REPORTABLE

SUMMARY

CASE NO.: I 3263/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

JOHANNES SHITHIGONA v SELMA NDASILWOHENDA SHITHIGONA

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 –
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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.
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CASE NO.: I 3263/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

JOHANNES SHITHIGONA
Applicant/Defendant

and

SELMA NDASILWOHENDA SHITHIGONA

Respondent/Plaintiff

CORAM: PARKER J

Heard on: 2010 July 13 – 22

Delivered on: 2010 September 16
____________________________________________________________________________

JUDGMENT
____________________________________________________________________________

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
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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:

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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?

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[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

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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

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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
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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
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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
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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
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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.

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[15] In the result, the application for absolution from the instance is

therefore granted with costs.

____________________
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