REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: I 101/2013

In the matter between:

MARX MATHEUS PLAINTIFF

and

CREMENTINEA JOSEFA SANDRA MATHEUS (born TOZE) DEFENDANT

Neutral citation: Matheus v Matheus (I 101/2013) [2017] NAHCNLD 104 (30

October 2017).

Coram: CHEDA J

Heard: 08.05.2016 & 16.05.2016

Delivered: 30 October 2017

Flynote: A party who is not a Native in terms of the Native Administration

Proclamation Act, Act No. 15 of 1928, but, married on the northern part of the redline

such marriage is not out of community of property. A married woman who is not

employed is entitled to proprietary benefits upon dissolution of her marriage on the

basis of tangible and intangible contribution in the home.

Summary: Plaintiff a soldier and businessman married defendant, a housewife in

community of property marital regime. Plaintiff is a black Namibian who is classified

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as a Native in terms of the Native Administration and Proclamation Act, Act No. 15 of

1928. Defendant is an Angolan whose mother was black while her father was a

Portuguese (white). Defendant was not formally employed, but, used to assist in

plaintiff’s businesses.

Plaintiff sued defendant for divorce and sought to deny her any financial benefits on

the basis that their marriage was out of community of property although the marriage

certificate points to the contrary. He further argued that defendant was black and is

therefore governed by the said Act. He also argued that defendant did not contribute

anything to the marriage. It was held that the marriage was in community of

property, defendant was not black, but, coloured and is therefore not governed by

the said Act. Held, further, that defendant had contributed to the marriage of both

the home and businesses and was therefore entitled to a half share in the marriage.

ORDER

1. The marriage was In Community of Property.

2. The marriage is dissolved.

3. The parties’ joint estate is to be divided equally between the parties. In the

event the parties do not agree on what constitutes the joint estate, then and in

that event, a liquidator shall be appointed and specifically directed, in the

determination of the assets to include the assets that may have been

concealed or dissipated by any of the parties without the permission of the

other party.

4. The parties should be afforded a period of four (4) weeks from the date this

order is made to agree on the liquidator to be appointed, failing which the

President of the Law Society of Namibia is hereby authorised and directed to

appoint a suitably qualified liquidator in consultation with the respective legal

practitioners of the parties. The liquidator, upon appointment shall have the

following powers:

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4.1. To liquidate the property belonging to the joint estate of the parties by

public auction or private treaty, and to distribute the proceeds of the joint

estate between the plaintiff and the defendant.

4.2. To take immediate control of, manage and investigate the assets of the

parties which form part of the joint estate of the parties.

4.3. The liquidator’s authority shall be exercised subject to the supervision of

the High Court of Namibia.

4.4. To receive all such monies paid into the joint estate by any person

entitled to do so and shall in particular ensure that the parties comply

with any order made by the court in respect of debasement of accounts,

proof of vouchers, and adjustment of assets in favour of any party so

ordered.

4.5. To take custody of cash, cash investments, stocks, shares and other

securities held by the plaintiff and the defendant, and of other property or

effects belonging to or held by or on instruction of either plaintiff or

defendant.

4.6. To conduct any investigation with the view to locating the assets, cash,

shares, investments belonging to the defendant and the plaintiff or their

business, including such assets held by way of securities, in cash or

liquid form and for purpose of the said investigation, the liquidator:

4.6.1. May obtain the issue by the Registrar of this court of any

subpoena in order to obtain access to and possession of relevant

documents including records of banking accounts from any

person if the liquidator has reason to believe such documents

may contain information relating to the investigation.

4.6.2. To incur such reasonable expenses and costs as may be

necessary or expedient for the liquidation and distribution of the

joint estate of the parties, and to pay same from the proceeds of

the assets held, administered or under the control of the

liquidator.

4.6.3. To engage such assistance of a legal, accounting, administrative,

or other professional or technical nature as they may reasonably

deem necessary for the performance of the liquidator’s duty in

terms of this order and to defray any reasonable costs.

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4.6.4. To pay expenses thus incurred from the assets or proceeds of the

joint estate of the parties.

4.6.5. To open and operate any new banking accounts for the purpose

of the liquidation and distribution of the joint estate.

4.6.6. To apply on notice to the Registrar, should it be necessary, for an

extension of his/her powers and for instructions from the court in

regard to any matter arising out of or in connection with the

control, management and liquidation and distribution of the joint

estate of the parties.

4.6.7. To sign all necessary documents to effect the transfer of any

property, assets, securities and shares if required into the

name(s) of the parties.

4.6.8. To take all necessary steps and sign all other necessary

documents required in general for the liquidation in the distribution

of the joint estate of the parties.

4.6.9. To retain a liquidator’s fee of 3.5% of the value of the assets upon

the liquidation.

4.6.10. To pay all creditors, if necessary.

4.6.11. To distribute the remainder of the funds in equal shares between

the parties, or as directed by an order of the high court of

Namibia.

4.6.12. To deliver a copy of the final liquidation and distribution account

to this Honourable Court.

JUDGMENT

CHEDA J:

[1] This is an action for divorce and other ancillary relief. Plaintiff issued out

summons out of this court for divorce and other ancillary relief against defendant on

06 May 2013. Plaintiff is employed by the Ministry of Defence and resides in the

Military Base at Oshikango, while defendant is unemployed and lives in Ondangwa.

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[2] Plaintiff claimed the following relief in his summons:

a) Divorce

b) Custody of all the four children

c) Offered to pay the children’s educational and medical needs.

d) That he retains the immovable properties being Erf 96, Oshikango, Helao

Nafidi Town.

[3] Plaintiff was represented by Mr Nyambe while defendant was represented by

Ms Angula. However, while the matter was awaiting judgment, Mr Nyambe filed a

Notice of Withdrawal on the 04th September 2017, but, Mr Greyling has now filed a

Notice of representation.

[4] It is plaintiff’s averment that the parties’ marriage was contracted on the 03

October 1997 at Oshakati and the said marriage is out of community of property in

terms of s 17(6) of the Native Administration and Proclamation Act, Act 15 of 1928

[herein referred to as “the Act”]. Three children were born out of this union.

[5] Plaintiff listed the grounds for divorce being that defendant acted in a manner

which is indicative of a settled intention of terminating the marital relationship in that:

‘ a) she constantly elicits unnecessary quarrels;

b) she does not communicate meaningfully with the plaintiff;

c) she moved out of the common home in January/February 2012, and has

refused to move back;

d) she has indicated to the plaintiff that she is no longer interested in continuing

the marital relationship between the parties;

e) she denies plaintiff his conjugal rights;

f) both parties have lost love and affection for one another.’

[6] In addition, thereto, he claims custody of all the children. Plaintiff gave

evidence. His testimony is that he is a soldier by profession and holds the rank of

staff sergeant. He is in receipt of N$11 551-76 per month gross and N$5584-35 net.

[7] The parties were married to each other on the 03 October 1997 out of

community of property by virtue of the Act. Four children were born out of this union.

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He also stated that he has three other children from other relationships whom he

financially maintains.

[8] Defendant resides with the children in an Army-issued house against a

monthly rental of N$872-00. He has other numerous expenses which are off-set by

a separate income which he derives from ten rented rooms from which he receives

between N$250 to N$350 per night at Oshikango. He went further and stated that

he makes approximately N$500-00 per month due to lack of customers. This figure

does not make sense to me, though.

[9] In addition, he rents out a Warehouse for which he was paid N$160 000-00

between 2014 and 2015. It was further his evidence that defendant is self employed

as a Grocery Vendor. He also stated that the marriage officer did not inform them of

the different types of marriages they could contract. They also did not, as a couple

discuss this subject.

[10] It was further his averment that he owns a Warehouse at Oshikango which he

demarcated into small commercial units from which he receives rentals. The said

property according to him was purchased by proceeds from his photographic

business, which business he was into prior to him joining the Armed Forces.

[11] He told the court that he single-handedly developed the business to what it is

today. He emphatically denied that defendant had an input in the development of

this business. It is for that reason that he is of the view that she is not entitled to it

either fully or partly.

[12] Plaintiff went and stated that even if defendant was not formally employed,

she at times assisted by supervising the cooks in his Restaurant business.

[13] He further stated that she was born of an Angolan mother and a Portuguese

father. He also stated that he is aware that marriage on the northern side of the

redline is out of community of property.

[14] Defendant gave evidence to the effect that indeed they were married as per

the marriage certificate produced in court. She is not a Namibian, but, an Angolan

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and that at the time of the solemnization of their marriage, the marriage officer did

not ask them which marital regime they wanted. She also stated that defendant did

not explain to her the different types of marriages that existed in Namibia. She

therefore did not know the different types that existed in Namibia.

[15] It was her further evidence that;

a) she was under the impression that the marriage was in community of

property as they had made a decision to build together;

b) she was involved in the business as she had access to the account which

was under plaintiff’s name;

c) she was not paid for her work at the business as she was not an

employee;

d) she handled payments;

e) she handled customers who spoke Portuguese as the business is situated

in Oshikango (Namibia/Angola border);

f) she was given an Automated Teller Machine (ATM) card to use at leisure.

[16] That was her evidence-in-chief. As this was a trial, the court needs to

examine the evidence laid before it in for it to make a proper determination.

[17] It was plaintiff’s evidence that the marital regime was not explained to them by

the marriage officer, in particular the difference between marriage in community of

property and out of community of property. In the same vein he stated that he is not

certain, he may have explained, but, he does not recall. Further, in his evidence he

stated that he only became aware that his marriage was in community of property,

well after the marriage had been solemnized and registered and that he did not know

the law then.

[18] Again in the same vein he stated that he had always been aware that

marriages on the northern side of the redline were out of community of property.

This, in my view is a serious and material contradiction which goes to the root of his

evidence. This contradiction, no doubt casts a dark shadow on his credibility.

[19] Further to that, he stated that defendant was not part to the building up and

running of his business hence she is not entitled to any share whatsoever. However,

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he acknowledged that she was assisting at the Restaurant and had unlimited access

to his bank account. Surely this behaviour runs contrary to conduct of a person who

had excluded defendant from his business. This again is a contradiction in his

evidence.

[20] On the other hand, defendant gave, her evidence consistently and logically.

She clearly stated that she is not a black Namibian, but, an Angolan whose mother

was black and her father although she had never seen him, she was told that he was

white and a Portuguese nationality.

[21] The court had an opportunity of observing the parties as they appeared in

court and the court took judicial notice that defendant is neither a white nor black

person. She is coloured by virtue of her being born of a white father and a black

mother. The court’s observation passes the test of notoriety. Defendant clearly

stated that she did not hear the marriage officer asking them whether they wanted to

marry in or out of community of property. Despite all the confusion the parties

conducted their marital affairs as if they were married In Community of Property.

[22] First and foremost it is paramount to examine the racial composition of the

parties as their marriage is no doubt regulated by the Native Proclamation Act 15 of

1928, section 17 (6) [herein referred to as “the Act”] which reads thus:

‘ (6) 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, native commissioner or marriage officer (who is hereby

authorised 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.’ (My emphasis)

[23] In my mind two factors should determine the marital status and consequences

of this marriage that is whether their races are covered by the Act.

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[24] The issue is whether the parties are natives as defined in the Act. Under

chapter VI, section 25 of the Act defines “Native” as follows:

‘ 25 in this Proclamation and any notice, rule a regulation made thereunder, unless

inconsistent with the context “native” shall include any person who is a member of

any aboriginal race or tribe of Africa: Provided that any person residing in an area

defined under paragraph (c) of section one of this Proclamation or set aside as a

native reserve under section sixteen of the Native Administration Proclamation 1922

(Proclamation No. 11 of 1922) (1), or in any native location, under the same

conditions as a Native shall be regarded as a Native for the purposes of this

Proclamation.’ (my emphasis)

[25] Counsel for defendant, Ms Angula referred the court to the expanded

definition and common understanding of the word native and referred me to the Glen

Grey Act 1894. This was an Act passed by the Cape Town Parliament following its

tabling by Cecil John Rhodes which was commonly known as the “Bill for Africa”. Its

main aim was to control native economic and education options.

[26] Cecil John Rhodes is well known to have been the architect of apartheid and

had made it a point that the word “native” referred to a black race in a proper sense

hence the further definition of natives in the Liquor Law Amendment Act 28 of 1898

which further defined natives as “any Kaffir, (sic) Fingo, Basuto, Damara, Hottentot,

Bushmen or Koranna.” All these are black people.

[27] As to who a Native is in terms of the Act, it is clear that plaintiff surely is as he

is black. With regards to the defendant, it has been submitted that she is a person of

colour, commonly referred to as coloured and therefore cannot be legally referred to

as a Native as envisaged by the Act. The intention of the Apartheid Legislature was

to clearly discriminate races as is defined in the official Gazette of South West Africa

of Monday, 16th July 1928 wherein Native and the Act as:

‘ Native” shall include any person who is a member of any aboriginal race or tribe of

Africa: provided that any person residing in any area defined under paragraph (c) of

section one of this Proclamation or set aside as a native reserve under section

sixteen of the Native Administration Proclamation 1922 (Proclamation No. 11 of

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1922), or in any native location, under the same conditions as a Native shall be

regarded as a Native for the purposes of this Proclamation.’ (My emphasis)

[28] It is defendant’s argument that their marriage was out of community of

property as they were married outside the red line. The fact that the parties married

outside the red line admits of no doubt. In my view, the fact that Defendant is not a

Native /Black it means that her marriage to Plaintiff cannot be classified and

regarded as being that of Natives (Blacks) as envisaged by the act which seeks to

preclude Natives/ Blacks contracting marriages under common law. For the

avoidance of doubt her marriage is a civil marriage.

[29] The other dimension of this union which cannot be ignored is the conduct of

the parties. It is common cause that plaintiff was formally employed all the time

while defendant was not. She, however, carried out the following activities amongst

others in their home:

a) she used to supervise the operations of the Restaurant;

b) helped with translation for Portuguese clients;

c) helped in the photo studio;

d) helped in their bed and breakfast business; and

e) carried out all the expected domestic chores expected from a married woman.

[30] In addition, thereto, plaintiff had given her the ATM card which she used for

her personal purchases and for purchasing household goods and effects, this was in

addition to her vending job. Despite all her involvement, he still regarded her as

having not contributed to his businesses. Plaintiff further stated that they operated a

joint account although it was under his name. In my view this marriage was in

community of property and the consequences of such marriage, naturally follow as

per the law. Such consequences entitle defendant to equally benefit in the estate

despite plaintiff’s vigorous argument to the contrary.

[31] I would like to go further and state that the fact that the woman is not

employed does not mean that she did not contribute to the family’s estate. Her

contributions should not be confined to commercial enterprises only. In my opinion,

it is high time the courts recognised both tangible and intangible contributions of

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women in their homes even if such contributions may not be adequately quantified.

The fact that a woman carries out household chores while the man is at work cannot

in the interest of justice and equity be ignored.

[32] After all the fact that the man is married universally bestows some honour on

him which status enhances his good stead in society and in the community.

Therefore, it cannot be proper for men to regard women as useful and important only

when it suits them, but, to discard them when it is convenient for them to do so. In

my view the nation’s clamour for fair and just treatment should be embraced by our

courts who should ensure that justice prevails on the down trodden in the men’s

world.

[33] A woman’s position at home should be recognised and rewarded as she

would have silently and unwittingly contributed to the up-keep of the home. The

common English adage that “behind every successful man, there is a woman”

should not be a sounding gong bereft of meaning. It is for that reason that I find that

defendant’s contribution in this marriage for all intents and purposes was in

community of property. This, is in addition to the position that defendant being a

coloured was not capable of entering into a customary law marriage whose legal

consequence is out of community of property.

[34] Plaintiff should have known that by allowing defendant to assist and run the

businesses with him was nothing less than a tacit admission that she was part of the

business and therefore the marriage was in community of property.

[35] In light of the above I find that the parties were married in community of

property and conducted themselves as if their marriage was in community of

property and should be treated as such.

[36] For the above reasons the following is the order of court:

1. The marriage was In Community of Property.

2. The marriage is dissolved.

3. The parties’ joint estate is to be divided equally between the parties. In the

event the parties do not agree on what constitutes the joint estate, then and in

12

that event, a liquidator shall be appointed and specifically directed, in the

determination of the assets to include the assets that may have been

concealed or dissipated by any of the parties without the permission of the

other party.

4. The parties should be afforded a period of four (4) weeks from the date this

order is made to agree on the liquidator to be appointed, failing which the

President of the Law Society of Namibia is hereby authorised and directed to

appoint a suitably qualified liquidator in consultation with the respective legal

practitioners of the parties. The liquidator, upon appointment shall have the

following powers:

4.1. To liquidate the property belonging to the joint estate of the parties by

public auction or private treaty, and to distribute the proceeds of the joint

estate between the plaintiff and the defendant.

4.2. To take immediate control of, manage and investigate the assets of the

parties which form part of the joint estate of the parties.

4.3. The liquidator’s authority shall be exercised subject to the supervision of

the High Court of Namibia.

4.4. To receive all such monies paid into the joint estate by any person

entitled to do so and shall in particular ensure that the parties comply

with any order made by the court in respect of debasement of accounts,

proof of vouchers, and adjustment of assets in favour of any party so

ordered.

4.5. To take custody of cash, cash investments, stocks, shares and other

securities held by the plaintiff and the defendant, and of other property or

effects belonging to or held by or on instruction of either plaintiff or

defendant.

4.6. To conduct any investigation with the view to locating the assets, cash,

shares, investments belonging to the defendant and the plaintiff or their

business, including such assets held by way of securities, in cash or

liquid form and for purpose of the said investigation, the liquidator:

4.6.1. May obtain the issue by the Registrar of this court of any

subpoena in order to obtain access to and possession of relevant

documents including records of banking accounts from any

13

person if the liquidator has reason to believe such documents

may contain information relating to the investigation.

4.6.2. To incur such reasonable expenses and costs as may be

necessary or expedient for the liquidation and distribution of the

joint estate of the parties, and to pay same from the proceeds of

the assets held, administered or under the control of the

liquidator.

4.6.3. To engage such assistance of a legal, accounting, administrative,

or other professional or technical nature as they may reasonably

deem necessary for the performance of the liquidator’s duty in

terms of this order and to defray any reasonable costs.

4.6.4. To pay expenses thus incurred from the assets or proceeds of the

joint estate of the parties.

4.6.5. To open and operate any new banking accounts for the purpose

of the liquidation and distribution of the joint estate.

4.6.6. To apply on notice to the Registrar, should it be necessary, for an

extension of his/her powers and for instructions from the court in

regard to any matter arising out of or in connection with the

control, management and liquidation and distribution of the joint

estate of the parties.

4.6.7. To sign all necessary documents to effect the transfer of any

property, assets, securities and shares if required into the

name(s) of the parties.

4.6.8. To take all necessary steps and sign all other necessary

documents required in general for the liquidation in the distribution

of the joint estate of the parties.

4.6.9. To retain a liquidator’s fee of 3.5% of the value of the assets upon

the liquidation.

4.6.10. To pay all creditors, if necessary.

4.6.11. To distribute the remainder of the funds in equal shares between

the parties, or as directed by an order of the high court of

Namibia.

4.6.12. To deliver a copy of the final liquidation and distribution account

to this Honourable Court.

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------------------------------- M Cheda

Judge

APPEARANCES

PLAINTIFF: Mr Nyambe

Of Shikongo Law Chambers, Ongwediva

DEFENDANT: Ms. Angula

Of AngulaCo., Ongwediva