Ex parte Application of Erhard Van der Merwe (HC-MD-CIV-MOT-GEN 95 of 2020) [2021] NAHCMD 232 (10 May 2021)

Ex parte Application of Erhard Van der Merwe (HC-MD-CIV-MOT-GEN 95 of 2020) [2021] NAHCMD 232 (10 May 2021)

The ante-nuptial contract entered into and registered in Johannesburg in 1988 is valid and effective in Namibia because, at the time, Namibia was part of the Republic of South Africa and the relevant laws applied to the territory. Article 140 of the Namibian Constitution deems such acts as valid unless repealed or declared unconstitutional. Therefore, the legal consequences of the applicants' marriage are not governed by the law of any country other than Namibia as envisaged in section 17(6) of the Deeds Registries Act.

Citation
[2021] NAHCMD 232
Parties
Applicant: Erhard Van Der Merwe; Applicant: Elsabe Van Der Merwe
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
10 May 2021
Case Number
HC-MD-CIV-MOT-GEN 95 of 2020
Procedural Posture
Ex Parte Application / Judgment
Outcome
rule nisi issued in favour of applicants
Legal Topics
Ante Nuptial Contracts, Deeds Registration, Marital Property Regime, Application of Pre Independence Laws
Source Language
English
Constitutional Law Family Law Property Law Ante Nuptial Contracts Deeds Registration Marital Property Regime Application of Pre Independence Laws

Case Brief

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Parties

Erhard Van Der Merwe

Applicant

Elsabe Van Der Merwe

Applicant

Procedural Posture

Ex Parte Application / Judgment

Legal Issues

  1. 1 Whether an ante-nuptial contract registered in South Africa before Namibian independence is valid and effective in Namibia
  2. 2 Whether the legal consequences of a marriage contracted in South Africa before Namibian independence are governed by Namibian law or foreign law under section 17(6) of the Deeds Registries Act

Ratio Decidendi

The ante-nuptial contract entered into and registered in Johannesburg in 1988 is valid and effective in Namibia because, at the time, Namibia was part of the Republic of South Africa and the relevant laws applied to the territory. Article 140 of the Namibian Constitution deems such acts as valid unless repealed or declared unconstitutional. Therefore, the legal consequences of the applicants' marriage are not governed by the law of any country other than Namibia as envisaged in section 17(6) of the Deeds Registries Act.

Court Disposition

rule nisi issued in favour of applicants

Orders

  • A rule nisi is issued, returnable on 24 June 2021, calling on interested parties to show cause why an order declaring the applicants' ante-nuptial contract registered in Johannesburg in 1988 as valid and effective in Namibia should not be made final.
  • Declares that the legal consequences of the applicants' marriage are not governed by the law of any country other than Namibia as envisaged in section 17(6) of the Deeds Registries Act.