CIV/APN/109/89 CIV/APN/111/89 CIV/APN/116/89
IN THE HIGH COURT OF LESOTHO
In the matters between:-
'MAMOSIAKO ATHALIA MODISE Applicant
PHILLEMON MOKALAKE MODISE Respondent
Delivered by the Honourable Mr. Justice J.L. Kheola on
the 16th day of June, 1989
These three applications deal with the same matter
regarding the suspension of a husband's marital powers. He has
and asked that the wife should be ordered to
restore to him certain property which belongs to the joint
In CIV/APN/109/89 the wife sought and obtained ex parte
an order in the following terms:-
(a) The Respondent shall not be restrained from
alienating, dealing with, disposing of, transfering and
encumbering in any manner whatsoever any movable or immovable
it may be situated forming part of the joint
estate of the Applicant, pending an action instituted by the
Applicant against the Respondent
and one Itumeleng Gertrude Mokhothu
in the High Court of Lesotho CIV/T/180/89.
(b) The respondent Shall not be restrained
either..personally or through his agents from demanding
that the Applicant should hand over to the Respondent
Leases, Certificates of title or letters Of Allocation in
respect of the
immovable property, forming part of the joint estate;
pending finalisation of the abovementioned CI.V/T/180/89.
The Respondent shall not be directed to pay the
costsof this application.
The Applicant may not be granted such further
and/oralternative relief that the Honourable Court maydeem
2. That prayers 1 (a) and (b) operate as interim
relieves with immediate effect."
In CIV/APN/111/89 the husband anticipated the return day
in CIV/APN/109/89 and at the same time brought a counter-application
basis in which he sought and obtained ex parte an order
against his wife, Lesotho Bank and Lesotho Building Finance
in the following terms:
"1. Dispensing with periods of notice required
by the Rules on the grounds of urgency of this application.
2.(a) Directing First respondent forthwith to
release to applicant all such personal belongings and clothing as are
applicant and applicant's second wife Itumeleng
Modise, which are in respondent's matrimonial home.
(b) Directing First respondent forthwith to releaseto
the applicant the two Form C certificate oftitle to immoveable
property at Ha Tsosane village,and the Land Act Lease in respect
of one residentialsite at Ha Tsosane, Maseru Urban Area.
Directing First respondent to contribute to thecosts
of this application.
(d) Directing respondent to restore to applicant a
sum of M35.000 (Thirty Five Thousand Maloti) now held
in respondent's savings account with the second respondent.
Directing Third respondent to release to theapplicant
all sums of money deposited in anunknown account number in the
Third respondent'sbank by first respondent.
Granting applicant such further and/or
alternativerelief as this Honourable Court may deem fit."
In CIV/APN/116/89 the husband sought and obtained ex
parte an order against the wife and Lesotho Bank in the following
"1. a) The second respondent should not be
ordered to freeze the first respondent's savings and/or current
accounts numbers the applicant does not know, and
which accounts are held by the above named respondent, pending the
of the issues in CIV/APN/109/89 and CIV/APN/111/89
The first respondent shall not be ordered forthwith
to cease withdrawals from the said bankingaccounts.
The first respondent should not be ordered topay
the costs of this application.
2. Prayers 1 (a) and (b) above should operate as
interim relieves with immediate effect."
On the extended return day all the three applications
were argued at the same time. In CIV/APN/109/89 the
to the granting of prayer 1(a) provided
that the words "dealing with" were delected from the final
order. The applicant/
wife agreed to the granting of the final
order without those words.
In CIV/APN/111/89 the parties consented that the order
2. (a) be confirmed. The parties agreed that order 2. (e) be
in the sense that the applicant/husband shall leave the
respondent/wife to operate the accounts on condition that the husband
have access to them.
For convenience I shall refer to the parties as husband
and wife. The material facts in all these applications are not in
The parties were married by civil rites in community
of property in Maseru on the 18th February, 1963. Three children
born of the said marriage and they are presently all majors
though the last one, John is still attending school. The
Mosiako, is married and has his home at Ha Tsosane in
the district of Maseru. The unnumbered residential site on which
has built his house was allocated to his father and he has a
Form C for it. The last two whildren are still living with their
mother on the parties' marital home at Ha Tsosane. The husband has
a lease for the site where the marital house is situated.
The parties have another unnumbered plot at Ha Tsosane
at Naleli where rooms have been built for hire. There is yet
plot at Ha Tsosane where a two-roomed house has
been built. That house is earmarked for their second born son.
It is common cause that the lease and the Form Cs for
the four plots mentioned above are in the custody of the wife at the
It is also common cause that at the moment the husband
is living with a certain woman called Itumeleng Gertrude Mokhothu at
not far from the marital home of the parties. In January,
year the husband purported to enter into a customary law
marriage with the said Ituneleng. He paid Ml,080-00 to the parents
the said Itumeleng as "bohali". In 1978 he acquired a
plot at Naleli Ha Tsosane and during 1987 he built a house there.
Certain improvements were made to the house in 1989. This is
the house in which he is now living with Itumeleng. The
estimates the value of the house to be about M150.000. The husband
is not in a position to deny or to admit that estimate.
common cause that the house was built with funds from the joint
The wife denies that the husband went to live in that
house with Itumeleng through her permission. She also denies that
heavily and flirted with men.
It is common cause that at one time the husband pledged
the matrimonial home as security to Lesotho Bank for a loan or
facilities to the sum of M50,000-00. He did not
inform his wife and he says that he was not underany obligation to
The loan was repaid in 1987 and the husband authorised
the Lesotho Bank to release the lease to his wife.
There is a dispute of fact as to the time the husband
moved out of the matrimonial home and went to live with Itumeleng.
says that it was in 1983 but the husband says that he
started living with her in 1987. He states that from 1983 he
Ituneleng at her place. I am of the opinion that
the dispute cannot affect the outcome of the case in favour of any
party on the
The husband admits that he floated a private company
known as Modise International (PTY)LTD. He denies that he floated
Itumelerig as a director, she was the secretary of the
company and only became a director when other 'directors resigned.
It is also common cause that on the 24th May, 1988 when
the husband was in detention in London he sent a letter and/or power
which authorised the General Manager of Lesotho Bank to
release to his wife the amount of over M150,000-00 from his company's
and to use the same for the benefit of the joint estate (see
Annexure "M.A.M.4" to the founding affidavit in CIV/APN/
The wife deposes that she used the money to build five
big double rooms for hire and paid for their son's air trip to London
attend his father's court cases. She also built a house for
their second son. She deposes that when the money was released
her Lesotho Bank opened an account in her own name in which the money
was deposited. It is the balance in that account which
wants to be restored to him.
At a family meeting held on the 29the April, 1989 the
husband demanded that she must release the money in her account to
with the Form Cs and the lease. She refused to do so.
On the 21st March, 1988 the husband made a will in
which he bequeathed to Itumeleng Mokhothu the residential site at
Naleli ha Tsosane.
He bequeathed the rest of and residence of his
estate, both movable and immovable, to his wife. (See Annexure
to the wife's founding affidavit).
The law was clearly stated by Ramsbottom, J., in Mundy
v. Mundy, 1946 W.L.D. 280 at p. 283 where is said:
"Although pending action, the husband is in
possession of assets, an undivided half of which belongs to. the
wife, and although
on division of the joint estate a divided half
will be awarded to her, until that occurs the husband is lawfully in
the assets and is lawfully entitled to deal with
them in his administration of the joint estate. I do not know how he
restrained from doing that which in law he has the right to
do. If an unlawful dealing with the assets is reasonably
if there is a reasonable apprehension that he will
dispose of the assets so as to defeat his wife's rights, he will be
from doing so, but it follows, I think, that a reasonable
apprehension of unlawful dealing must be shown,"
In Pretorius v. Pretorius and another, 1948 (1) S.A. 250
it was held that before a wife, married in community, can attack the
by her husband of his powers in dealing with the joint
estate, or her share in it, she would at least have to show, viewing
subjectively, that the circumstances rendered it probable
that the husband had her rights in mind when he entered into the
transaction and that he appreciated that it would prejudice
those rights; and, viewing the matter objectively, she would at least
have to show that the transaction was in all the circumstances an
unreasonable one for the husband to enter into.
In Pickles v. Pickles, 1947 (3) S.A. 175 it was held
that a wife married in community of property is entitled to an
her husband where a reasonable apprehension is
shown that pending an action for divorce on the ground of adultery
the husband will
make donations to the woman cited as co-respondent.
Donations from the joint estate by a husband to a woman with whom he
in adultery is vis-a.vis the wife, at least after the
of an action for divorce by her, a wrongful dealing by
him with the joint assets and prima facie amounts to a fraud on the
In the present case the wife has proved that before she
instituted the divorce action under CIV/T/180/89 the husband had been
in adultery with Itumeleng. In 1989 he purported to marry
Itumeleng by Sesotho customary law rites. On the 21st March, 1988
the husband made a will in which he bequeathed one of the plots
belonging to the joint estate. It was submitted on behalf of the
husband that the provisions of the will shall operate only when the
husband dies and that at the moment the plot remains part of
joint estate. It was submitted further that the husband may even
rescind the will before his death. It is correct that
does not operate with immediate effect but the question is whether
the wife's apprehension that the husband is likely to
dispose of the
assets unlawfully, is unfounded or reasonable.It seems to me that
the wife's apprehension is reasonable because the
husband has already
started to make donations to the woman with whom he is living in
adultery. The will may not have immediate effect
but it is a legally
binding document which may be put into effect when its maker dies.
That will affect assets of the joint estate
to a very large extent
because the value of the house on the plot is estimated at M150,000.
The husband has stated that he wants to institute
proceedings to nullify his marriage to his wife on the ground that at
the time they
purported to enter into their marriage the wife was
still validly married to another man. He is presently living in
with Itumeleng. He wants this Court to order that an
amount of M35.000-00 which is in the wife's savings account with
Bank be released
to him. Money changes hands very easily and quickly.
Whatwill stop the husband from disposing of it as soon as it
isrleased to him? His attitude towards the wife is very clear.
Heregards her as not his lawful wife because she cheated him
intomarrying her while she was still lawfully married to another
man.Furthermore the wife has already instituted a divorce action.
. .Her prospects of success seem to be very high because the
husbandhas admitted that he is living in adultery with another
womanalthough he claims that his wife consented to or condoned
I am of the opinion that the assets of the joint estate
should be protected as far as possible from unlawful disposition by
I am not saying that the wife should be given a free
hand to dispose of the assets of the joint estate pendent lite She
be restrained from disposing of those assets which are in
In the result I make the following order:
(a) The respondent/husband is restrained from
disposing, transferring and encumbering in any manner
whatsoever any movable or immovable property wheresoever it may
forming part of the joint estate of the
respondent/husband and the applicant/ wife, pending the finalisation
of an action instituted
by the applicant/wife against the
respondent/husband and Itumeleng Gertrude Mokhothu in the High Court
of Lesotho under CIV/T/180/89.
The applicant/wife is ordered to surrender to
theRegistrar of the High Court of Lesotho for safekeeping
all leases, certificates of title orletters of allocation in
respect of the immovableproperty forming part of the joint
estate pendingthe finalisation of the abovementioned
The applicant/ wife shall fortwith release to
therespondent/husband all such personal belongings andclothing
as are required by the respondent/husbandwhich are in the
parties matrimonial home.
Lesotho Bank is ordered to freeze the savings and/or
current accounts of the applicant/wife('Mamosiako Athalia
Modise) which accounts numbersthe respondent/husband (Phillemon
Makalake Modise)does not know, which are held by
applicant/wife,pending the finalisation of CIV/T/180/89.
The applicant/wife is ordered to cease
forthwithwithdrawals from the said banking accounts.
The applicant/wife is allowed to operate the
accountsshe has with the Lesotho Building Finance
Corporationbut the respondent/husband shall have access to them.
The applicant/wife shall continue to collect
rentalsfor the couples immovable property and to use themoney
for the benefit of the joint estate.
(h) Each party shall bear its own costs in all the
J.L. KHEOLA JUDGE
16th June, 1989.
For the Applicant - Mr. M.T. Matsau For the Respondent
- Mr. H. Phoofolo
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