HIGH COURT OF LESOTHO
matter between :
BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 22nd FEBRUARY 2005,
interdict pendele lite - requirements thereof.
OF THE CASE
applicant sued the 1st respondent for the return of the unspecified
property allegedly removed from the matrimonial home by
respondent She further sought an order restraining the 1st respondent
from disposing off the said property.
sought an order restraining 2nd respondent from paying over the 1st
respondent his terminal benefits - because she had
action against him for maintenance.
where the wife fails to make out the case for maintenance and there
are no prospects that she will succeed in her suit for
the court is not entitled to grant an interdict pendete lite for
payment to her husband of his terminal benefits on
the grounds that
there is a pending or intended case against him for maintenance.
further; that the court cannot order the return of the [unspecified,
undescribed, unitemised] - unknown property to the applicant.
BACKGROUND OF THE CASE
applicant approached this court by way of an ex-parte application.
She sought and obtained a rule nisi in the following terms.
HEREBY ORDERED THAT
rule nisi is hereby issued returnable on the 12th day of August
calling upon the respondents to show cause, if any, why;
with the rules of service of this Honourable Court on the grounds
2nd Respondent shall not be interdicted from paying over the
terminal benefits of the 1st Respondent pending the finalization
1st Respondent shall not be ordered to return the parties
matrimonial property and not disposing off same pending separation
proceedings between Applicant and Respondent.
1st Respondent shall not be ordered to pay costs of this
It is the
confirmation of this interim court order which is opposed by the 1st
Respondent. The other Respondents have filed no papers.
abide by the decision of this court in favour of either of the
contesting parties in this matter are a husband and wife. They are
married in community of property. Their marriage still subsists.
the time the dispute arose between these two parties, the husband had
just lost his job at the I.P.A. when its existence was
According to the applicant the 1st Respondent was due to receive his
terminal benefits from I.P.A whose business was
being wound up by the
LAW OFFICE - the 2nd Respondent herein.
Respondent fails to maintain her and their children. The parties
lived at the rented accommodation here at MASERU where
Respondent failed to pay the rentals as a result the landlord
attached the parties' matrimonial property. The children
were or are
at school at ZASTRON. The 1st Respondent failed to pay their fees and
rentals at place where they resided. The 1st
Respondent sold without
the Applicant's knowledge their matrimonial home. Therefore the
applicant and the children are homeless.
Respondent has removed some matrimonial property from the place where
the parties lived. The applicant fears that the 1st
dispose off the same.
respondent denied each and every allegation made by the applicant
against him. 1st respondent claims that he deposits money
account held at FIRST NATIONAL BANK LADYBRAND, REPUBLIC OF SOUTH
AFRICA. Within a few minutes or hours the money is withdrawn
applicant at the ATM of FIRST NATIONAL BANK at ZASTRON. At one time
when I.P.A. made the last salary payment to the 1st
applicant was present here at MASERU and she received from the 1st
respondent an amount of four hundred Maloti
(M400.00). This was done
in the presence of the Chief Legal Aid Counsel who was acting on
behalf of the applicant then.
the 1st respondent failed to maintain the applicant and their
the case for an interdict been made out?
and wife are obliged in law to support each other...........in other
words, they owe a duly of support to each other. The
wife has a right
of support by her husband. So does the husband.
of support between the husband and wife is always a reciprocal one.
The one with the means supports the one who has a need
Both parents have a duty to support their children. The bank
statements - Annexure MT 1 show without a doubt that each
the 1st respondent deposited some money into his bank account at
First National Bank- LADBYBRAND branch, some money was
ATM at First National Bank ZASTRON branch. According to the 1st
respondent that money was withdrawn by his wife
- this applicant
herein presumably by arrangement between the parties. She does not
deny that she withdraw the cash on those occasions
at ATM of First
National Bank at ZASTRON as shown in the statements. In reply to that
allegation that she withdrew money regularly
immediately after the
1st respondent has deposited it, she claims to have no authority to
operate the 1st respondent's bank account.
This cannot be true
because in fact the cash has been withdrawn within such a short space
of time that it was impossible for the
1st respondent to deposit it
personally at First National Bank - LADYBRAND and withdraw it at
ZASTRON at the same time. This applicant
does not tell the truth.
to suggest that the sum of four hundred maloti (M400) was given to
her counsel by the 1st respondent, vaguely implying
it was not given
to her. She proceeds to triviliase the amount as paltry for her
maintenance with their six children including
her transport to
ZASTRON. Applicant appears to have no hesitation to avoid the truth.
She does not stop for a minute to think.
She begrudges the fact that
the 1st respondent retained for himself the sum of eight hundred
maloti (M800). She does not say how
much she regards as adequate
maintenance for herself and the children. It cannot therefore be said
that the 1st respondent failed
to maintain the applicant and the
children. It has now emerged that applicant is not telling the whole
truth when she says the
1st respondent does not support her and the
applicant is confronted with the truth that during the period in
question she in fact received specified amounts as shown
in the 1st
respondent's affidavit and supporting documents, she truns around and
without specifying how much she wanted, claims
she was given pretty
regard to the question of the property, the applicant does not say
what items of property does she fear the 1st respondent
is likely to
dispose off. There is some confusion. She first of all claimed that
the property was attached by the landlord for
none payment of the
the 1st respondent. She again claims that the 1st respondent removed
that property to the place unknown to her. She does
not specify the
type of property so removed. The 1st respondent denies removing any
property. In those a circumstances, the court
cannot make a
restraining order, against the removal when the 1st respondent denies
removing or intending to remove any property.
The applicant herself
does not know the property which has been removed and therefore
likely to be disposed off.
interdict to succeed, there are certain requirements which the
applicant must satisfy. Firstly, she must establish her clear
Secondly, she must establish that an injury has been committed or
likely to be committed; thirdly, she must show this court
is no other way or remedy available to her except to proceed in the
manner she has chosen. SETLOGELO V SETLOGELO 1914
applicant seeks to stop payment of the terminal benefits to the 1st
respondent on the ground that she has issued summons for
maintenance and their children against the 1st respondent. If the
terminal benefits are paid over to the 1st respondent, her
maintenance will be an exercise in futility. During the time the 1st
respondent was employed, he maintained the applicant
children. It is not true that he failed to support the applicant as
the bank statements proved that she withdrew money
at ZASTRON. She
deny withdrawals she made. She cannot therefore be entitled to an
order interdicting the 2nd respondent from paying over
benefits to the 1st respondent. This court can only be entitled to
grand interdict pendente lite if there are probabilities
in the pending or intended action. [ ct JOHANNESBURG CONSOLIDATED
INVESTMENT CO. LTD V MITCHMOR INVESTMENTS (Pty) LTD
and ANOTHER 1971
(2) SA 297 (W)]- Where the wife fails to make out the probable case
for maintenance and there are no prospects
that she will succeed in
her pending suit for maintenance, the court cannot grant her an
interdict pendente lite against the payment
to her husband of his
terminal benefits on the grounds that there is a pending or intended
action against him for maintenance.
The loss or inconvenience caused
by granting this interdict is of little or no significance to this
applicant while the 1st respondent
will suffer a greater prejudice
when no case was made against him in respect of maintenance or
removal of the matrimonial property.
At the time the parties' legal
representatives addressed this court, they indicated that the actions
of separation and maintenance
are not being pursuit An application
for an interdict pending these actions must therefore fail.
NISI IS THEREFORE DISCHARGED WITH COSTS.
applicant : Ms. Ramafole
respondents : Mr. Fosa
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law