An Egyptian national who made Namibia his home is set to appeal a High Court ruling that declared the marriage between his father and a Chinese national, which was conducted in Katima Mulilo, as being in community of property. 

Windhoek High Court Judge Herman Oosthuizen made the ruling after Liyan Sheng brought an application for the court to declare that she and Khamel Shenouda Eltalimy, an Egyptian national who died in October 2013, about six months after their marriage, were married in community of property.  This was after Bank Windhoek, as the executor of the estate of the late Eltalimy, informed her that since the marriage was beyond the veterinary cordon fence, also known as the Red Line, it was subjected to the Native Administration Proclamation 15 of 1928, and is automatically viewed as out of community of property. 

Maged Michial Kamel Eltelemy, the son of the deceased and sole heir, according to the last will and testament, opposed the application and claimed his father was a naturalised Namibian citizen and thus subjected to the provisions of the proclamation. 

Judge Oosthuizen, however, did not agree and declared that the marriage was indeed in community of property, which entitles Sheng to 50% of the estate of the late Eltalimy, and this consists of a house in Katima Mulilo and business premises and tracts of land. 

Section 17(6) of the Native Administration Proclamation 15 of 1928 was brought into force north of the Police Zone in northern Namibia with effect from 1 August 1950. Sections 23 to 27 apply elsewhere in Namibia with effect from 1 January 1930. Section 17(6) of the proclamation provides that a marriage between “natives” shall not produce the legal consequences of a marriage in community of property between the spouses unless the intending spouses have jointly declared before a magistrate one month prior to the marriage that it is their intention that community of property, profit and loss shall result from their marriage.   According to the judge, the relevant section provides that a “native” shall include any person who is a member of any aboriginal tribe of Africa.  

“In the application under consideration, the applicant (Sheng) is a Chinese national residing in Namibia and her former husband, the late Eltalimy, was an Egyptian national by birth with Namibian citizenship through naturalisation. They were married in Katima Mulilo (north of the Red Line and part of the Police Zone) on 12 April 2013,” the judge said.

“Their marriage certificate informs they were married ‘out of community of property’, without stating a reason therefore. It is common cause that the applicant and the deceased did not enter into an ante-nuptial contract and neither made a joint declaration one month before their marriage that they wanted to be married in community of property.”

Oosthuizen further stated that no evidence was tendered that either Sheng or the late Eltalimy lived under the same conditions as natives (which in itself would have been a near possibility in current societal reality), which means that neither of them could be classified as natives. 

In his considered view, the judge said, there was no logical or legal basis to define the marriage as one out of community of property at the time of the marriage, and neither does there exist such a basis or reason now. 

He declared that the marriage between Sheng and the deceased was not a marriage between natives, and that the Native Administration Proclamation finds no application. 

He thus declared that Sheng is entitled to half of the late Eltalimy’s estate, and ordered that Eltelemy pay the cost of the suit. 

Karel Gaeb, who is representing Sheng, said Eltelemy is welcome to appeal the ruling of Oosthuizen, and that he is 100% sure of the ruling being upheld by the Supreme Court. 

According to him, several precedents have been created by the law as it stands now and by past judgements. 

“The proclamation makes specific mention of natives of certain areas, and excludes foreigners,” he reasoned.

“It specifies local tribes only”. With regard to the will that makes Eltelemy the sole beneficiary, he said that it only concerns the 50% he stands to inherit from his father’s estate.

Eltelemy is represented by Vernon Lutibezi from K Kamwi Law Chambers.