CIV/APN/363/02
IN THE HIGH COURT OF LESOTHO
In the matter between :
IDA TYHALI
AND
PATRICK M. TYHALI
JUDGMENT
DELIVERED BY THE HONOURABLE MRS JUSTICE KJ. GUNI ON THE 22nd FEBRUARY 2005,
An interdict pendele lite - requirements thereof.
SUMMARY OF THE CASE
The applicant sued the 1st respondent for the return of the unspecified property allegedly removed from the matrimonial home by the 1st respondent She further sought an order restraining the 1st respondent from disposing off the said property.
Applicant sought an order restraining 2nd respondent from paying over the 1st respondent his terminal benefits - because she had instituted an action against him for maintenance.
Held: where the wife fails to make out the case for maintenance and there are no prospects that she will succeed in her suit for maintenance, 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.
Held further; that the court cannot order the return of the [unspecified, undescribed, unitemised] - unknown property to the applicant.
HISTORICAL BACKGROUND OF THE CASE
The applicant approached this court by way of an ex-parte application. She sought and obtained a rule nisi in the following terms.
IT IS HEREBY ORDERED THAT
A rule nisi is hereby issued returnable on the 12th day of August calling upon the respondents to show cause, if any, why;
Dispensing with the rules of service of this Honourable Court on the grounds of urgency.
The 2nd Respondent shall not be interdicted from paying over the terminal benefits of the 1st Respondent pending the finalization of these proceedings.
The 1st Respondent shall not be ordered to return the parties matrimonial property and not disposing off same pending separation
proceedings between Applicant and Respondent.
The 1st Respondent shall not be ordered to pay costs of this application.
It is the confirmation of this interim court order which is opposed by the 1st Respondent. The other Respondents have filed no papers.
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They will abide by the decision of this court in favour of either of the contesting parties.
FACTS
The contesting parties in this matter are a husband and wife. They are married in community of property. Their marriage still subsists. At 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 terminated. 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.
APPLICANTS CASE
The 1st Respondent fails to maintain her and their children. The parties lived at the rented accommodation here at MASERU where the 1st 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.
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The 1st Respondent has removed some matrimonial property from the place where the parties lived. The applicant fears that the 1st respondent may dispose off the same.
1st RESPONDENT'S CASE
The 1st respondent denied each and every allegation made by the applicant against him. 1st respondent claims that he deposits money into his account held at FIRST NATIONAL BANK LADYBRAND, REPUBLIC OF SOUTH AFRICA. Within a few minutes or hours the money is withdrawn by the 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 respondent, the 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.
ISSUES
Has the 1st respondent failed to maintain the applicant and their children?
Has the case for an interdict been made out?
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LAW
Husband 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.
The duty of support between the husband and wife is always a reciprocal one. The one with the means supports the one who has a need of support. Both parents have a duty to support their children. The bank statements - Annexure MT 1 show without a doubt that each time when the 1st respondent deposited some money into his bank account at First National Bank- LADBYBRAND branch, some money was withdrawn from 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.
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She seems 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 children.
When 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 small amounts.
With 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
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rent by 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.
For an interdict to succeed, there are certain requirements which the applicant must satisfy. Firstly, she must establish her clear right. Secondly, she must establish that an injury has been committed or likely to be committed; thirdly, she must show this court that there is no other way or remedy available to her except to proceed in the manner she has chosen. SETLOGELO V SETLOGELO 1914 AD 221.
The applicant seeks to stop payment of the terminal benefits to the 1st respondent on the ground that she has issued summons for her maintenance and their children against the 1st respondent. If the terminal benefits are paid over to the 1st respondent, her action for maintenance will be an exercise in futility. During the time the 1st respondent was employed, he maintained the applicant and the children. It is not true that he failed to support the applicant as the bank statements proved that she withdrew money at ZASTRON. She
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did not deny withdrawals she made. She cannot therefore be entitled to an order interdicting the 2nd respondent from paying over the terminal benefits to the 1st respondent. This court can only be entitled to grand interdict pendente lite if there are probabilities of success 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.
THE RULE NISI IS THEREFORE DISCHARGED WITH COSTS.
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K. J. GUNI
JUDGE
For applicant : Ms. Ramafole
For respondents : Mr. Fosa
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