CIV/APN/281/84

IN THE HIGH COURT OF LESOTHO

In the Application of

MARY MOSELA KALACHE Applicant

v.
JAMES RAMABOTSE KALACHE Respondent

JUDGMENT

Delivered by the Hon Mr Justice J L Kheola on the 5th
day of March, 1986

In this application the applicant is seeking an order in
the following terms -

1 "That a Rule Nisi do hereby issue calling upon
the Respondent to show cause, if any, on a date to be determined by
this Honourable
Court, why the Respondent shall not be -

1. 
   Directed not to sell, donate, mortgage,
   pledge,
   lease, dispose of or in anyway
   part with the assets of the joint
   estate
   pending the disposal of the divorce
   proceedings in
   CIV/T/603/84 otherwise
   than in the course of business

   
   

2. 
   Directed to pay maintenance for the Applicant
   in the
   sum of M300.00 per month at the
   Registrar's office with effect
   from the date
   to be determined by this Honourable Court

   
   

3. 
   Directed to pay to the Applicant a sum of
   M350 00
   towards contribution to the
   Applicant's legal costs.

   
   

4. 
   Directed to pay the costs of this application.

   
   

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2 Granting the Applicant such further and/or
alternative relief as the Court may deem fit.

3. That Rule 1 (a) operate with immediate effect as a
temporary interdict."

The Rule Nisi was granted on the 27th December,
1984 and made returnable on the 14th January, 1985 After several
extensions of the rule oral evidence
was heard on the 4th March, 1986
and judgment was given on the 5th March, 1986 On the 27th May, 1986
prayer 1(a) was disposed of
and the oral evidence was concerned with
maintenance and contribution towards applicant's legal costs.

In an application of this nature the applicant must show
that she has a reasonable chance of success in the main action In
other
words, she must show that she has a prima facie case
against the hus band She must prove the wrongful act on the part of
her husband which has forced her to institute the legal
proceedings.
With regard to maintenance she must show that she is in need of
maintenance. In the case of Reid v. Reid, 1951 (1) S.A. 765 at
pp. 769-70 Reynolds, J said

"The position is however, quite different as to the
limited right to a contribution. In order to get this she has to put
before
the Court in some degree proof of the wrongful action of the
husband giving her the right to sue him If she does that, she prima
facie shows that by his wrongful act he has created the necessity
for her to sue him so that she gets her legal rights."

It is common cause that in CIV/T/608/84 the applicant is
suing the respondent for divorce and that that case is still pending
before
this Court. It is also common cause that the respondent has
made a counterclaim for divorce It was argued before me that because
the applicant is no longer willing to prosecute her divorce action
she is not entitled to maintenance pendente lite I rejected
this

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submission on the simple ground that the divorce case is
still pending before this Court because it has not been withdrawn.
The

respondent's counterclaim is also still pending before
this Court. In terms of Rule 39 (2) of the High Court Rules 1980
either the
plaintiff or the defendant may set the case down for trial
if 30 days after the pleadings have been closed or on which the
pre-trial
conference has been held the plaintiff has taken no action
to set down the case for trial.

The applicant testified that on the 7th October, 1984
the respondent expelled her from their marital home saying that he no
longer
loved her. On that same day the respondent was bringing
another woman named Molahloane Ramolahloane into their marital home
and has
been living with that woman as man and wife. She admitted
under cross-examination that she wrote a letter to respondent's uncle
stating
that the respondent must marry another woman. She claims that
she was very angry when she wrote that letter as respondent and some
members of his family had refused to give her permission to go and
see her mother who was very ill at the time

With regard to her husband's ability to pay maintenance
the applicant stated that they have four rooms and one house rented
by tenants.
The rent for one room is R20 per month and R50 per month
for the big house. They have a van which they hired out to people for
transport
of goods from the bus stop to various places around the
town. The transport business brought an income of between R100 and
R150 per
month They also have a brick-making firm which brings in an
income of R900 per month Their total income for a month is R1,180.
She admitted that the respondent no longer receives a monthly salary
as a teacher because he was dismissed from his teaching post
on the
ground of bigamy.

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The respondent did not have any defence against the
appli­cant's claim He admitted that he is now living with
Molahloane Ramolahloane
as man and wife that even if he were to be
ordered to restore conjugal rights to the applicant he would be
unable to do so. He has
paid "bohali" to the parents of
Molahloane Ramolahloane., He alleges that the applicant allowed him
to marry another woman
He pointed out that the applicant has grossly
exaggerated his income The van is occasionally hired by certain
people bo transport
their goods. The income from the brick business
is not constant, it was only on one occasion that the income reached
R900 per month.
He puts the average income from this source as R60
per month

I have thoroughly considered this matter and agree with
the respondent that the applicant has exaggerated the couples monthly
income
I do not propose to base my award on the figures suggested by
the applicant alone I have to rely also on what the applicant claims
to be the amount he can afford to pay. It will serve no purpose to
award a large amount which the respondent cannot afford to pay
In
many cases in which respondent husbands have been ordered to pay
large amounts of money the maintenance case is immediately followed
by contempt of court proceedings in which the respondent is
threatened with imprisonment.

If the husband has a permanent employment and receives a
regular monthly salary it is usually easy for the court to assess
what main­tenance
can be "paid by such husband without
causing him hardships In the instant case the only regular income is
that from rent I
shall ignore the income from the van and take into
account the average of R60 per month from the sale of bricks.

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There was no dispute about the contribution towards the
applicant's legal fees It was common cause that the respondent had
offered
to the applicant two beasts from the joint estate to cover
these legal costs. The applicant and her attorney were not very keen
to
accept animals but wanted cash I cannot blame them for that
attitude because animals are not only cumbersome to some people
living
in towns but cannot know in advance what the market price of a
beast is going to be .

I come to the conclusion that the applicant has proved
her case on a balance of probabilities. The application is granted in
terms
of prayers 1 (b) and (c) but prayer 1 (b) is not granted as
prayed with regard to the sum prayed for in the Notice of Motion, The
respondent is ordered to pay R100-00 per month at the Registrar's
office as maintenance for the applicant The money shall be paid
on
or before the last day of every month with effect from the 31st
March, 1986.

J.L. KHEOLA JUDGE.

28th May, 1986.

For Applicant - Mr Pheko
For Respondent - Mr.
Maqutu.