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REPORTABLE

SUMMARY

CASE NO.: I 3263/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

J S v S N S

PARKER J

2010 September 16

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Husband and wife - Matrimonial property regime – Marriages governed by Proc. 15 of 1928 – Principles enunciated in Nakashololo v Nakashololo 2007 (1) NR 27 thereanent confirmed and applied – In instant case Court finding that the parties did not within one month prior to the celebration of their marriage declare jointly before the marriage officer that it is their intention and desire that community of property and of profit and loss shall result from their marriage.

Practice - Trial – Absolution from the instance at the close of the plaintiff’s case – Principles enunciated in Bidoli v Ellistron t/a Ellistron Truck & Plant 2002 NR 451 confirmed and applied – Court finding that in instant case the defendant has made out a case for the grant of the relief sought – Accordingly Court granting absolution from the instance with costs.

Held, that the plaintiff has failed to lead sufficient evidence to prove that within one month prior to the celebration of her marriage with defendant the plaintiff and the defendant did declare jointly before the marriage officer that it was their intention and desire that community of property and of profit and loss shall result from their marriage.

Held, further, that it is not enough in terms of the clear words of s. 17 (6) of Proc. 15 of 1928 that the parties believed and agreed as between themselves that the consequences of their marriage shall be one in community of property: the intending spouses’ desire and agreement must, in order to satisfy the requirements of s. 17 (6) of the Proc. 15, manifest themselves in a declaration made before a marriage officer.

Held, further, that there is no evidence upon which a Court, applying its mind reasonably to such evidence, could or might find for the plaintiff.

CASE NO.: I 3263/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

J S Applicant/Defendant

and

S ND S Respondent/Plaintiff

CORAM: PARKER J

Heard on: 2010 July 13 – 22

Delivered on: 2010 September 16

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JUDGMENT

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PARKER J: [1] The plaintiff instituted action in October 2006 respecting a matrimonial matter in which she prayed for (1) an order for the restitution of conjugal rights, and failing which, a final order of divorce, (2) division of the joint estate, (3) costs of suit (only if the action is defended), and (4) further and/or alternative relief. The matrimonial action is defended. The defendant filed both a plea and a counterclaim. In his counterclaim, the defendant has prayed for (1) condonation of the defendant’s adultery, (2) an order for restitution of conjugal rights, and failing which, a decree of divorce, (3) costs of suit (only if defended), and (4) further and/or alternative relief.

[2] Both counsel – Ms. Kangueehi-Kanalelo for the plaintiff and Ms. Angula for the defendant – are of one mind that in the present proceedings I should determine one question only. The question is this: what matrimonial property regime governs the parties’ marriage; that is to say, are the parties married in community of property or out of community of property? Thus, the trial proceeded on the basis that to succeed, the plaintiff ought to prove, as averred in the plaintiff’s Particulars of Claim, that the ‘parties were married together in community of property at Oshigambo … on 14 July 1979’.

[3] That the parties married together at Oshigambo is not in dispute. It is also not in dispute that at the time the parties married, the parties were domiciled in what was known as Ovamboland and further that Oshigambo where the marriage was celebrated lies beyond the so-called Red Line; thus, bringing the interpretation and application of s. 17 (6) of the Native Administration Proclamation, 1928 (Proclamation 15 of 1928) (the Proclamation) into play in these proceedings. (See Nakashololo v Nakashololo 2007 (1) NR 27 at 28H-29E.)

[4] Section 17 (6) of the Proclamation provides:

A marriage between natives, contracted after the commencement of this Proclamation, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate or marriage officer (who is hereby authorized to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage.

As I observed in Nakashololo v Nakashololo supra at 29F-G –

The substance of s. 17 (6) is simply as follows: ‘black’ persons who marry by civil marriage north of the ‘Red Line’ will be married out of community of property. The intending spouses may, however, at any time within one month prior to the solemnisation of the marriage declare jointly before a marriage officer that they wish to be married in community of property. Thus, unless ‘black’ persons who marry north of the ‘Red Line’ make such declaration, they will be married out of community of property, but not by antenuptial contract.

It follows indubitably and reasonably that just as it was in Nakashololo v Nakashololo supra at 29H, the single question that I must determine in these proceedings is this: did the parties jointly make such declaration one month before the celebration of their marriage?

[5] In answering this question I must inevitably look at the pleadings to see what the plaintiff has told the Court and the opposite party in the suit what her case is because that is the case which the defendant is called upon to meet and the Court to adjudicate. In her particulars of claim the plaintiff avers that the ‘parties were married together in community of property at Oshigambo, Republic of Namibia on 14 July 1979 which marriage still subsists.’ This averment is repeated in the plaintiff’s plea to the defendant’s counterclaim where the plaintiff states –

Defendant admits the date and place of marriage, but denies that community of property is excluded as between the parties. The parties declared before the marriage officer that their marriage will be one in community of property as indicated on their marriage certificate. The Defendant avers further that the parties at all relevant times, despite the provisions of the Proclamation cited believed and agreed as between themselves that the consequences of their marriage will be one in community of property.

[6] My next logical port of call is to decide whether the parties qua intending spouses at the material time did one month previous to the celebration of their marriage declare jointly before the marriage officer that it is their intention and desire that community of property and of profit and loss shall result from their marriage. On the evidence led thus far, I make the following important factual findings whose probative value conduces in a great measure to so deciding. In this regard the evidence of Pastor Elago (one of the plaintiff’s witnesses) who solemnised the marriage is apropos and significant. His evidence in material respects is briefly this. When he solemnised the marriage between the plaintiff and the defendant he had had 38 years’ experience under his belt. What is indubitably significant and relevant for my present purposes is the following: On the day of registration of their marriage Pastor Elago explained to the intending spouses all the proforma forms in his possession that are required by law for the purposes of marriage. The only completed form which was admitted as part of the evidence and which has probative value is (let me call it at this point) form ‘X’. Form X elicited certain details about both the bride (the plaintiff) and the bridegroom (the defendant) and some particulars of the marriage. Form X in the original bound Marriage Register is numbered No. 15 The original, in Afrikaans, was admitted as Exh. B1 and the English sworn translation as Exh. B2.

[7] It is significant to note that in his in-chief-evidence Pastor Elago testified that he completed Exh. B1 and thereafter instructed the parties to affix their respective signatures to the relevant spaces provided for on Exh. B1; that is to say, none of the parties completed Exh. B1 himself or herself. But from his cross-examination-evidence, it emerges irrefragably that Pastor Elago not only completed B1 in his own handwriting but he also in his own handwriting wrote the names of the parties in the appropriate areas where the parties should have affixed their respective signatures in order to create the impression that the parties had affixed their respective signatures thereto. Pastor Elago explained why he did that, and so for the purposes of the present proceedings I do not impute any criminal conduct on his part.

[8] In my opinion all this evidence contradicts – in material respects – the evidence of the other plaintiff witnesses who had given evidence earlier that they and the parties had affixed their respective signatures appearing on Exh. B1. Even a more significant and weighty piece of testimony in Pastor Elago’s evidence that contradicts the testimonies of the other plaintiff witnesses is the following. It was only on the day of the registration of the marriage that he explained to the parties the matrimonial property regime of marriage in community of property. Even on that date, his evidence is consistent that ‘I cannot explain to them (i.e. the parties) the marriage out of community of property because I do not have it; I just have the one in community of property, just that one.’

[9] I understand Pastor Elago’s evidence in this way. The proforma form that he had been given by the authorities to use dealt only and exclusively with marriage in community of property and that is what he talked to the parties about on the day of registration of the marriage, as aforesaid. This stands in sharp contrast to the plaintiff’s evidence that (1) on an earlier occasion when she and the defendant had gone to see Pastor Elago in order to inform him about their desire to marry to each other Pastor Elago explained to them the two matrimonial property regimes; that (2) Pastor Elago requested them to go away to consider their desire and return at some future date in order for the parties to inform him of their choice; and that (3) on a subsequent occasion, being the day of the registration of their marriage, Pastor Elago asked the parties if they had made their election; whereupon each one of them informed Pastor Elago that they were to marry in community of property. I have no doubt in my mind that, considering the totality of the evidence, the plaintiff and her other witnesses are either not telling the truth or they are mistaken as to what really transpired.

[10] The evidence which I accept as credible point reasonably and inexorably to the following. As I have found previously, on the date of registration of the marriage, Pastor Elago had already, before the parties arrived in his Church Office, completed Exh. B1; and more important, he had ex mero motu entered ‘Yes’ (i.e. ‘ja’) in para. 19 of Exh. B1 which reads: ‘In community of property (yes or no …’ In this regard, I do not find any credible evidence tending to establish that Pastor Elago got the ‘Yes’ answer from a ‘piece of paper’ which the parties had signed previously, if regard is had to the fact that Pastor Elago himself testified that the day of registration of the marriage was the first time he talked to the intending parties about marriage in community of property. And what is more, as I have found previously, Pastor Elago additionally wrote the names of the parties and their witnesses in his own handwriting in the places on Exh. B1 where, by law, the parties themselves and their witnesses should have affixed their respective signatures. This whole thing is a far cry from satisfying the legal requirements in terms of s. 17 (6) of the Proclamation that for such marriage to produce the legal consequences of marriage in community of property between the spouses, ‘the intending spouses’ must ‘at any time within one month previous to the celebration of such marriage (to) declare jointly before any magistrate or marriage officer … that it is their intention and desire that community of property and of profit and loss shall result from their marriage …’ (See Nakashololo v Nakashololo supra.)

[11] Accordingly, the totality of the evidence propel me to only one reasonable and inexorable conclusion, namely that the plaintiff and the defendant did not declare jointly before Pastor Elago that ‘it is their intention and desire that community of property and of profit and loss shall result from their marriage’ within the meaning of s. 17 (6) of the Proclamation. It is not enough in terms of the clear words of s. 17 (6) of the Proclamation that the parties ‘believed and agreed as between themselves that the consequences of their marriage will be one in community of property,’ as the plaintiff avers. That is not what s. 17 (6) of the Proclamation requires. (See Nakashololo v Nakashololo supra passim.) In my opinion, the intending spouses’ desire and agreement must, in order to satisfy the requirements of s. 17 (6) of the Proclamation, manifest themselves in a declaration jointly made before a marriage officer, as I have said previously. That is what s. 17 (6) says in clear and unambiguous terms. To hold otherwise is to do violence to the language of s. 17 (6) of the Proclamation.

[12] At the close of the plaintiff’s case, Ms. Angula applied for absolution from the instance. In Aluminium City CC v Scandia Kitchens & Joinery (Pty) Ltd 2007 (2) NR 494 at 496E-H, Silungwe AJ stated:

It is often said that, in order to escape absolution from the instance, a plaintiff has to make out a prima facie case in that it is on prima facie evidence – which is sometimes reckoned as evidence requiring an answer (Alli v De Lira 1973 (4) SA 635 (T) at 638B-F) – that a court could or might decide in favour of the plaintiff. However, the requisite standard is less stringent than that of a prima facie case requiring an answer. Prima facie evidence does not necessarily have to call for an answer, it is sufficient for such evidence to at least have the potential for a finding in favour of the plaintiff. In De Klerk v ABSA Bank Ltd and Others 2003 (4) SA 315 (SCA), the South African Supreme Court of Appeal expressed itself in these terms (per Schutz JA with Marais, Cameron, Cloete JJA and Shongwe AJA concurring (at 323B-D):

‘The correct approach to an absolution application is conveniently set out by Harms JA in Gordon Lloyd Page & Associates v Rivera and Another 2001 (1) SA 88 (SCA) at 92E-F:

“[2] The test for absolution to be applied by a trial court at the end of a plaintiff’s case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

“… [W]hen absolution from the instance is sought at the close of plaintiff’s case, the test to be applied is not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonably to such evidence, could or might (not should, nor ought to) find for the plaintiff. (Gascoyne v Paul and Hunter 1917 TPD 170 at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2) 1958 (4) SA 307 (T).)”

[13] In an earlier case of Bidoli v Ellistron t/a Ellistron Truck & Plant 2002 NR 451, this Court, per Levy AJ, had also relied on and applied the test laid down in Claude Neon Lights (SA) Ltd v Daniel supra. Furthermore, at 453E, Levy AJ stated –

The phrase ‘applying its mind reasonably’ requires the Court not to consider the evidence in vacuo but to consider the admissible evidence in relation to the pleadings and in relation to the requirements of the law applicable to the particular case. (My emphasis)

[14] From the reasoning and conclusions I have set out previously and having applied my mind reasonably to the evidence which I have accepted as credible in relation to the pleadings and in relation to the requirements of s. 17 (6) of the Proclamation, I hold that there is no evidence upon which a Court, applying its mind reasonably to such evidence, could or might find for the plaintiff.

[15] In the result, the application for absolution from the instance is therefore granted with costs.

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PARKER J

COUNSEL ON BEHALF OF THE APPLICANT/DEFENDANT:

Ms Angula

Instructed by: LorentzAngula Inc.

COUNSEL ON BEHALF OF THE RESPONDENT/PLAINTIFF:

Ms Kangueehi-Kanalelo

Shikongo Law Chambers

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