HIGH COURT OF LESOTHO
matter between :
'MOTA 1st RESPONDENT
BUREAU OF AFRICA 2nd RESPONDENT
Delivered by Hon. Justice M.L. Lehohla on the 3rd day of September,
last week this court heard arguments by counsel for respective
parties in the above matter. The thrust of the arguments was centred
between the applicant's counsel and counsel for the first respondent.
Mr. Malebanye for 2nd respondent undertook to abide the Judgement of
notice of motion moved on 25th September 2000 prayed for a rule nisi
to issue returnable on the date and time to be determined by this
court calling upon the Respondents to show cause why
2nd Respondent shall not be restrained from releasing to the first
Respondent any benefits accruing from the death of the late Thabo
applicant shall not be declared the sole beneficiary of the late
Thabo Motokoa, in terms of the contract between second Respondent
1st respondent shall not be restrained from receiving any benefits
accruing from the death of the late Thabo Motokoa;
rules as to forms and notice shall not be dispensed with on account
respondents shall not be ordered to pay costs hereof;
applicant shall not be granted further and/or alternative relief;
prayer l(a) and(d) shall operate with immediate effect as an
interim order pending finalization hereof.
affidavit of Motlatsi Motokoa has been attached to the notice of
founding affidavit Motlatsi Motokoa avers that he is the father of
the deceased Thabo Motokoa who at the time of his death was currently
employed by Anglo Gold Vaal River surviving under the name Vaal Reefs
Mining Company Limited. The deceased died on 2nd May, 1999.
deponent further avers that the deceased, upon being employed, signed
a contract with his employer executable through the office of the
Labour Commissioner. The Contract was signed on 27th May 1998. A copy
of the contract is annexed marked "B".
annexure reflects the applicant as the beneficiary in respect of
Insurance benefits accruing in terms of the contract in the event of
Thabo's death. The 2nd respondent was thus contractually bound to
transmit benefits to the applicant upon Thabo's death.
applicant has not concealed that prior to the contract marked
annexure " B", Thabo the deceased had appointed the 1st
respondent as the beneficiary who it is alleged had been his girl
friend with whom the deceased had been living together for sometime.
To the extent that the applicant has not concealed that the deceased
had previously appointed the 1st respondent as the beneficiary, his
bona fides are above board.
accordingly avers that the deceased cancelled the contract that had
initially been intended to benefit the 1st respondent and in its
place created annexure "B" which was to benefit the
applicant instead. Thus the applicant asserts that he alone is the
lawful beneficiary to the deceased's death benefits.
applicant complains in paragraph 10 though now this complaint should
be blunted by the attitude subsequently adopted by the 2nd
respondent's counsel who undertook to abide the decision of the
court. Nonetheless the applicant's complaint was that the 2nd
respondent's officers acting within the scope of their official duty
with 2nd respondent unlawfully and wrongfully refused to release the
said funds to him. It is said that they alleged that the 1st
respondent is the deceased's wife and beneficiary and that the
applicant is not entitled to the said funds because he is not the
deceased's wife. The complaint further stated that the officers of
the 2nd respondent claimed further that the benefits are to be shared
between 1st respondent and the applicant. The applicant accordingly
points out that they have no right to do such a thing.
applicant further avers that the 1st respondent was never married to
the deceased. He nonetheless argues alternatively that, even if she
was so married that didn't debar the deceased from appointing a
person of his choice as a beneficiary under the contract.
applicant has thus approached this Court labouring under grave
apprehension that the 2nd respondent would in the circumstances
unlawfully and illicitly release the said funds to the 1st respondent
at any time and in the face of
directive made manifest by the deceased during his life-time. He
points out that should this be the case he would suffer irreparable
harm as applicant, inasmuch as the 1st respondent is a person of
straw. He rams this point home by indicating that he would not be
afforded substantial relief at a hearing in due course.
applicant thus finally avers that the case he has moved before court
is a matter of extreme urgency and that he has no other suitable
remedy in the circumstances.
Molapo camping on the trail of the 1st respondent argued that there
is no urgency in this matter. But I have come to the conclusion that
reading from applicant's affidavit a clear case for urgency has been
made out. He relied for this proposition on Commander L.D.F. vs M.
Matela COA (CIV) No 3 of 1999. It however appears to me that the
above authority has been read out of context in the light of the fact
that the proper and practical approach should be if the affidavit
discloses sufficient facts from which it can be concluded that the
case cries out for urgent relief as was the case in Tseliso Makhakhe
& ors vs Qhobela Molapo and ors CIV/APN/410/99 by Monaphathi J.
and confirmed on Appeal either notwithstanding or after Commander LDF
above, that should be enough.
respondent avers that she was married to the applicant's son and was
given the name 'Marorisang Motokoa as a result of her marriage to the
that the applicant is not entitled to the remedy sought. She denies
that Thabo executed Annexure B. She avers that the form which was
behalf of Thabo on 27th May 1988 did not have some of the
hand-writings on it such as "Motlatsi Father Divorce - 07/01/99
- R4000.00 to follow and BH 683922".
annexed what she wishes to be regarded as genuine copies of the
contract dated 14th July 1997 and 27th May 1998. Both are marked "M2"
collectively. She prays that Annexure "B" be rejected as a
fraudulent document and therefore a nullity. She points out that "M2"
collectively reflects her as the wife of the deceased Thabo.
a strong undercurrent of belief in the 1st respondent's affidavit
that because she is the wife of the deceased Thabo she is therefore
the one who is entitled to the death benefit accruing from the
contract the deceased concluded with his employer. Indeed Mr. Molapo
buttressed this somewhat mistaken belief. Mistaken in the sense that
this is not always true in all occasions.
highest authority that should be relied on to disabuse all parties in
similar circumstances is none other than C of A (CIV) No 8 of 1986
RAMAHATA vs RAMAHATA (unreported) at pp 4 and 5 where Schutz P, as he
then was said:
'This case is a simple, one. The appellant has established a
stipulatio alteri (contract for the benefit of a third party) between
the son and the Insurance Company : see e.g. Croce vs Croce 1940 TPD
251. The institution of stipulatio alteri by virtue of being part of
the Roman Dutch Law, also forms part of the law of Lesotho. The
contract is to the effect that she is entitled to accept the benefit
of this contract,
and the evidence is that she has in fact done so. Her rights
therefore flow from contract and the M6000 has nothing to do with the
deceased estate. For these reasons the appeal succeeds".
italicised the words she and Her appearing in the above quotation to
call to attention that the successful party in the Ramahata case was
the deceased's concubine for whose benefit a stipulatio alteri had
been created by the deceased. Thus because she was nominated in that
contract the deceased's own wife and children stood to lose.
Molapo sought to rely on the Employment Bureau of Africa Limited
constituting regulations adopted by Mineworkers in South Africa from
1st July 1997; to advance a sentimental view that his client and her
children should not be made to suffer by preference of the applicant
of the matter is that the Roman Dutch Law principle on which the
stipulatio alteri is based is part of the Law of Lesotho and cannot
be shifted aside by regulations. The Employment Bureau of Africa
Limited cannot legislate for the Kingdom of Lesotho. The law as set
out in Ramahata above is trite and has been followed ever since. See
Valentina Kaphe vs TEBA & Anor 1991-2 LLR & LLB pg 16. See
also CIV/APN/152/90 Rakoto vs KATIBA & TEBA (unreported) at p 6
where it is stated:
"...........where an employee working for a company such as the
second respondent chooses who should benefit in the event of his
death;...........such a person becomes the beneficiary by virtue of
the stipulation and nothing else; and if there is satisfaction as to
the identity of such a person it doesn't matter what the name is and
what the relationship she has with the deceased".
court cannot therefore deliberately overlook the trite authority on
the issue in favour of regulations which are in conflict with the
sound precepts of that authority. Furthermore evidence supplied by
the custodians of the records of the 2nd respondent shows that the
deceased appointed the applicant as his beneficiary finally. The
applicant did not seek to hide that the 1st respondent had previously
been so appointed. But what is clear is that as he was entitled to,
the deceased decided to change his mind in favour of the applicant.
It is one
of the basic fundamentals of the Law of Contract preserved by the
Common Law that men are free and at liberty to enter into contracts
without any hamstrings. It would indeed go against the grain if in
the same society some class of people are prevented from achieving
their goals in contracts while others are not. That would be flawed
as discriminatory and therefore unconstitutional.
Mr. Phafane's submission that the promulgator of the regulations
relied on by 1st respondent cannot change the law of this Kingdom.
The regulations cannot be allowed to affect what a mature man wants
to do under a contract or who he wants to benefit therefrom. Suffice
it to say the contract signed by the deceased
and takes no account of the regulations.
the court is not unmindful of the fact that the man who made the
regulations is not a party to this contract thus they cannot affect
the stipulatio alteri appearing therein.
court's attention has been drawn to the fact that an extra set of
papers in the shape of what is termed supplementary affidavit have
been filed on behalf of the 1st respondent as late as 16th August,
2001 without even the courtesy of asking for leave of Court. That is
unacceptable. Those papers are not to be treated as part of
proceedings in this matter.
court is not oblivious of the words of Ackerman J.A in Strong Thabo
Makenete vs Major General Lekhanya and ors 1991-92 LLR & LB p.
126 at 127 that "Rules of court are not unimportant and cannot
just be disregarded at will ...." with the hope that
"non-compliance will simply be overlooked or condonation granted
as a matter of course or right...".
respondent having challenged the 2nd respondent as well chose not to
call the deponent to give viva voce evidence and be cross-examined on
the vital issue where fraud is alleged. In the circumstances the
court is at large to conclude that the deceased was just as much at
large to change his mind in favour of the applicant a month before he
died as he was to do so a minute or two after deciding that his wife
would be the beneficiary. Mr. Molapo in the course of arguments
submitted that the sets of contracts presented before court by main
contestants as reflected in Annexures
and "M2" respectively raise a serious dispute of fact and
consequently the applicant's case should be dismissed.
pointed out that notwithstanding the perceived dispute learned
counsel did nothing when asked by court what he proposed doing. In
the result the 1st respondent could not make any headway regard being
had to the dictum of Gaunlett J A in C of A (CIV) 18/98 Lesotho
Hotels International vs. the Minister of Tourism etc and 3 ors
(unreported) at p. 11 as follows:
"The appellant in these circumstances, given the dispute of fact
in the third category of the decision in Room Hire (Pty) Limited vs
Jeppe Street Mansions Pty Ltd 1949 (3) SA at 1163, should have sought
a referral to oral evidence [to request court] to proceed on that
basis and grant final relief (Plascon - Evans Paints Ltd vs Van
Riebeeck Paints Pty Ltd 1984 (3) SA 623 (A) at 634H-635B)".
Plascon at 635 above Coobett JA said "If in such a case the
respondent has not availed himself of his right to apply for the
deponents concerned to be called for cross examination" where
"the court is satisfied as to the inherent credibility of the
applicant's factual averment, it may proceed on the basis of the
correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled to the final relief
which he seeks..............".
it then that I take it that the 1st respondent failed to avail
herself of her right to call the custodian of 2nd respondent's
records at her own peril.
the application is granted with costs against 1st respondent only.
counsel : Mr. S. Phafane
Respondent Counsel : Mr. L.D. Molapo
Respondent's Counsel : Mr. Malebanye
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