Red Line Marriage Showdown…Egyptian Heir Loses Indigenous Proclamation Battle
An Egyptian national who has taken up residence in Namibia is set to appeal a High Court ruling that declared the marriage between his father and a Chinese national, celebrated in Katima Mulilo, to be in community of property.
Windhoek High Court Judge Herman Oosthuizen issued the decision after Liyan Sheng asked 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 executor of the late Eltalimy’s estate, informed her that since the marriage was beyond the veterinary cordon, also known as the Red Line, it was subject to Native Administration Proclamation 15 of 1928, and is automatically considered non-community property.
Maged Michial Kamel Eltelemy, the deceased’s son and sole heir, according to the last will and testament, opposed the application and asserted that his father was a naturalized Namibian citizen and therefore subject to the provisions of the proclamation.
Judge Oosthuizen, however, disagreed and said the marriage was indeed in community of property, which gives Sheng the right to 50% of the late Eltalimy’s estate, and this consists of a house in Katima Mulilo and commercial premises and land. .
Section 17(6) of Native Administration Proclamation 15 of 1928 was brought into force north of the police area in northern Namibia with effect from 1 August 1950. Sections 23 to 27 apply elsewhere in Namibia from January 1, 1930. Article 17(6) of the proclamation provides that a marriage between “natives” produces the legal effects of a marriage in community of property between the spouses only if the future spouses have jointly declared before a magistrate one month before the wedding that it is their intention that community of property, profits and losses will result from their marriage. According to the judge, the relevant section provides that an “indigenous” includes any person who is a member of an aboriginal tribe in Africa.
“In the application under consideration, the applicant (Sheng) is a Chinese national residing in Namibia and her ex-husband, the late Eltalimy, was an Egyptian national by birth holding Namibian nationality by naturalization. They got married in Katima Mulilo (north of the red line and part of the police zone) on April 12, 2013,” the judge said.
“Their marriage certificate indicates that they were married ‘outside community of property’, without giving any reason. It is common ground that the applicant and the deceased did not conclude a marriage contract and did not made a joint declaration a month before their wedding that they wished to marry in community of property.
Oosthuizen further stated that no evidence has been presented that Sheng or the late Eltalimy were living under the same conditions as the natives (which in itself would have been a close possibility in today’s societal reality), meaning that no of them could not be classed as natives.
In his view, the judge said there was no logical or legal basis for defining marriage as a marriage out of community of property at the time of marriage, nor is there 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 proclamation on native administration finds no application.
He thus declared that Sheng was entitled to half of the late Eltalimy’s estate and ordered Eltelemy to pay the cost of the lawsuit.
Karel Gaeb, who represents Sheng, said Eltelemy is welcome to appeal Oosthuizen’s decision and is 100% sure the decision will be upheld by the Supreme Court.
According to him, several precedents have been created by current law and by past judgments.
“The proclamation makes specific mention of natives of certain areas and excludes foreigners,” he explained.
“It only specifies local tribes”. Regarding the will which makes Eltelemy the sole beneficiary, he specifies that it only concerns the 50% which he will inherit from the paternal estate.
Eltelemy is represented by Vernon Lutibezi of K Kamwi Law Chambers.