ralph alexander hofelein v neeta sharma.pdf - Superior Courts of ...

5legally, or whether had sole control of the joint account in Germany and infact transferred more money to himself);l) There were apparently two previous applications. In 2008 a Rule 43 wasinstituted by the Respondent, which was apparently settled out of court.This application is largely irrelevant to these proceedings. In a furtherapplication, instituted by the Respondent, she applied to be allowed to takethe child with her to India. Voluminous affidavits were filed in thatapplication, but apparently it eventually did not proceed and is also mainlyirrelevant to this application. The Applicant also obtained a court order inrespect of access to Natasya, as well as a protection order.m) Since the aforementioned Rule 43 application, which was originally opposedby the Applicant, but had apparently been settled out of court, the minorchild remained in the custody of the Respondent. The effect of thatsettlement was apparently that interim custody and control of the Natasyawas given to the Respondent; andn) The Applicant brought this application on what he termed as “changedcircumstances”, which had subsequently occurred, based on a report of MsKubirske. (The circumstances and contents of that report are in dispute).

6The law applicable to Rule 43 applications[5] Section 4(1) of the Matrimonial Affairs Ordinance, No. 25 of 1955 is theequivalent of Section 5 of the South African Matrimonial Affairs Act No, 37 of 1953,which provides that the Court may on application of either parent of a minor indivorce proceedings, were such divorce is granted, award the custody of the minorto a parent. Such an order may also be made in respect of an adopted child.(Section 74(2) of the Children’s Act, No. 33 of 1960 1) . Where emphasis was placedin the past on innocence or guilt, because the guilty spouse was deemed to haveforfeited his/her rights to the child, although in the discretion of the judge,progressive systems in South Africa and Namibia moved away from the old systemof penalising the guilty spouse towards a recognition of predominance of theinterest of the child 2) ._____________________________1) Hahlo – the South African law of Husband and Wife, third edition, p 451. (Although there are latereditions of Hahlo, this edition refers to the marriage regime that is still applicable to Namibia).2) Hahlo, supra, at 453: Fletcher v Fletcher 1948(1) SA 130(A)

7[6] Section 18(7) of the High Court Act of Namibia 3) expressly provides that noappeal lies against the decision of the Court in respect of pendente liteapplications.[7] Where a contribution for costs is requested, courts have in the past held thatno order will be made for contribution if the spouse is able to pay the costs out ofhis/her own income 4) . It is also a requirement that the applicant must show thathe or she has reasonable prospects of success in the main action. That requirementmeans that the Applicant has to prove that he or she has a prima facie case 5) .[8] Maintenance pendente lite for a spouse is based on the same principles as acontribution for costs pendente lite. An applicant must show that he or she has areasonable chance of success and that he/he is entitled to maintenance 6) . Thesame situation applies where the wife has means and the husband not.__________________________3) High Court Act, No. 16 of 1990.4) Hahlo, supra, page 506.5) Muhlmann v Muhlmann 1984(1) SA 413(W) at 417E): Du Plooy v Du Plooy 1953(3) SA 848(TPD)at 852B and Hamman v Hamman 1949(1) SA 1191(W) at 1193.6) (Hahlo, supra, page 511 to 512; Reid v Reid 1951(1) SA 765(E) at 769H to 770F; Madden vMadden 1962(4) SA 654(T); Roux v Roux 1956(4) 645(SR): and Hamman v Hamman, supra, at1191.

8[9] No fixed principle had been established in respect of pendente lite custody ofa minor child. Custody should remain with the parent in whose custody the childwas but, if possible, changes of custody should be avoided 7) .[10] It has been recognised in numerous cases that the Rule 43 procedurecontemplates a speedy and fair decision on the application. Only two sets ofaffidavits are permitted. It is in the discretion of the judge to hear evidence if it isdifficult to decide on the affidavits alone. The process is intended to provide interimand temporary relief and cannot be determined with the same degree of precisionand closer exactitude which is afforded by detailed evidence 8) .[11] In the Rule 43 application an applicant has to put facts before the Courtthat, if proved, will ensure success in the main action 9) . The rule does not prohibitannexures as long as it constitutes admissible evidence. 10)__________________________________7) Hahlo, supra, page 513; Madden v Madden, supra, at 658B; Viljoen v Viljoen 1964(1) SA198(T), Bashford v Bashford 1957(1) SA 21(N); and Eksteen v Eksteen 1969(1) SA 23(O). In theBashfourd case the learned Judge said that a child of tender age should normally be with themother.8) (Taute v Taute 1974(2) SA 675(E) at 676B; Herbstein and Van Winsen – The Civil Practice ofthe Supreme Court of South Africa, fourth edition, Chapter 47, pages 1115 and 1117; NathanBarnett and Brink – Uniform Rules of Court – third edition, page 270; Eksteen v Eksteen,supra, at 25B-C); Zaphiriou v Zaphiriou 1967(1) SA 342(W) at 345G; and Mather v Mather1970(4) SA 582(E) at 585 A-B).9) Du Plooy v Du Plooy, supra, at 852D.10) (Nathan Barnett and Brink, supra, at 270; Williams v Williams 1971(2) SA 620(O); Maree vMaree 1972(1) SA 261(O); and Gerber v Gerber 1979(1) SA 352(C).

9No replying affidavit is allowed 11) . Each case depends on its own facts 12) . This typeof application cannot be determined so precisely as one where evidence ispresented 13 . Because there are only two affidavits the Court has to draw inferencesand look at the probabilities as they emerge from the papers. Of course a finding ofthe Court in respect of a Rule 43 application is not binding on the trial court in themain action 14) . In order to evaluate the probabilities and to make a properassessment annexures to prove averments may be important. In the case of Taute vTaute, supra, a balance sheet and tax assessments have been provided to prove theincome of the Applicant 15) . Sufficient details must be given to enable the Court todeal with the matter 16) . In respect of further evidence a party must apply for leaveto provide such evidence 17) . Although the affidavits in a Rule 43 application shouldbe similar to pleadings, it cannot be similar in all respects. In certain instanceswhere a Respondent needs to prove the truth of his/her version, he or she mayneed to annex certain documents, which would normally in the main case behanded in as exhibits. In such circumstances exhibits may be annexed to thepapers 18) ._____________________11) Mather v Mather, supr, at 585B.12) Taute v Taute, supra, at 678H).13) Taute v Taute, supra, at 676B: Levin v Levin 1962(3) SA 330(W) at 331D; Herbstein and VanWinsen, supra, at 1118.14) Taute v Taute, supra, at 676C-D.15) Taute v Taute, supra, at 677A-B; Harms-Civil Procedure in the Supreme Court at 463.16) Nathan Barnett and Brink, supra, at 272.17) Nathan Barnett and Brink, supra, at 272 (Subrule(5); and Vester v Vester 1975(3) SA 493(W).18) Gerber v Gerber 1979(1) SA 352 (C) at 353E-F;

10[12] It has been held to be against public policy that a party should be entitled to claimmaintenance pendente lite from the other where that party flagrantly and deliberately liveswith another as man and wife 19) .[13] Rule 43(6) provides that the court may on the same procedure vary its decision inthe event of a material change in the circumstances of either parent or the minor or if thecontribution towards costs is inadequate.[14] Rule 46(7) prescribes the fees that may be allowed for this type of application. Feeshigher than those prescribed will not be allowed, unless the court, in exceptionalcircumstances, directs that a fee higher as the prescribed maximum may be charged 20) .This application for interim relief.[15] As indicated earlier herein, the Applicant’s application for relief pendente lite isbrought in respect of interim custody of Natasya, interim maintenance for himself and acontribution towards his legal costs. Significantly, whilst claiming interim custody of theminor Natasya, the Applicant does not claim interim maintenance for her. I shall hereinafterdeal with his claims pendente lite in the following order:The issue of contribution towards costs will be dealt with first; thereafter the interimmaintenance claimed by the Applicant for himself; and finally, the interim custody ofNatasya.________________________________19) Carstens v Carstens 1985(2) SA 351(E) at 353F; Herbstein and Van Winsen, supra, at 111 8-9.20) Herbstein and Van Winsen, supra, at 1121.

11Contribution towards costs[16] The Applicant’s claim for a contribution towards costs is based thereon thatthe Respondent is employed in Namibia and receives a salary of N$55 000 monthly,as well as “Ausland allowance” of Euro 2 000 per month, while the Applicant wasnot entitled to work in Namibia and stayed at home until the adoption of Natasya,where after he became her primary caretaker and caregiver. Before moving toNamibia and whilst living in Germany, the parties had a joint bank account fromwhich the Applicant admits he withdrew on occasion Euro 47 000. In his foundingaffidavit he alleged that his contribution towards the marriage was to look after thefamily, whilst the Respondent’s contribution was of a financial nature. TheApplicant claims an amount of N$60 000 as a contribution towards his costs inrespect of the divorce action, which will be heard in November 2010 and allegesthat he has to date expended approximately N$120 000 in respect of his defence. Inthis regard he refers to the costs of the experts referred to earlier herein, whichalready amounts to N$30 000 and will be in excess of N$100 000 in order for himto conduct his case properly.[17] In response the Respondent denies that the Applicant was the primarycaretaker and caregiver of the child, because they had a full time nanny to lookafter her, that he in fact obtained working visas and indeed was gainfully employed.In her replying affidavit she refers to what the Applicant had said in his own wordsunder oath in reply to a previous application. The Respondent referred to what theApplicant said in paragraph 7 at page 2 of his affidavit 27 August 2008, where hestated under oath:“I deny being unemployed, I am currently working for One Africa Television on workvisa basis as a consultant and earn N$15 000.00 per month for 20 hours per week.”In paragraph 11 of that affidavit he further stated:

12“Since 2001 I earned approximately €143, 900 (approximately N$1,800 000) whichamounts to an average annual earning of approximately N$258 000.00.”She alleges that the Applicant has already taken over N$2 million from the jointaccount and has access to withdraw even more money. According to her, not onlyhas he signing powers, but he is in a position to withdraw money from the jointaccount in Germany.[18] On the Respondent’s version, the Applicant has access to the joint accountin Germany and according to her has already withdrawn money from it in excess ofN$2 million. The Applicant admits that he did withdraw an amount of Euro 47000.00 from that account. To be able to do that, he must have access to it and on abalance of probabilities I accept that he did according to the Respondent’s version.What is more significant, is that the Applicant, being well qualified, does not seemto have any problems in obtaining work and in his own words does work for OneAfrica Television where he earns N$15 000.00 per month and that he has alreadyearned and amount of N$1, 800 000. From this the Applicant appears to be able tofinance his defence in the main trial.[19] In the circumstances I am not prepared to make an order in respect of anycontribution of costs in favour of the Applicant.Maintenance for the Applicant pendente lite[20] In respect of the Applicant’s claim for interim maintenance for himself herefers to his position in Namibia where the Respondent was a principal breadwinner and he had to maintain the common household and later had to look afterthe minor child that they have adopted. In his founding affidavit he states that heearns approximately N$15 000.00 per month, but his monthly expenses are N$28

13100.00. He refers to the foreign allowance of Euro 2 000 that is paid to theRespondent, tax free, and he alleges that she earns that allowance because she ismarried to him a foreigner and accompanying spouse, who is prohibited to obtain awork permit and to work in Namibia.[21] In her replying affidavit the Respondent questions his expenditure which shealleges is not proved by any documentation, such as invoices. She submits thatthese expenses are exorbitant and as an example refers to an amount of N$2 000that he claims to expend for annual travel to Germany. She also refers to theaccess of the Applicant to their joint bank account in Germany from which he hadallegedly already withdrawn an amount in excess of N$2 million. In respect of the“Ausland allowance” she denies his allegation that she receives that amountbecause of their marriage and the fact that he cannot work in Namibia. Sheannexed to her affidavit a letter written by a certain Mr Usinger of the companythat she works for in which the former certified that this allowance is in fact paid toher solely to cover rental expenses and other expenses incurred by her overseasstay during her absence from her home country. In that letter Mr Usinger clearlystates that the overseas allowance is paid irrespective of the fact whether she ismarried or not and that their state of marriage does not influence that allowance atall.[22] It is incomprehensible that a person who earns as much money as theApplicant indicated under oath, as I have earlier referred to, as well as having anincome of approximately N$15 000.00 per month, would need maintenance forhimself pendente lite. In respect of his claim that the “Ausland allowance” is paidbecause of the marital relationship between him and the Respondent, the letter ofthe Respondent’s employer, as well as her own allegation in her replying affidavit,

14shows the opposite. On a balance of probabilities I am not persuaded that theApplicant’s allegations in this regard are correct.[23] On the evidence contained in the affidavits, I am not prepared to make anyorder in respect of pendente lite maintenance for the Applicant.Pendente lite custody of the minor child[24] The largest part of the submissions advanced in respect of this applicationrelated to the Applicant’s claim for pendente lite custody of the minor child,Natasya. The affidavits were also mainly concerned with this issue. In the light ofmy decision in this regard, it is not necessary to refer in much detail to thevoluminous allegations in the affidavits and annexures regarding this claim.[25] In his founding affidavit the Applicant based his claim for penente litecustody of the minor on what he called “changed circumstances”. In this regard herefers to an evaluation report regarding the custody of Natasya by Waldi-BeateKubirske. According to that report the recommendation was that the Applicant beawarded custody and control of the minor child. The Applicant further alleges thatthe Respondent is too busy pursuing her career to properly to look after the minorchild. He further alleges that she is mentally unfit to care for the minor child andthat he, on the other hand, has more time to do so and is also mentally more stablethan the Respondent. According to him the Respondent on numerous occasionsrefused to subject herself to further psychological evaluations. He also consideredthe last report by Ms Kuberski as more comprehensive and objective than theprevious reports by Hearne and Horn, which he submitted was outdated due to thechanged circumstances. In respect of his allegation that the Respondent is

15unstable and unfit to raise the child, he refers to a protection order that heobtained on or about 17 July 2009.[26] The Respondent denies all these allegations and pointed out that the socalled“fresh” evaluation report by Ms Kubirski that the Applicant now relies on,was already obtained at the end of last year for the purpose of an applicationbrought by her to take the child to India. She also refers to that report as onesided,because it contains several serious allegations against her and her ability toraise a child which is clearly based on information that was only obtained from theApplicant. Because that report was not confirmed by affidavit, she considers thatreport as inadmissible hearsay. She informs the court about the bad relationshipthat exists between her and the Ms Kubirski and the cause thereof. She furtherrefers to an earlier report that Kuberski compiled during the adoption process inwhich both parents were portrayed as knights in shinning armour. According toher this is a clear indication of the attitude of Kubirski against her since they had afall out. She categorically denies that the Applicant’s allegations that he was thecaregiver and primary caretaker of Natasya are true. According to her they had afull time nanny who looked after the Natasya and that the Applicant did nothingmore than to stay idle at home. She also refers to the situation when the Applicantleft the house and the reason why she was forced to change the locks of the house.She strenuously denies the Applicant’s allegation that he is destitute and refers theCourt to the income that the Applicant had received according to his ownallegations under oath.[27] In this Court the Applicant obviously changed horses in mid-streamregarding the basis on which he now claims interim custody of the minor child. If Iunderstand it correctly, the Applicants submissions now are the following:

16In the reports annexed to his founding affidavit, the different expertsrecommended that the parties themselves need to be evaluated;He did so and was, according to him evaluated by Dr Sieberhagen and MrAllandale, while the Respondent did not do anything in that regard. Both DrSieberhagen and Mr Allandale regarded him as a fit parent who is able tolook after the minor child.Consequently, by undergoing these evaluations while the Respondent didnot do so, it would be in best interest of the minor child that the interimcustody be awarded to him as the better parent.[28] Ms Schimming-Chase, who represented the Respondent in this Court,pointed out that the basis upon which the Applicant now claims interim custodyconstitutes a different approach, namely one based on the so-called “changedcircumstances” alleged in his founding affidavit. Rule 43(6) provides for a variationof a Court order if the circumstances should change in respect of a pendente liteclaim. There was no previous order by the Court that can be varied and theApplicant’s basis for his claim for interim custody is not in reliance of that subrule.However, it may perhaps be relevant if there is a change in the circumstancespending a final determination in the trial regarding the custody of a minor child, ifit is for instance clear that the situation wherein the child lives become dangerousor unsuitable for him or her. In such a situation the Court, as upper guardian ofminor children shall of course intervene. In this matter the Applicant based hisreliance for “changed circumstances” on the report of Kuberski. However, thatreport was obtained quite some time ago and is definitely not a fresh report, as healleges, that would indicate that the Court should interfere. Furthermore, thatreport is clearly one in which Kuberski only consulted one parent, namely theApplicant. Her allegations in respect of the Respondent could only have been

17obtained from the Applicant. At this stage I do not want to comment on the validityand correctness of those statements by Kuberski in her report. The purpose forwhich the report was obtained is not for an application for interim custody in termsof rule 43.[29] The Applicant did not mention the situation in which he presently lives withanother woman, but the Respondent is clearly not satisfied with that situation andspecifically mentioned that the Applicant lives in adultery with his girlfriend,Margret Carlo. This is certainly a circumstance that the Court has to considerwhen determining what is in the best interest of the child. As indicated before,courts have in the past considered such a situation as being against public policythat one party should claim maintenance pendente lite from the other while thatparty flagrantly and deliberately lives with another as man and wife. This is anissue that may become relevant during the trial of the main case. At this stage it isa consideration for the Court whether it would be in the best interest of Natasya tobe removed from the custody of the Respondent to live with the Applicant in ahouse which he shares with another woman without the aid of more evidence inthis regard.[30] A factor of paramount importance to this Court is a fact that the divorcecase in which the issue of custody and control of the minor child, Natasya, finallyhas to be determined, has been set down to be heard in November this year. Thatcourt will eminently be in a better position than this Court to make such adetermination after hearing evidence of not only the parties, but also of thedifferent experts in respect of the issue of custody of the minor child. Furthermore,am I in agreement with what was previously held in other similar matters, namelythat the unnecessary removal of a young child should be avoided, if at all possible.

18Such a step may be disruptive and may only be temporary. The Applicant did notmake out any case for removal of the child based on any danger that she may be inwhile living with the Respondent. The allegations of the mental unstableness of theRespondent are denied. Hearne and Horn recommended that the minor childshould stay in the custody of the mother.[31] In these circumstances and, more particular, in the light of the imminenttrial with a few months in which this issue will be finally resolved, I am notprepared to approve the removal of the minor child from the custody and care ofthe mother to custody of the father now. In making this decision, I am careful notto usurp the function of the trial court that will finally determine the issue ofcustody after hearing all relevant evidence.[32] Costs should follow the result. I do not regard the circumstances of thisapplication as “exceptional circumstances” and the fees applicable should be thefees prescribed in Rule 43(7).Conclusion[33] In the result the application for pendente lite relief, as set out in theApplicant’s notice of motion, is denied in its entirety with costs.MULLER, J.

19ON BEHALF OF THE PLAINTIFF:Mr MoutonInstructed by:Koep & PartnersON BEHALF OF THE DEFENDANTMs Schimming-ChaseInstructed by:Lorentz Angula