CIVIL PRACTICE – SUMMARY JUDGMENT   LAW OF PERSONS – MARRIAGE IN OR OUT OF COMMUNITY OF PROPERTY

CIVIL PRACTICE – SUMMARY JUDGMENT  

LAW OF PERSONS – MARRIAGE IN OR OUT OF COMMUNITY OF PROPERTY

Practice Directive 61 – Reasons for orders made

An application for summary judgment was made against the second defendant. The first defendant did not oppose the matter and default judgment was granted against him in terms of prayers 1 to 5 of the particulars of claim on 18 May 2022.

The Plaintiff’s case was that on 8 February 2017 first defendant entered into a written installment sale agreement in respect of a Toyota Hilux vehicle with the plaintiff. The first defendant breached the agreement by defaulting on payments. According to the plaintiff, the first and second defendants are married in community of property. Plaintiff annexed a Marital Status Declaration signed by the first defendant which states his marital status as ‘Married in Community’, and a ‘Marriage in Community of Property Spouse’s Consent”’ signed by the second defendant on 8 February 2017 in which she consents to first defendant entering into the agreement in respect of the Toyota vehicle. Plaintiff sought relief against both defendants by virtue of the marriage in community of property.

The second defendant gave notice of intention to defend the matter and also resisted the summary judgment application. In essence, her defence is that she is not married in community of property with the first defendant and that she erroneously consented to the agreement between the plaintiff and the first defendant. She further relied on the provisions of section 17(6) of the Native Administration Proclamation 15 of 1928 (the Proclamation), since the marriage took place in the north of Namibia and asserted that she and the first defendant made the declaration required to render their marriage in community of property on the day of their marriage, 24 August 2013. Her contention was that the one-month period referred to in section 17(6) of the Proclamation was not complied with.

COLEMAN J had to determine the core issue of whether the fact that they made the declaration to be married in community of property at the time of their marriage was solemnized, should be ignored in light of the provisions of section 17(6) of the Proclamation. It turns on the interpretation of the phrase ‘…at any time within one month previous to the celebration of such marriage…’

‘[9]         In my view the proper interpretation of ‘any time within one month previous to the marriage’ means that the declaration must be made no longer than a month before the marriage. According to Macmillan online dictionary, the use of ‘within a month’ connotes ‘inside the period of time’ of a month. Therefore, section 17(6) of the Proclamation contemplates that the declaration must be made within the month before the marriage. Consequently, in my view, it can be made on the same day as the marriage.

[10]        A number of cases I read in this context show that the couple is generally only informed of the choice between in or out of community of property at the time of marriage. To interpret the Proclamation that the declaration must be made at least a month before the marriage can potentially visit unintended choices on couples. Furthermore, there is no rhyme or reason why it should be done a month before the marriage, and if not the choice is invalid. In any event, this is an offensive stipulation which treats so-called ‘natives’ who get married in the north of Namibia differently from the rest. Therefore, it should be approached in a way that does not allow the erosion of choice of marital regime or as a tool to prejudice third parties.

[11]         In any event, the defendants unequivocally held themselves out to be married in community of property to the plaintiff. It was clearly not a bona fide mistake. The second defendant asserts under oath that they made the declaration to be married in community of property – albeit according to her, late – and they clearly held themselves out to be so married.

[12]         As far as the judgment against the second defendant is concerned, the plaintiff asks for specific relief against first defendant in prayer 2 of the particulars of claim. In my view granting an order against the second defendant for the same prayer would not in any way be onerous.

As a result, summary judgment was granted against the second defendant with costs.

Standard Bank Namibia Limited v Ntinda NAHCMD (8 June 2022)