CIVIL PROCEDURE – DIVORCE PROCEEDINGS – DIVISION OF JOINTLY OWNED PROPERTY – CHILD CUSTODY AND MAINTENANCE – PRACTICE DIRECTIVE 61. Johannes v Uutoni [2023] NAHCMD 222 (26 April 2023)

In this matrimonial matter, the plaintiff instituted divorce proceedings.  The plaintiff relies on the grounds that the defendant wrongfully, unlawfully, and constructively deserted the plaintiff by, among other things, committing emotional, psychological, and physical abuse toward the plaintiff.  The parties have been married to each other for some 11 years.  There is one minor child of the family.  The marriage was out of a community of property.

Order

1. 1. The bonds of marriage subsisting between the plaintiff and the defendant are dissolved, and a final order of divorce is hereby granted.
   2. Custody and control of the minor child of the family are awarded to the plaintiff, subject to the defendant’s reasonable access to the minor child.
   3. The defendant shall pay N$2 000 per month towards the maintenance of the minor child.
   4. The defendant shall forfeit any benefits deriving from the marriage out of community of property.
   5. The ownership of Erf No. 94 Tolla Street, Goreangab Dam, Windhoek, is hereby vested solely in the plaintiff.
   6. The defendant must, on or before 17 May 2023, take all steps necessary and required to transfer his share of the said Erf No. 94, Tolla Street, Goreangab Dam, Windhoek, to the plaintiff; and if the defendant fails or refuses to act as such, the Deputy Sheriff responsible for Windhoek is hereby authorized to take all steps necessary and required to effect the aforementioned transfer.
   7. The plaintiff is the sole owner of all property listed and identified in Annexure ‘HLJ8’ to the particulars of claim, a pounding machine, and 20 goats listed in paragraph 18 of the particulars of claim.
   8. That plaintiff be the sole owner of the two motor vehicles listed in paragraphs 18.1 and 18.2 of the particulars of claim.
   9. That the defendant be the sole owner of all the property listed and identified in paragraphs 15 and 16 of the particulars of claim.
   10. There is no order as to costs.

Reasons for order

Parker AJ:

‘[6]      On the evidence and for the purposes of the instant proceedings which are in the course of a divorce matter, I accept Ms. Nambinga’s submission that the final protection order disproves the defendant’s defence that he did not abuse the plaintiff.  Consequently, the defendant’s denial that he is not responsible for the breakdown of the marriage is roundly rejected as baseless.  Therefore, the defendant is the guilty party, as aforesaid.

[7]       Although the marriage is out of community of property, the parties jointly acquired the first immovable property. The plaintiff paid towards the acquisition of the property N$60 000, whilst the defendant paid N$50 000. There was some contestation about whether the plaintiff paid to the defendant N$49 000 in June 2020 as a ‘refund’ of the defendant’s deposit payment when he asked the plaintiff to return to him the amount of the deposit.  The evidence is not clear whether the amount paid was a refund of the deposit amount.  No evidence was adduced to explain why, if the defendant wanted a refund of the deposit, he had paid which was N$ 50 000, only N$49 000 was paid back to him.  The evidence is not satisfactory nor sufficient to prove that the plaintiff reimbursed the defendant for the deposit he had paid.  The probabilities are not in favour of the plaintiff’s version, and so it is rejected.

[8]       It is common cause between the parties that the plaintiff paid 90 percent of the settlement of the bond repayments, and the defendant 10 percent.  Furthermore, the plaintiff on her own effected renovations to the first immovable property in the amount of N$679 330.74.  As at October 2021, the mortgage bank’s statement indicated that the outstanding balance on the bond was N$671 927.57.

[10]     In the instant matter, I have mentioned previously that the defendant, the guilty party, has contributed only 10 percent towards the mortgage bond repayment and no contribution at all towards the renovation of the first immovable property.  That being the case, he receives 10 percent of the value of the joint estate.  The defendant is the guilty party cannot receive one-half of the value of the joint estate, as the defendant claims in reconvention.

[12] The parties agree as to who should be granted custody and control of the minor child.  The defendant has offered to pay maintenance in the amount of N$2 615 per month for the minor child.  Since his counterclaim for half of the value of the joint estate has been rejected, I think, it is fair and reasonable that he pays only N$2 000 per month for child maintenance.  In the nature of the proceedings, it is similarly fair and reasonable that no costs order is granted in favour of, or against, any party.