High Court of Namibia Main Division, Windhoek

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 3133/2011

In the matter between:

HARALD JURGEN WIERS APPLICANT/PLAINTIFF and

SIGRID IRMTRAUT WIERS (Born HULSMANN) RESPONDENT/DEFENDANT

Neutral citation: Wiers v Wiers (I 3133/2011) [2014] NAHCMD 66 (26 February 2014)

Coram: UEITELE J

Heard: 17 October 2013

Delivered: 26 February 2014

Flynote: Practice - Pleading – Particulars of Claim - Exception - Not ground for exception that one of several claims arising out of one cause of action is not supported by the particulars of claim. 2 Pleadings - Exception - On ground that pleading vague and embarrassing - Must go to whole cause of action and not to particular paragraphs of pleading.

Summary:

Plaintiff issued summons against the defendant for restitution of conjugal rights, or failing therewith, a final order of divorce.

Defendant filed her plea and simultaneous therewith a counterclaim. In her counterclaim the defendant also claimed restitution of conjugal rights and if the plaintiff failed to comply therewith a final order of divorce. The defendant also asked for other ancillary relief, amongst others the relief that an immovable property registered in the name of the plaintiff be sold and that the proceeds be divided equally between the parties.

The plaintiff excepted to the plaintiff’s counterclaim on the ground that since the parties were married out of community of property without the accrual system there was no legal basis for defendant’s reliance on international law or the Namibian Constitution, to pray for the sale of the common home and the equal division of the proceeds therefrom.

Held, that in the present case (the counterclaim) there is only one cause of action, namely the alleged breach of the marriage contract committed by the plaintiff. The allegations by the plaintiff on which she relies to allege that the plaintiff breached the marriage contract are not meaningless, they are clear and are not capable of more than one meaning.

Held, further that an exception to a pleading, to be successful, must be directed at each separate and distinct cause of action or at a particular cause of action and that an exception to the whole of a declaration on the basis that it does not support one of two claims arising out of one cause of action is bad.

Held furthermore that the first claim (the restitution of conjugal rights), the major claim, is just as much part of the cause of action as the second, the minor claim. That if the averments in the particulars of the counterclaim are sufficient to sustain the major claim, 3 then, even if they are not sufficient to sustain the minor claim, they are sufficient to sustain the action in part. The plaintiff is not entitled to have the counterclaim set aside because it is not sufficient to sustain both the major and the minor claims in the action.

The plaintiff’s exception filed against the defendant’s counterclaim on the basis that the particulars of claim are vague and embarrassing and do not disclose a cause of action, is dismissed with costs.

JUDGMENT

UEITELE J:

INTRODUCTION

[1] The parties to these pleadings married each other at Windhoek on, 21 April 1979. The parties concluded an antenuptial contract prior to their marriage. On 27 September 2011 (i.e. after thirty two years of the subsistence of the marriage) the husband (whom I will refer to as the plaintiff in this judgment) sued the wife (whom I will refer to as the defendant in this judgment) for restitution of conjugal rights and if the defendant fails to restore conjugal rights a final order of divorce, as well as other ancillary relief.

[2] The defendant filed a notice to defend the action and also filed her plea. Simultaneously with her plea the defendant filed a counterclaim. In her counterclaim the defendant also claimed for restitution of conjugal rights and if the plaintiff fails to restore conjugal rights a final order of divorce and also other ancillary relief. 4 [3] In her ancillary relief the plaintiff in Claim 1 (paragraph 3), claimed the following:

‘3 Forfeiture of the benefits of the marriage out of community of property in specific forfeiture of the following property:

3.1 Immovable property situated at Erf No. 531, Pioneerspark Windhoek;

3.2 A motor vehicle being a Renault Expression 2010;

3.3 An order directing the plaintiff to sign all documents incidental to the transfer of ownership in respect thereto and should he fail and/or refuse to do so within 21(twenty one) days of the final order of divorce, that the deputy Sherriff be authorized to sign all such documents on his behalf.’

[4] The plaintiff requested further particulars to the defendant’s counterclaim. After the defendant provided the requested particulars, the plaintiff took an exception to the defendant’s counterclaim on the basis that no cause of action was made out against him. The matter was set down for hearing the exception on 21 May 2013. On 07 May 2013 (that is two weeks prior to the date set down for hearing the exception) the defendant gave notice in terms of Rule 28 of her intention to amend her counterclaim by deleting the entire Claim 1 and replacing it with the following paragraphs (I quote verbatim from the amended counterclaim):

‘4 At common law, both spouses have equal rights to remain in the matrimonial home regardless of who is the owner of the house.

5 At common law the husband, even if he is the owner of the house occupied by the couple, has no right while the marriage subsists to eject his wife from the common home without providing her with suitable alternative accommodation.

6 Article 14 (1) of the Namibian Constitution (“the constitution”) provides that men and woman shall be entitled to equal rights as to marriage, during marriage and at its dissolution. 5 7 Article 10 (1) of the Constitution states that all persons shall be equal before the law. Article 10 (2) states that no person shall be discriminated against, on the grounds of social or economic status.

8 Namibia has signed and ratified the Universal Declaration of Human Rights (“UDHR”) and the Convention Eliminating Forms of Discrimination Against Women (“CEDAW”). Article 16 of UDHR and Article 16 of CEDAW provide that spouses shall have equal rights and responsibilities at the dissolution of a marriage.

9 By virtue of Article 144 of the Constitution, both UDHR and CEDA (“international law”) form part of the law of the Republic of Namibia.

10 By virtue of the provisions of the Constitution referred to and international law, the common law right to remain in the matrimonial home regardless of ownership and the right not to be ejected from the common home without the provision of alternative suitable accommodation is preserved at the dissolution of the marriage.

11 Defendant submits that, she is entitled to be provided with alternative suitable accommodation by the plaintiff, alternatively entitled to use and enjoy the common home irrespective of the dissolution of the marriage.

12 Defendant submits that such order is necessary and appropriate, to secure her the enjoyment of the rights and freedoms conferred to her by the Constitution and international law having regard to the following facts:

a) plaintiff and the defendant have been married for 33 years; b) in 1983, defendant contributed towards the purchase of the common home by paying the deposit in the amount of Rand 2 500.00; c) defendant has over the years invested about N$72 000.00 into the upkeep of the common home; d) defendant financially assisted plaintiff with N$66 000.00, when he purchased a house in Swakopmund; e) defendant worked for the plaintiff’s company as an office administrator without payment from 1995 to 1998, without receiving a salary; 6 f) defendant made substantial financial contribution to managing the joint household; g) defendant is now 55 years old and will be unable to afford alternative suitable accommodation and at the same time maintain herself and the two children; h) plaintiff’s estate, which includes the common home, has been maintained and has grown in value as a result of the contributions and assistance by the defendant.’

WHEREFORE DEFENDANT PRAYS FOR AN ORDER IN THE FOLLOWING TERMS:

‘1 … 2 an order selling the immovable property situated at Erf 531, Pioneers Park, Windhoek and that the proceeds from the sale be divided equally between the plaintiff and the defendant.’

[5] When the plaintiff did not, as contemplated in Rule 28(2), object to the notice to amend the counterclaim, the defendant on 31 May 2013 filed an amended counterclaim. On 01 July 2013 the plaintiff again filed an exception to the amended counterclaim. The plaintiff’s exception is based on the grounds that the defendant’s amended counterclaim is excipiable on the basis that it is vague and embarrassing for the following reasons:

‘2 In paragraph 11, defendant claims that she is entitled to be provided with alternative suitable accommodation by the plaintiff, alternatively entitled to the use and enjoyment of the common home irrespective of the dissolution of the marriage- by virtue of her reliance on the following.

2.1 article 14 (1) of the Namibian Constitution (paragraph 6); 2.2 article 10 (1) of the Namibian Constitution (paragraph 7); 2.3 the Universal Declaration of Human Rights (paragraphs 8); 2.3 the Convention Eliminating Forms of Discrimination against Women (“CEDAW”) (paragraph 8); and 2.4 article 144 of the Namibian Constitution. 7 3 It is common cause that the parties are married out of community of property without the accrual system, and there is accordingly no basis for defendant’s reliance on international law and/or the provisions of the Namibian Constitution, and to pray for the sale of the common home and the equal division of the proceeds therefrom.’

[6] The defendant resists the exception. The basis on which the defendant resists the exception is that the defendant’s counterclaim raises the question whether irrespective of the property regime that the parties entered into, the Court has the power, at the dissolution of the marriage, based on article 14 of the Namibian Constitution and international law, to take into account the contributions of the parties during the marriage and to make a just and equitable order with regard to the matrimonial property. I therefore have to consider whether the exceptions raised by the plaintiff can be upheld or not.

The legal principles

[7] Before I consider the question whether the exception raised by the plaintiff can be upheld or not, I will briefly set out some of the legal principles which are applicable to exceptions.

[8] The onus of showing that a pleading is excipiable rests on an excipient. 1 The Cape Provincial Division of the High Court of South Africa articulated the general approach to exceptions in the case of Colonial Industries Ltd v Provincial Insurance Co Ltd 2 as follows:

‘Now the form of pleading known as an exception is a valuable part of our system of procedure if legitimately employed: its principal use is to raise and obtain a speedy and economical decision of questions of law which are apparent on the face of the pleadings: it also serves as a means of taking objection to pleadings which are not sufficiently

1 Kotsopoulus v Bilardi 1970 (2) SA 391 (C) at 395 D. 2 1920 CPD 627 (at 630). 8 detailed or otherwise lack lucidity and are thus embarrassing. Under the name of ''Demurrer'' it grew under the old English practice into a most pernicious evil: the Courts of Law abnegating their functions as Courts of Justice directly countenanced and encouraged the ingenuity of counsel in drafting fine demurrers which ignored the rights on which they were called to adjudicate. I think that the possibility of such abuse of legal proceedings should be jealously watched and that save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excipient should make out a very clear, strong case before he should be allowed to succeed.” (Italicized and underlined for emphasis.)

[9] This approach to exceptions has been consistently followed in this Court, see for example, Namibia Breweries Ltd v Seelenbinder, Henning & Partners3 Total Namibia (Pty) Ltd v Van der Merwe t/a Ampies Motors4 July v Motor Vehicle Accident Fund5, and the approach is neatly summed up by one writer6 in the following manner:

‘The court should not look at a pleading with a magnifying glass of too high power. It is the duty of the court when an exception is taken to a pleading first to see if there is a point of law to be decided which will dispose of the case in whole or in part. If there is not, then it must see if there is an embarrassment which is real as a result of the faults in the pleadings to which exception is taken. Unless the excipient can satisfy the court that there is such a point of law or such real embarrassment the exception should be dismissed.’

[10] This court7 has accepted the principle stated in the case of Mckelvey v Cown NO8 that: 3 2002 NR 155 (HC). 4 1998 NR 176 (HC). 5 2010 (1) NR 368 (HC) 6 See Joubert (ed) Law of South Africa vol 3 part 1 (first re-issue by Harms and Van der Walt, 1997) at para 186. 7 Supra at page 371. 8 1980 (4) SA 525 (Z) at page 526. 9

‘ It is a first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action.’

[11] Parker, J in the case of Taswald Theo July v Motor Vehicle Accidents Fund stated at para 8 that :

‘ In Joseph Frans Kuiiri v Bulk Trade and others Case No. I 103/05 (judgment of 31 March 2006) (Unreported), I stated at p. 12, ‘The crisp question to determine is essentially this: is the defendant’s contention that the plaintiff’s pleading objected to, taken as it stands, is legally invalid for its purpose well founded? (see Salzmann v Holmes 1914 AD 152 at 156).’ I then proceeded at pp. 12-13 of the judgment to set out briefly as follows what I consider to be the general principles of law on exception: It is a cardinal principle in dealing with exception that if evidence can be led, which disclosed a cause of action alleged in the pleading, that particular pleading is not excipiable. Thus, a pleading is excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action. (See McKelvey v Cowan NO 1980 (3) SA 525 (Z) at 526 C- F). Besides, as Mr. Coleman, counsel for the plaintiff, submitted, an exception is restricted to pure matters of law and facts alleged are taken to be admitted. (Isaacs, Becks Theory and Principles of Pleading, 982: par. 62.) In other words, “[F]or the purposes of exception the facts pleaded must be accepted as correct.” (Marney v Watson and another 1928 (4) SA 140 (C) at 144 F-G) That is so, unless the facts pleaded are plainly false and so clearly baseless that it cannot possibly be proved. (Van Winsen, et al., The Civil Practice of the Supreme court of South Africa (Now the High Court and Supreme Court of South Africa), 1997: p 492, and the case there cited)’.

The legal principles applied to the facts

[12] I now proceed to consider the defendant’s exception under the heads 'No cause of action' and 'Vague and embarrassing.'

The exception on the ‘vague and embarrassing’ ground 10

[13] Mr Boesak counsel for the plaintiff in his heads of arguments and also in oral argument submitted that it is common cause that the parties are married out of community of property without the accrual system, and there is accordingly no basis for defendant’s reliance on international law ‘and/or’ the provisions of the Namibian Constitution, and to pray for the sale of the common home and the equal division of the proceeds therefrom.

[14] Rule 23(1) in material terms provides as follows:

‘23. (1) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of paragraph (f) of subrule (5) of rule 6: Provided that where a party intends to take an exception that a pleading is vague and embarrassing he or she shall within the period allowed as aforesaid by notice afford his or her opponent an opportunity of removing the cause of complaint within 14 days: Provided further that the party excepting shall within 10 days from the date on which a reply to such notice is received or from the date on which such reply is due, deliver his or her exception.'

[15] The plaintiff did not, as is required by the proviso to Rule 23(1) cause a notice to be served on the defendant to remove the cause of complaint. In the Jowell v Bramwell- Jones and Others case Heher, J said:

‘ The object, of course, of all pleadings is that a succinct statement of grounds upon which a claim is made or resisted shall be set forth shortly and concisely; where a statement is vague, it is either meaningless, or capable of more than one meaning. It is embarrassing in that it cannot be gathered from it what ground is relied on, and therefore it is also something which is insufficient in law to support in whole or in part the action or defence.' (Italicized and underlined for emphasis.)

[16] I begin by defining the action in the present case (the counterclaim). It is one for restitution of conjugal rights and failure therewith an order of divorce. There is only one 11 cause of action, namely the alleged breach of the marriage contract committed by the plaintiff. The defendant in her particulars of claim sets out the allegations (e.g. that the plaintiff demonstrated no interest in the continuation of the marital relationship, plaintiff verbally, emotionally and psychologically abused the defendant, plaintiff physically abused the defendant by subjecting her to his sexual perversions, and plaintiff repeatedly used foul language towards and in respect of the defendant). The allegations by the plaintiff on which she relies to allege that the plaintiff breached the marriage contract are not meaningless, they are clear and are not capable of more than one meaning.

The exception on the ‘no cause of action’ ground

[17] Mr Boesak furthermore submitted that the defendant’s amended counterclaim is excipiable for the reason that same does not disclose a cause of action in terms which defendant prays for the sale of the common home and that the proceeds of such sale be equally divided between the parties, due to the fact that the parties were married out of community of property without the accrual system, and that there is no basis in law for defendant’s attempt to seek relief for the sale of the common home and division thereof.

[18] It has been held that an exception to a pleading, to be successful, must be directed at each separate and distinct cause of action or at a particular cause of action 9 and that an exception to the whole of a declaration on the basis that it does not support one of two claims arising out of one cause of action is bad10. I have indicated above that there is only one cause of action, namely the breach of the marriage contract committed by the plaintiff. The ancillary relief claimed by the defendant is based on that cause of action (the breach of the marriage contract committed by the plaintiff).

9 Per Heher, J in Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 899. 10 Per Hoexter, J in Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 705D, 706D. 12 [19] The first claim (the restitution of conjugal rights), to which I will refer as the major claim, is just as much part of the cause of action as the second, to which I will refer as the minor claim. It follows that if the averments in the particulars of the counterclaim are sufficient to sustain the major claim, then, even if they are not sufficient to sustain the minor claim, they are sufficient to sustain the action in part. The plaintiff is not entitled to have the counterclaim set aside because it is not sufficient to sustain both the major and the minor claims in the action. That is nevertheless what the plaintiff asks the Court to do in the second leg of his exception. He excepts to the whole counterclaim on the ground that the averments therein do not sustain merely the minor claim.

[20] I am of the further opinion that in the present matter Mr Boesak fails to distinguish between the cause of action and the relief claimed by the defendant in her counterclaim. As I have indicated above the defendant’s cause of action is the plaintiff’s alleged breach of the marriage contract. The defendant has set out facts which if proven at trial will clearly entitle her to the main relief which she claims (namely a restitution of conjugal rights and failure therewith the dissolution of the marriage) but the fact that she may not be entitled to the minor relief (which is stated in the alternative) cannot be the basis to set aside her counterclaim. The defendant has therefore successfully resisted the exceptions and is entitled to her costs.

[21] In the result the following order is made:

The plaintiff’s exception filed against the defendant’s counterclaim on the basis that the particulars of claim are vague and embarrassing and do not disclose a cause of action, is dismissed with costs.

------SFI Ueitele Judge 13 APPEARANCES

PLAINTIFF: A W Boesak Instructed by Kirsten & Co Inc

DEFENDANT: N Marcus Of Nixon Marcus Public Law Office