HIGH COURT OF LESOTHO
NATIONAL INSURANCE COMPANY LTD Applicant
by the Hon Mr Justice Sir Peter Allen on the 24th day of November,
an application by way of Notice of Motion to appoint trustees and to
set up a trust fund for the benefit of the respondent's
minor named Mamsy Lefoka who was seriously injured in a traffic
accident in February 1983 at Mafeteng when she was
aged 12 years.
one eye and now suffers from epilepsy, an inability to walk properly,
personality changes and some mental deterioration.
insurance company decided to settle her claim for compensation and it
was eventually agreed to pay her a total sum
of M29.796 00 of which
M10.000 was to be paid into a trust fund for the girl's benefit and
the rest, M19,796 was paid in cash to
the respondent to use on behalf
of and for the benefit of the girl. The respondent agreed to these
terms and she was asked to nominate
suitable trustees in addition to
one nominated by the applicant, Mr. P. T. Mafike the General Manager
of Lesotho Bank in Maseru.
nominated Mr. W. Herbert, a businessman of Jandrell Group in Mohale's
Hoek, and Mr. Moletsane also of Mohale's Hoek. They both
act as trustees but Mr. Moletsane later withdrew for personal
respondent has so far delayed the appointment of trustees and the
setting up of the trust fund because she insisted that the
M10,000 should be paid directly to her instead of into a trust fund.
She claimed that it would be more convenient and
easier for her to
administer and use the money, especially in emergencies.
the applicant was not at all happy about this because the respondent
has apparently already spent and used the first payment
which they considered should have been used to maintain the girl for
about three years. Instead the respondent purchased
a van for M4,500
and built a three-roomed flat for about M10,000 or more. She also
used M2,000 for legal expenses.
was apparently supposed to be used to transport the girl to Maseru
for treatment and for nothing else. The flat was to produce
income, but this in fact is a very small amount and clearly it will
be a long time before the building costs are recovered.
that money has not been available and used for the benefit of the
girl as it was all intended to be. In my opinion this
was a misuse of
the girl's compensation and it involved a large part of the total sum
awarded. Clearly, in order to protect the
girl's interests it would
be proper to arrange a trust fund and proper handling of her
I do not
consider that the respondent is the right person to be given complete
control over the money.
It may be
that she had good intentions but the results so far have been
unsatisfactory. Furthermore, since this application was
December 1986, the respondent has apparently made
representations to various prominent persons connected with
and elsewhere implying that the applicant is somehow
trying to cheat her and her daughter out of the money This is totally
and most improper behaviour since a matter like this which has
been brought to Court can only be dealt with and disposed of by the
Court. There must be no outside interference or any attempt to
influence the way in which this matter is dealt with here.
reason this matter has been delayed so long and so unnecessarily is
simply because of the intransigence of the respondent. She
the original settlement, the payment of a part of it to her in cash,
and the setting up of a trust fund for the remainder.
But then she
changed her mind and commenced campaigning for a complete handover of
all cash to herself.
there was no reason for this application to be disputed or delayed.
The applicant has done all that it can be expected
to do on behalf of
the girl and, if the respondent had realised and accepted this fact,
the trust fund could have been working
for over a year by now and the
costs of this action would have been avoided
I am satisfied that the proposed trust arrangements are in the best
interests of the minor Mamsy Lefoka Mr. P.T. Mafike,
Manager of Lesotho Bank in Maseru and Mr. W.A. Herbert of the
Group in Mohale's Hoek are both hereby appointed as trustees in the
trust for the benefit of Mamsy Lefoka
now to be set up and the powers of the trustees will be in accordance
with paragraphs (b) (c) (d) (e) (f) (g) and (h)
of the Notice of
Motion Thus the application is granted as prayed.
application was opposed, in my opinion quite unnecessarily, the
applicant will receive its costs, but I would suggest
respondent's reaction to the application was probably
well-intentioned and more the result of ignorance and
the overall situation and purposes of the trust,
rather than any attempt to deprive the girl of any of her benefits,
it would be
a good action on the part of the applicant if it confines
the costs claimed to the absolutely bare minimum.
P. A. P.
Molete for the applicant
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