Leteba v Leteba (CIV/APN/170/2004 CIV/APN/88/2004)

Case No: 
Media Neutral Citation: 
[2004] LSHC 122
Judgment Date: 
18 October, 2004


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


In the matter between:-





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.

  1. 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


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


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.


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.


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."


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.


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


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."


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


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


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


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."


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,


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.



For Applicant: Ms Mohasi

For Respondent: Mr Thoahlane