CIV/APN/170/2004
CIV/APN/88/2004

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

ADELICE
PELAETSO LETEBA APPLICANT

And

JUSTICE
LEJANG LETEBA RESPONDENT

JUDGMENT

Delivered
by the Honourable Ms Acting Justice N. Majara on the 18th October
2004

Applicant
approached this court in CIV/APN/88/04 and CIV/APN/170/04
respectively on an urgent basis for orders in the following
terms:

1. That
   the rales on modes and periods of service be dispensed with on
   grounds of urgency.

   
   

2. That
   a rule nisi be issued ordering respondent to show cause if any why:-

   
   

(i) Respondent shall not be interdicted and restrained from
assaulting, harassing or in any manner abusing applicant.

(ii) Respondent shall not be interdicted from interfering with
applicant's peaceful occupation of the matrimonial home and freedom

of movement, pending the finalization of judicial separation

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proceedings to be instituted within 30 days of the granting of the
application.

(iii) Respondent shall not be ordered to pay maintenance for
applicant and children for day to day needs in the amount of
M2,500.00
per month, pending finalization of judicial separation
proceedings

(iv) Contribution towards applicant's legal costs in the amount of
M4, 000. 00.

(v) Respondent be ordered to release to applicant her personal
clothing and apparel.

(vi) Respondent be interdicted from disposing of, selling or
alienating the matrimonial property in his possession pending the

finalization of CIV/T/175/2004.

(vii)
Further and/or alternative relief, (viii) Costs of suit.

On the
13th September 2004 Ms Mohasi, counsel for applicant and Mr
Thoahlane, counsel for respondent appeared before me and the
matter
was duly argued. Before both counsel put forward their case, the
court was informed that there had been a consolidation
of both
CIV/APN/88/04 and CIV/APN/170/04 respectively and that the matters
would both be dealt with simultaneously.

In order
to put the issues in perspective, I will give a brief summary with
regard to the case(s) at hand. Aside from the

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two
applications herein there is another matter, CIV/T/175/2004 wherein
Applicant (plaintiff therein) instituted an action against
respondent
(defendant therein) for an order of a judicial separation, custody of
the minor children, maintenance of the minor children
at the rate of
M2, 500.00 per month with school fees being paid separately, division
of the joint estate and costs of suit. The
civil trial is sub judice.

However,
applicant has since abandoned one of the prayers in CIV/APN/88/04,
viz, that respondent be interdicted from interfering
with her
peaceful occupation of the matrimonial home and freedom of movement
due to the fact that applicant has since left the
matrimonial home.
On the hearing date, before counsel for applicant moved the two
applications, counsel for respondent raised some
points in limine.

The first
point was that applicant in casu ought not to have approached the
court by way of application proceedings. His contention
was that
applicant should have foreseen that there was going to be a serious
dispute of fact with respect to CIV/APN/170/04. The
basis of his
contention was that respondent was denying being in possession of
applicant's clothing and apparel. Counsel for respondent
contended
further that apart from this issue, almost every averment of
applicant with regard to all the prayers had been disputed.

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Mr
Thoahlane also raised the point of lis pendens wherein he argued that
applicant prayed for an order for maintenance in the application
at
hand when she knew very well that the same issue was already pending
in CIV/T/175/04. Counsel for respondent's contention was
that for
this reason, the court should dismiss that particular prayer at this
stage.

The third
point in limine was in relation to applicant's alleged new facts in
her replying affidavit. Mr Thoahlane's contention
was that at
paragraph 7 therein, applicant brought up a new issue that
'respondent tends to forget that the children have other
needs such
as food clothing and so on' which averment she had not made in her
founding affidavit.

In
reaction to the points raised by respondent, Ms Mohasi argued that
the alleged dispute of fact is not a genuine one because as
per her
contention, respondent is in the habit of making bare denials to all
the averments raised by applicant in order to frustrate
her case. She
submitted that respondent was not denying some of the allegations
made by applicant such as the fact that respondent
admitted to having
taken both applicant and the children to the Kofi Anan Road on the
date in question. She argued that respondent's
explanation with
regard to why he took his family there was not true.

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On the
question of lis pendens, Ms Mohasi did not dispute that the question
of maintenance has been raised in the trial for a judicial
separation
as one of applicant's prayers. However, her argument was that the
civil application before the court was instituted
before the civil
trial and as a result, respondent could not be allowed to
successfully raise the issue of lis pendens.

With
regard to the issue of applicant being accused of having alleged new
facts at the replying stage, Ms Mohasi contended that
applicant was
responding to respondent's own averments in his answering affidavit
and that therefore she did not raise new facts.

Having
heard arguments from both counsel, I decided to address the question
of lis pendens first. When dealing with the plea of
lis pendens, it
has been stated as follows in Isaac's Beck's Theory and Principles of
Pleadings in Civil Actions, 5th Edition p
159;

"The validity or otherwise of this dilatory plea depends on
whether the same suit is pending elsewhere. It must be pending

elsewhere between the same parties concerning the same thing, and
founded on the same cause of action. The demand made and the
point at
issue must be the same in the pending suit as in the suit which it is
sought to stay. And of course the court in which
the suit is pending
must have jurisdiction to entertain it."

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It is
further stated at p160:

"As the plea need not be taken initio litis it is not necessary
that the matter should be pending in another court at the
outset of
the proceedings; (my underlining) it will be sufficient if is has
become pending at any time before joinder of issues
or even before
Judgment;..."

My
understanding of the above statement is that, for a plea of lis
pendes to be successful, the pending matter need not necessarily
have
preceded the one at hand. It is sufficient for respondent to show
that the same matter is indeed pending before another court.
This
means that by the same analogy, although the application at hand
preceded the pending trial, respondent has rightfully raised
the plea
with regard to the issue of maintenance.

However,
I believe that it is imperative to point out from the onset that
experience has shown that matrimonial issues are very
peculiar in
nature and therefore require that utmost care be exercised in their
determination. This means that it is in the interests
of real and
substantial justice that they need not necessarily be dealt with like
ordinary cases, more especially where the issues
to be determined
involve the interests of the minor children. This being the case, the
court is at liberty to use its discretion
in ensuring that a balance
is struck between protecting the interests of the minor children and
ensuring that both litigants are
afforded a fair and expeditious
hearing.

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In light
of this it would not be unheard of for the court to rule that in
casu, the judicial separation trial notwithstanding, the
issue of
maintenance could be more conveniently dealt with by this court.
However, I find the question of maintenance in this particular
case
before the court a complex one. This is because of the following
factors; though applicant is claiming maintenance to the
tune of
M2,500. 00 she has however informed the court that respondent does
provide for certain amenities except for the fact that
as she claims,
the money is not enough; secondly, applicant has not adequately
informed the court as to how much respondent makes
per month and on
what basis she has arrived at that particular amount so that I could
ably determine the amount of maintenance
in the event that I find in
her favour. In addition, respondent is disputing the fact that he is
not adequately maintaining applicant
and the children. His contention
is that he is the sole breadwinner and he is the only one who
provides for his family.

It is on
the basis of these factors that I felt that deciding the issue of
maintenance against this background on affidavit would
not be an easy
feat for this court. It is on this basis that I find that this
particular issue will be properly decided fairly
and equitably in the
pending trial where the court will be able to arrive at a proper
decision having had the benefit of assessing
the

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litigants'
demeanour and credibility after hearing their viva voce evidence
which would help in the determination of the factors
that I have
mentioned above, on a balance of probabilities. This position was
also stated in the case of Oblowitz v Oblowitz 1953
(4) SA 426.

On the
issue of the existence of a dispute of fact, the general rule is that
where there is likely to be a dispute on the facts,
proceedings by
way of application should not be instituted except in those matters
where application procedure is specifically
laid down by law. See
Isaac's Supra.

In our
own rules of court, it is provided under Section 8 (14) of the High
Court Rules that;

"If in the opinion of the court the application cannot be
properly decided on affidavit the court may dismiss the application

or may make such order as to it seems appropriate with a view to
ensuring a just and expeditious decision. In particular but without

limiting its discretion, the court may direct that oral evidence be
heard on specified issues with a view to resolving any dispute
of
fact and to that end may order any deponent to appear personally or
grant leave for him or any other person to be subpoenaed
to appear to
be examined and cross-examined as a witness, or it may order that the
matter be converted into a trial with appropriate
directions as to
pleadings or definition of issues, or otherwise as the court may deem
fit."

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In one of
the leading cases on this issue viz; Room Hire Co v Jeppe Street
Mansions 1949 (3) SA 1155 at p 1162

Dowling J
(as he then was) proceeded to say;

"It is obvious that a claimant who elects to proceed by motion
runs the risk that a dispute of fact may be shown to exist.
In that
event.... the court has discretion as to the future course of the
proceedings..."

However,
because of the fact that the authorities were fully aware that
without any form of qualification, some respondents might
take unfair
advantage of and/or abuse this legal position by deliberately
creating a dispute even where none really exists, this
general rule
has been qualified in that it has also been stated that even where
there is a dispute of fact, motion proceedings
may still be competent
where such a dispute, is not a real, genuine or material one. In the
Room Hire Co case (supra), Murray A.J.
P. (as he then was) had to
this to say at p 1163;

"... a respondent is not entitled to defeat the applicant merely
by bare denials such as might be employed in pleadings in
trial
actions.

It is on
the basis of this argument that judges are given a wide discretion
with regard to what course of action to take the

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minute a
respondent contends that a dispute of fact exists on the basis of
which applicant's claim should be dismissed.

In casu,
with regard to the prayer on assault and harassment, in his answering
affidavit respondent did not deny that he assaulted
applicant. He
proceeded to give justification that he was only chastising her
(whatever that means) because she was guilty of adultery.
He further
did not deny having taken her and the children to the Kofi Anan Road
at night where applicant alleged in her founding
affidavit that he
threatened to kill her and the children and then kill himself. He
however proceeded to explain that he only took
them there not to
harass and/or threaten her but in order to discuss the issue of
applicant's adultery.

On the
prayer that he be interdicted from selling the property of the joint
estate, again respondent admitted to having sold some
of the taxis
but again proceeded to give a justification as to why he acted the
way he did.

In the
court's opinion, there is no real or genuine dispute of fact with
regard to the above mentioned issues i.e. of assault and
harassment
of applicant by respondent and that of disposal by respondent of some
of the property of the joint estate that would
warrant the court to
dismiss applicant's claim. I therefore find that the two issues can
be properly

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determined
on affidavit without subjecting the litigants to incurring further
costs than they have already incurred in the three
matters before the
court.

With
regard to applicant's prayer that respondent should be ordered to
release her personal clothing and apparel, respondent denied
in his
answering affidavit that he is in possession of same. He alleged that
applicant packed her suitcase and took it with her
on the day she
left their matrimonial home. There is also in the courts file
annexures wherein both parties' attorneys communicated
by letters
wherein applicant's counsel was asking for intervention from
respondent's counsel, that he should persuade respondent
to release
applicant's clothing. Throughout the whole correspondence respondent
has always denied being in possession of applicant's
possessions.
This in my opinion is the only matter that constitutes a dispute of
fact.

It is
therefore only with regard to this issue that the court finds the
existence of a real dispute of fact. This does not mean
that the
court is making a determination at this stage on who could be telling
the truth on a balance of probabilities. I therefore
direct that both
applicant and respondent should lead viva voce evidence and address
me specifically on this issue and this issue
alone as is provided for
under Rule 8 (14) as cited above and also on the basis of the other
stated authorities. I further direct
that respondent's younger
brother

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be
subpoenaed so that he can help shed some light on the issue. This is
because applicant has stated in her papers that it is to
his house
that she went upon leaving the matrimonial home.

On the
question of applicant having alleged new facts in her replying
papers, it may be worthy to start out by revisiting what applicant

averred in her papers. In her founding affidavit at paragraph 6,
applicant averred;

"When he engages in these adulterous associations, he has a
tendency of neglecting the family by providing very inadequate
(my
underlining) maintenance, although he is capable of providing
adequate maintenance."

As can be
seen from the above, applicant did not aver that respondent was not
maintaining. She claimed that he was not doing so
adequately. In his
answering affidavit, respondent reacted to this above averment as
follows;

"...What is clear is that deponent herself is not satisfied with
the amount of maintenance. It is not correct to say I am
not
maintaining."

And in
her replying affidavit applicant stated;

"It is true that he pays school fees for the children, but
Respondent tends to forget that the children have other needs like

food, clothing and so on."

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In
addressing this issue I found it worthwhile to check the meaning
and/or definition of the term to maintain. In the Concise Oxford

Dictionary the word to maintain, has been defined as 'provide with
necessities for life and existence.' It is therefore my humble

opinion that the term is an all encompassing one. My own
understanding is that maintenance actually entails providing with
food,
clothing, medical expenses, education, shelter, toiletries etc.

At any
rate, this court has already ruled that the issue of maintenance will
not be dealt with in casu but in the pending trial.
This means that
even if respondent's contention could be accepted as correct it has
ceased to be material at this stage since
this court will not be
dealing with the issue of maintenance for reasons shown above.

For the
above reasons, I find as follows; of all the points raised in limine,
the only issue that this court is not going to determine
in casu is
that of maintenance. The other issues will therefore be dealt with on
the affidavits filed before the court,

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with the
exception of the issue of the release of applicant's clothing by
respondent in relation to which the litigants are ordered
to lead
viva voce evidence.

N. MAJARA

ACTING
JUDGE

For
Applicant: Ms Mohasi

For
Respondent: Mr Thoahlane

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