumstances relating to the entry numbered 4/66 be referred to oral
evidence, and postponed the matter for this purpose. I subsequently
heard the evidence of several witnesses on this issue.







[14] The first witness called was Ms.
Vleermuis. She is employed at the Rehoboth magistrate’s court
as a principal legal clerk. She produced in evidence the original
Adoption Record Book from which the extract Annexure “JK4”
was made. According to her, the purpose of the book is exactly what
its name implies. In it is recorded the details of all applications
to adopt a child, as well as the names of the applicants, those of
the child and the parent or parents of the child. Once finalised the
finding is recorded and in this regard she refers to the word
“granted” in the appropriate column. The relevant file
together with the adoption order in triplicate is then forwarded to
the Registrar of Adoptions. According to her a copy is returned by
the Registrar of Adoptions together with the serial number of the
Registrar of Adoptions. In this case she refers to the number 1127 in
the appropriate column.







[15] She also testified that the
Adoption Record Book is kept in a strong room to which only she and
the magistrate have access. This fact is confirmed by Mr. Hangalo,
the magistrate at Rehoboth.







[16] The adoption papers together with
the file has disappeared and cannot be traced according to her.







[17] I turn to the evidence given by
Mr. Hillebrecht. He is the chief archivist at the National Archives.
He personally conducted a search for the files of the Registrar of
Adoptions which should have been archived. Although he was able to
locate file number 1126 and 1128, file 1127, which is the applicant’s
file was not there. He then established that at some stage in the
past, the adoption files were separated. The adoption files relating
to members of the white population were separated from the rest and
re-numbered. The remaining files were transferred to various other
Ministries.







[18] This according to him took place
in 1973. He was not able to ascertain where those files presently
are.







[19] Mr. Marcus, who is the head of
administration at the Rehoboth magistrate’s office confirms
that the files pre-dating 1973 cannot be found.







[20] There is nothing to suggest on
the evidence in its totality that the entry made in the Adoption
Record Book is anything other than authentic and made in the ordinary
cause of proceedings at the time. Clearly there was an application
made by the deceased and her husband to adopt the applicant. The
record book reflects that the application was granted. In the absence
of anything to the contrary, I accept that the order made in granting
the application was a lawful and binding order. The evidence is
sufficiently cogent and persuasive to warrant such a finding and I
say this despite the fact that the relevant records of the adoption
could not be produced. It must also be borne in mind that the
adoption order, once made by the magistrate remains a valid order
until it is set aside by a competent court.







[21] In the result I grant paragraph 1
of the prayers in the Notice of Motion together with an order that
the third respondent must pay the applicant’s costs. Such costs
will include the costs of one instructing and one instructed counsel.



















__________



MILLER
AJ



















































































ON BEHALF OF THE APPLICANT: Mr.
Small



INSTRUCTED BY: Francois Erasmus
& Partners







ON BEHALF OF THE 3RD
RESPONDENT: Mr. Narib



INSTRUCTED BY: Kwala &
Company Incorporated