A Namibian man who tried to outsmart his ex-wife by hiding all his assets under his girlfriend’s name, got more than what he bargained for when the Supreme Court of Namibia (SCN) ordered him to share his business and property with his girlfriend after breaking up.
Sarel Jacobus Burger Oberholzer was in the middle of a divorce from his ex-wife when he met Anna Marria Loots.
The two lived together as husband and wife from 2011 until the end of 2016. They held two engagement parties but never got married.
At one point, Oberholzer fell into arrears with respect to child maintenance.
The court documents didn’t mention how many children he had in his failed marriage.
Even after the divorce, he was under the impression that his ex-wife, to whom he was married in community of property, would be entitled to lay claim to his property for the unpaid maintenance.
In an effort to flee from his obligations, Oberholzer entered into an oral agreement with Loots in that whenever he wished to acquire property, it would be done in her name, and should their relationship flounder, she would transfer the property back to him.
He registered a property in Henties Bay and the Pub & Grill business under Loots.
Loots became involved in the business by assisting with the finances and administration of its operations.
As her responsibilities piled up, she left her job to work on the business full-time.
Loots described herself as being in charge of the day-to-day administration, the payroll, the payments, the head of human resources, and the person who did all the negotiations on behalf of Oberholzer, as she was more proficient with English as opposed to Oberholzer.
The couple also operated other businesses where Loots was involved in running the operations.
In January 2017, their relationship came to an end when Oberholzer left the common home.
Oberholzer instituted legal action against Loots to compel her to transfer the property as well as the total membership of the Pub & Grill.
Loots, apart from denying the claim by Oberholzer, also instituted a counterclaim against him for damages of N$50,000 (R50,000) in respect of his breach of promise to marry her.
The high court dismissed Oberholzer’s application, saying his evidence was "vague and inconsistent" and contained contradictions, which made it "unreliable and untruthful."
Meanwhile, Loots was granted N$5,000 (R5,000) for the counterclaim, along with interest and costs.
Unhappy with the outcome, Oberholzer appealed the decision, and it was heard at the SCN.
After hearing the matter, the SCN established that, on a balance of probabilities Oberholzer was motivated by the desire to conceal the fact that he owned a business and property.
He did this to undermine any maintenance claim the ex-wife might have against him on behalf of their children.
“Out of malice, (he) decided that he would make it as difficult as possible for his ex-wife to get him to pay the maintenance of their children, despite the fact that he had more than sufficient funds and sources of funds to pay such maintenance,” read the court papers.
Meanwhile, it was said that it must be borne in mind that Loots resigned her previous work, which affected her pension and medical aid fund benefits, to assist Oberholzer in running the business for their benefit.
The court said Loots acted on the basis that she and Oberholzer would marry and thus was content to make contributions to the relationship, as she was under the impression that whatever assets either of them acquired, it would be for the benefit of both of them.
Loots was ordered to transfer 60% of the business and 60% of the property to Oberholzer.
The court ruled that if they cannot live with this situation, one can buy out the other, a third party can buy out one of them, or they can sell the property and divide the net proceeds.
In respect of Loots counterclaim, the court ordered Oberholzer to pay her N$5,000 (R5,000) plus interest at the rate of 20 percent per annum reckoned from April 1, 2022, to November 2023.