CIV/424/85

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

STANDARD
CHARTERED BANK AFRICA PLC Plaintiff

v

FRANCIS
MALEFETSANE LICHABA Defendant

RULING

Delivered
by the Hon. Sir Peter Allen on the 2nd day of June, 1987

This is a
claim for monies lent and advanced by the plaintiff bank to the
defendant's wife. Apparently both of them were working
for the bank,
the defendant at the Maseru Branch and his wife, Mrs. Lichaba, at
Mohale's Hoek Branch, where she was the Branch
Manager.

In
September 1983, the bank advanced to Mrs Lichaba a loan to purchase a
motor car. A car loan account was opened in her name in
addition to
her personal current account. By May 1985 her repayments of the loan
at M.335.80 per month had stopped and the account
was in overdraft.
In July 1984 she had been dismissed from the Bank's employment and
this action was filed in order to recover
M.10,722.13 due on the car
loan account and M.186.60 due on her current account.

In a
letter dated 16 June 1985 addressed to Mrs Lichaba

2

the
Bank's attorneys informed her of this amount due ( a total of
M.10,908.73) and that they had been instructed 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 accounts
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 was
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 consented
to the car loan. In
document A.8, a letter dated 18 June 1984, from the defendant to the
Chief Manager of the Bank, the defendant
admitted that he was aware
of the loan. He wrote, "I am aware that a loan was granted to my
wife," and added "since
my wife is married in community of
property, the said loan bought an asset which accrued into the joint
estate." Further on
he asserted 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 the time
of the
accident when the vehicle was written off.

3

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 aforesaid
wife
at her special instance and request and with the Defendant's
consent."

Mr. Pheko
submitted that it was thus a foundation of the plaintiff's claim that
the loan and overdraft were granted to her with
the consent of the
defendant at that time, and that this was not proved, only that he
later consented to it. Mr. Pheko therefore
submitted that there was
insufficient prima facie evidence to support the allegation and that
there was consequently no case for
the defendant 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 in fact

amounted to consent. There is no doubt that the defendant did ratify
the contract and, as I understand it, if a husband ratifies
such a
contract, it is validated with retroactive effect, and the husband
must carry out the obligations which his wife undertook.

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 with authorities
as a result of
properly preparing a case for trial. I do not propose to go searching
for them when not one is cited.

4

As far as
I am concerned the defendant's consent to the loan was pleaded.
Ratification is merely a later consent which then becomes
retroactive
in effect. That means it is also a form of consent. I consider that
it would be an unacceptable quibble to hold that
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 could
properly be
considered to be a household necessity. It is a very useful asset
but, never­theless, a luxury not a necessity.

P. A. P.
J. ALLEN

JUDGE

2nd June,
1987

For the
Plaintiff : Mr. Edeling

For the
Defendant : Mr. Pheko