IN THE HIGH COURT OF LESOTHO In the
Matter of :
MARY 'MAMOTHIBI THEKO Plaintiff
v MARAKABEI THEKO Defendant
Delivered by the Hon. Chief Justice Mr. Justice T.S.
Cotran on the 20th day of November 1984
The delay in delivering Judgment in this case is very
much regretted. On the 28th day of March 1984 attorney for
Plaintiff/Judgment Creditor/Applicant, Mr. Maqutu, had set
down the application for hearing on the 25th October 1984 and duly
gave notice to the attorney for the Defendant/Judgment
Debtor/Respondent, Mr. Sello. The attorneys, however, managed
to get from the Registrar an earlier date and argument was heard
before me on the 14th June 1984.
Judgment was reserved.
When I came to write the Judgment a few days later I
found that a number of documents referred to by the parties were not
to the papers and I passed the file to the Registrar
instructing him to write to attorneys to produce the documents
attorneys substantially complied, Mr. Sello on the
26th June 1984 and Mr. Maqutu on the 29th June 1984.
The Registrar put the letters in his file but did not
indicate their receipt in the Judge's file, until the case appeared
on the roll
for the 25th October 1984, the original set down date. It
is important that when a Judge reserves
Judgment and nothing is heard from him after a month
that a reminder is sent to the Registrar asking him to draw the
the Judge to a Judgment expected. The file of a case
reserved for Judgment can be taken away from the Judge's tray for
or the other and not returned. The file was returned to
my desk, through good fortune, together with others that had been
on the roll for the week beginning 22nd October 1984.
On the 31st August 1982 in CIV/T/249/82 the marriage
between the plaintiff/applicant and the defendant/respondent,
be one in community of property, was rescinded on the
ground of fraud and the Court ordered that the parties be restored,
as property was concerned, to the status quo ante. In her
action the plaintiff/applicant claimed that she made over to the
substantial property moveable and immovable. The
"marriage" appeared to have been short lived and the Court
did not expect
great difficulty that the parties themselves would
agree to an account that would have brought their financial
relationship to an
This was not to be and Mr. Buys, an attorney of
this Court, was appointed "liquidator". His mandate was
circumscribed by Mofokeng J in an order made on
the 6th December 1982
"1. the liquidator to see that defendant restores
to plaintiff any property moveable or immovable that plaintiff made
the liquidator to see that plaintiff restoresto
defendant any property moveable or immovablethat defendant made
over to plaintiff
to refer disputes or matters not capable ofeasy
determination to the Court for finalization.
The "liquidator" interviewed the parties and
their attorneys. He conducted an examination of the accounts and the
as they were, and submitted a provisional report to Mr.
Maqutu and to the Court via the Registrar. This is dated the 7th
September 1983. It reads as follows:
"Dear Sir RE: LIQUIDATION - ESTATE -
With reference to the above mentioned matter, we
herewith submit our Provisional Report, which we trust you will find
in order. Kindly
be advised that it is required immediately from Mr.
Theko to forward all assets and fees found to be the property of Mrs.
Kindly note that should this not be effected within
seven days your liquidator will take the necessary steps to collect
Mr. Maqutu is specifically required to arrange for a
meeting with the writer hereof and Mrs. Theko's previous husband.
A further report will be filed as soon as the
investigations have been concluded.
(Sgd.) S.C. Buys E.G. Cooper & Sons"
Mr. Maqutu moved the Court on the 1Oth October
1983 seeking orders to make the recommendations of the liquidator an
order of Court and to give
him directions "about matters in
which he is in doubt".
The liquidator reported favourably on
plaintiff/applicant but adversely on the defendant/respondent. The
liquidator found that plaintiff/applicant
has established that she
was entitled to:
M10,600 which she gave to defendant/respondentafter
mortgaging her house to the bank;
interest on her loan from the bank;
the sum of M273.35 she paid for a deep freezefrom
Fraser's which the defendant refused tosurrender;
a Datsun vehicle which she gave to
He also recommended that 50% of the value of stock in
trade of a shop operated by the parties before the break up should go
The application was resisted by the defendant/respondent
except to the extent of the items he was prepared to acknowledge were
plaintiff/applicant property. These were the kitchen utensils,
clothing, a Hi Fi set, a hammermill and, reluctantly, a dog and were
duly returned before Mr. Maqutu moved the Court. The
defendant/respondent concedes that he did not submit a claim against
the plaintiff/applicant but this was because
she had nothing in his
possession belonging to her. He did not dispute that the
plaintiff/applicant had obtained a loan from the
bank on the security
of her property but the sum she gave him was M3.837.34 of which he
repaid to the bank M1,300. He adds that he
should be liable only for
the difference between these two amounts "if at all"
because the principal amount he obtained
from her was "utilised"
for their "mutual benefit" and she could not in any event
have the M3.837.34 as well
as 50% of the value of the stock in trade
of the shop because that tantamounts to a division not restitution.
He avers that part
of the loan went to purchase stock for her own
shop which she still runs. He denies that the plaintiff/ applicant
paid M273.35 for
the freezer. He says he bought the Datsun and
tractor from her before marriage and paid her the purchase price as
per a written agreement
of sale. The cow was his. The maximum the
defendant/respondent was prepared to be generous with is the sum of
The Court, it should be remembered, did not order
division of the joint estate. Restitution, however, is something akin
to it because
what was behind the order was that plaintiff/ applicant
should get back all she put in. No immovable property was given away
there are disputes on:
whether she gave defendant/respondent thebalance of
the loan of M10.600 she obtainedfrom the bank on mortgaging her
whether she is entitled to get
fromdefendant/respondent the interest she ispaying on the
whether or not the sum of M2/3,35 was paidby
plaintiff/applicant to Fraser's,
whether she is entitled to get back theDatsun
vehicle, the tractor, and the blackand white cow and its calf.
The liquidator decided in favour of the plaintiff/
applicant on all the above claims save the tractor and the black and
and the calf on which he sought directions.
It is difficult for me to see on what basis Mr.
Maqutu wants the Court to summarily "confirm" the
"liquidator's" findings and to hear viva voce only on the
rest. Mr. Buys was not strictly speaking a liquidator. He was
really employed to make an account if he could of property advanced
for a "marriage"
that never was. His terms of reference did
not include making decisions over disputes. He was not a liquidator
of a universal partnership.
There is no alternative to hearing viva
voce evidence from the parties about the matters in dispute. I so
direct. The liquidator
called as a witness by the applicant to give evidence in
support of his report. In the meantime I confirm Mr.
Buys findings in so far as defendant/respondent admits them and I
also order that the sum of M3,837.34 with interest at 11% from
until settlement be paid by the defendant/respondent a sum
which he admits receiving.
The costs of this application will be determined at the
conclusion of the viva voce evidence on the matters in dispute
parties. Will the Registrar please fix an early date.
CHIEF JUSTICE20th November 1984 For
Plaintiff/Applicant : Mr. Maqutu For Defendant/Respondent: Mr,
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