IN THE HIGH COURT
OF LESOTHO In the matter of:
STANDARD CHARTERED BANK AFRICA PLC Plaintiff
v FRANCIS MALEFETSANE LICHABA Defendant
Delivered by the Hon. Sir Peter Allen on the 2nd day of
This is a claim for monies lent and advanced by the
plaintiff bank to the defendant's wife. Apparently both of them were
for the bank, the defendant at the Maseru Branch and his
wife, Mrs. Lichaba, at Morale's Hoek Branch, where she was the Branch
In September 1983, the bank advanced to Mrs Lichaba a
loan to purchase a motor car. A car loan account was opened in her
addition to her personal current account. By May 1985 her
repayments of the loan at M.335.80 per month had stopped and the
was in overdraft. In July 1984 she had been dismissed from
the Bank's employment and this action was filed in order to recover
due on the car loan account and M.186.60 due on her
In a letter dated 16 June 1985 addressed to Mrs Lichaba
/the Bank's ...
the Bank's attorneys informed her of this amount due
( a total of M.10,908.73) and that they had been
to issue a summons against her.
That would seem to me to be reasonable in the
circumstances. However, instead of carrying out those instructions
the Bank's attorneys
proceeded to issue a summons and bring this
action against her husband, the defendant, on the grounds that he is
married to her in
community of property. I find this perplexing. If
the Bank could employ Mrs Lichaba, and pay her a salary and run her
and grant her a loan and an overdraft, all in her own name
and right, then why could they not bring a suit against her (as it
stated they were instructed to do)? She could at least have
been a defendant, even if not the only one.
As far as the car loan is concerned the plaintiff relies
on documents to show that the defendant had knowledge of and
the car loan. In document A.8, a letter dated 18 June
1984, from the defendant to the Chief Manager of the Bank, the
that he was aware of the loan. He wrote, "I
am aware that a loan was granted to my wife," and added "since
is married in community of property, the said loan bought an
asset which accrued into the joint estate." Further on he
that the repayment instalments were still being paid at the
rate of M.335.80 per month.
The defendant clearly knew that his wife had this car
since not only did he admit it but apparently he was driving it at
of the accident when the vehicle was written off.
/The defendant's ...
The defendant's contention, however, was that, in the
plaintiff's Declaration, para.3, it states:
" During about September, 1983, Defendant lent and
advanced monies and granted overdraft facilities to Defendant's
wife at her special instance and request and with the
Mr. Pheko submitted that it was thus a foundation of the
plaintiff's claim that the loan and overdraft were granted to her
consent of the defendant at that time, and that this was not
proved, only that he later consented to it. Mr. Pheko therefore
that there was insufficient prima facie evidence to support
the allegation and that there was consequently no case for the
to answer. He asked for absolution from the instance.
Mr. Edeling argued that the consent could be given in
advance or subsequently and that the defendant's later ratification
amounted to consent. There is no doubt that the defendant
did ratify the contract and, as I understand it, if a husband
such a contract, it is validated with retroactive effect,
and the husband must carry out the obligations which his wife
Mr. Pheko next objected that the question of
ratification had only been raised at that stage and that it had not
been pleaded, so
it could not be raised in argument. He did not cite
any authorities for this view. In my view counsel should be ready
as a result of properly preparing a case for trial.
I do not propose to go searching for them when not one is cited.
/As far ...
As far as I am concerned the defendant's consent to the
loan was pleaded. Ratification is merely a later consent which then
retroactive in effect. That means it is also a form of
consent. I consider that it would be an unacceptable quibble to hold
consent pleaded does not include later ratification, and I shall
not do so.
I am satisfied that the defendant did so consent and
that there is a case against him with regard to the car loan.
However, I am not
satisfied that the same applies to the overdraft
facility and I find that the defendant has no case to answer with
regard to that
part of the claim, i.e., for M.186.60.
I have only one other thing to add and that is that I do
not consider that, in the circumstances of this case, a motor car
be considered to be a household necessity. It is a
very useful asset but, nevertheless, a luxury not a necessity.
2nd June, 1987
For the Plaintiff : Mr. Edeling For the Defendant
: Mr. Pheko
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