By Carmel Rickard
Namibia’s supreme court has given a scathing judgment in the case of a man who resorted to fraud or attempted fraud to hide his new property acquisitions so his ex-wife couldn’t access them for child maintenance. Instead, the properties were bought in the name of his then-fiancée so that they would appear not to belong to him.
Get exclusive access to the groundbreaking story of Ms. Faith Odhiambo’s historic presidency at LSK in our Latest Edition of Nairobi Law Monthly MagazineDownload Latest Edition Now For Ksh 150!
The judges have held that such an agreement was against public policy, ‘morally reprehensible’ and thus unenforceable. The man, who has since walked out on his fiancée and married someone else, was trying to get the properties back from his fiancée now that their relationship had ended.
The Supreme Court ordered that he should get 60% of the two properties and his former fiancée, 40%. The judges also approved the high court’s order that the former fiancée be paid N$5 000 for breach of his promise to marry her.
Sarel Jacobus Burger Oberholzer sounds like the kind of man that mothers warn their daughters about. A new decision by Namibia’s supreme court explains how Oberholzer deliberately set out to hide new property assets he acquired so that his ex-wife wouldn’t know about them when she motivated for maintenance claims for their children. Instead, he arranged with his then-fiancée that any new properties would be bought in her name to disguise his ownership.
He also twice got publicly engaged to the fiancée with whom he was involved in what the court described as a ‘fraud’ to hide the property acquisitions. Then he walked out on her and married someone completely different, before claiming back from the former fiancée the properties that had been bought in her name.
Open about his deceit
Perhaps the most extraordinary feature of the whole case, however, is that Oberholzer seemed to have had no qualms about describing, quite openly, the deceit he practised to deceive his wife and to short-change his children, and his reasons for that deceit.
During the time that Oberholzer and his first wife were in the process of divorce, he moved in with Anna Loots. They lived together from 2011 until the end of 2016 and during that time the couple twice publicly got engaged to be married.
However, during January 2017, he left their common home and soon married someone else.
Then he launched legal action trying to compel Loots to return ownership in the two properties, acquired during the time that he and Loots were engaged. He claimed they were in fact his and that they were only registered in Loots’s name to hide them from his former wife and any further maintenance claims she might bring in relation to their children.
Loots refused to relinquish the properties, saying she held them both in her own right. She also counterclaimed, demanding Oberholzer pay her N$50 000 for breach of his two promises to marry her.
‘Vague and inconsistent’ evidence
The high court found in Loots’s favour on the breach of promise question, but awarded her N$5 000, just a fraction of her claim. The court also dismissed Oberholzer’s own claim against Loots for the ‘return’ of the two properties, finding his evidence had been ‘vague and inconsistent’ as well as contradictory, and thus ‘unreliable and untruthful’.
Oberholzer then took the matter to the supreme court. He challenged the high court’s decision on the question of ‘returning’ the properties, but as he didn’t dispute the breach of promise decision, the supreme court confirmed that award.
On the question of the two properties, the supreme court detailed Oberholzer’s particulars of claim: because he was under the mistaken impression that his ex-wife could claim half of his property – even that acquired after their divorce – he had made an oral agreement with Loots that if he wanted to buy property, this would be done in her name. He said they’d agreed that if the relationship between himself and Loots were to end, she would ‘transfer the property back to him.’
Fraud against potential creditors?
Since that ‘arrangement’ seemed to the court to be one of fraud or attempted fraud (in relation to his former wife), the court asked the two legal teams to deal with the question whether the attempted fraud on his ex-wife wasn’t, by necessary implication, ‘also fraud upon his potential creditors’.
Agreements to defraud creditors or designed to mislead them ‘have always been regarded as being against public policy and hence unenforceable’, the judges wrote in their decision. It wasn’t competent in law to compel someone to satisfy an unenforceable agreement. So, for the court, the central question was whether there was any other basis on which Oberholzer’s claim against the properties could be met.
The court trawled the evidence given to the high court, noting, in some detail, the financial relationship between Oberholzer and Loots, who managed the couple’s accounts until Oberholzer ‘left the common home never to return.’
Hid properties out of ‘spite or malice’
In the process the judges concluded that the maximum that Loots could have paid from her own funds towards the properties’ acquisition costs of N$2 500 000 was N$700 000, or about 28%, with the balance coming from Oberholzer.
Against this background, and commenting on the response of Oberholzer to an email from his ex-wife about whether he would comply with his maintenance obligations to his children, the court said that it was clear that Oberholzer ‘without any reasonable grounds simply refused to comply with his maintenance obligations which could have been nothing more than a nuisance to him.’
The only reason the properties weren’t registered in his name, or jointly with Loots, was ‘his desire to, out of spite or malice, hide the property from his ex-wife so as to make any potential claims with regard to the maintenance of their children more difficult.’
This would, by necessary implication, also affect any potential creditor of Oberholzer. At the least, the agreement with Loots was an attempted fraud against his ex-wife and their children, with a similar impact on potential creditors.
Perhaps the most significant part of the judgment comes next: it doesn’t matter that his ‘arrangement’ with Loots didn’t affect his former wife and their children. It also didn’t matter whether the scheme ‘proved effective or not’, whether it did or did not ‘prejudice the maintenance claim against Oberholzer; whether it affected other creditors … or not, and whether he was insolvent or not’. All of this is ‘of no moment’. The purpose was clearly to hide the assets from his ex-wife ‘and hence was morally reprehensible’, against public policy, and the agreement was thus unenforceable.
It was therefore the duty of the court not to enforce the agreement between Oberholzer and Loots: ‘no order can be given which would amount to the enforcement of the agreement.’
The only way to manage the matter was for the court ‘to do simple justice between the persons involved in the unenforceable agreement’. The judges then concluded that the fairest solution was to award Oberholzer 60% of the joint ownership of the properties, and Loots the remaining 40%. They were free, however, to sell the properties and divide the proceeds pro rata.
The court also confirmed the high court’s breach of promise award, ordering Oberholzer to pay Loots N$5 000