HIGH COURT OF LESOTHO
LEFUME LEPAMO 1ST APPLICANT
MAKARA 2ND APPLICANT
MAKHALEMELE 3RD APPLICANT
MOTSOASELE 4TH APPLICANT
LIKHANG 5TH APPLICANT
MOOROSI 6TH APPLICANT
TJAMELA 8TH APPLICANT
BANK 1ST RESPONDENT
BANK OF LESOTHO
capacity as chairperson-chairperson-coordinating
committee old Lesotho Bank)
GENERAL MANAGERLESOTHO BANK 3RD RESPONDENT
OF FINANCE 4TH RESPONDENT
by the Honourable Mr. Justice M.M. Ramodibedi On the 15th day of
of the litigation in this matter is hardly in dispute and it revolves
around the fact that in or about 1985 the Lesotho
referred to as the
Respondent) established a non-contributory pension fund in order to
provide its members with benefits as provided for in
(Annexture "MW3") regulating the fund. What this meant was
that First Respondents members did not make any
the fund out of their own earnings but instead all contributions to
the fund were made by the Respondent
bank itself. All this is common
further common cause that when the First Respondent commenced
operating the pension fund all the Applicants with the exception
the 7th Applicant were made members of the fund. The 7th Applicant
only became a member thereof in July 1990 when he joined
again it is common cause that only members are entitled to the
benefits arising out of the pension fund in question and that
1998 the Applicants had resigned from the First Respondent bank
before attaining the normal retirement age as contemplated
Rules of the pension fund.
the above mentioned background the Applicants have approached this
Court for an order couched in the following terms :
A Rule Nisi do hereby issue calling upon the Respondents to show
cause on the day to be determined by this Honourable Court,
ordinary periods of notice shall not be dispensed with due to the
urgency of the matter
first and third Respondent (sic) herein an/or (sic) officers
subordinate to them shall not be interdicted forthwith, from
processing payment of money form (sic) the pension fund scheme
referred to in paragraph 9 of the founding affidavit pending the
first and third Respondent (sic) herein shall not be directed to
supply the Applicants forthwith, with copies of the rules
regulation (sic) governing the aforesaid fund.
Applicant (sic) herein and any other person on whose behalf
contribution has been made to the aforesaid fund, shall not be
declared as the sole beneficiaries to the said fund.
herein shall not be directed to pay the costs hereof on the attorney
and client scale.
(sic) shall not be granted such further and/or alternative relief as
this Honourable Court may deem fit.
prayer 1 (a) and (b) operate with immediate effect as temporary
issue that falls for determination by this Court is whether the
Applicants are entitled to the benefits of the pension
fund. It is
the Respondents' case that the Applicants do not qualify for such
benefits by reason of the fact that they admittedly
contribute any monies to the fund and that since they have admittedly
resigned from the First Respondents bank they are
no longer members
of the fund.
dealing with the pros and cons of the matter I should like to state
that at the hearing of the matter before me on the 8th
the application against the 4th and 5th Respondents was withdrawn by
consent on the ground of misjoinder and the
Court directed that there
shall be no order as to costs relating to these two respondents.
then to deal with the merits of the case.
observe at the outset that the whole case for the Applicants is
allegation that the pension fund no longer exists. This allegation is
contained in paragraph 11 of the founding affidavit of
Lepamo wherein he deposes as follows –
in or around 1992, the First Respondent herein due to financial
restraints on its part, decided to stop the running of
fund, and the money standing to the credit of the said fund, stood to
be distributed, with interest of course, on
a prorata (sic) basis to
the lawful participants thereof"
Applicants have however failed to substantiate the allegations
contained in the above quoted paragraph and for their part the
Respondents deny these allegations as fully set out in paragraph 28
of the opposing affidavit of Michael Wooler in which he emphasises
that the fund has never been dissolved and that it still exists to
date. What is more, this deponent significantly avers that "in
no circumstances will the bank or the fund make payments out of the
fund which are not in accordance with the Rules." Indeed
contention seems to me to be unanswerable. It commends itself to me
as indeed any distribution of monies standing to the credit
pension fund in question as well as dissolution of the
itself must be made in accordance with the Rules and Regulations
of the fund.It cannot be otherwise.
doubt proves convenient at this stage to refer to the relevant Rules
of the pension fund in question. Rule 6.1.1 on dissolution
fund provides as follows:-
"If the Employer is wound up, whether voluntarily or not, or if
the Employer ceases to carry on business, the Employer shall
the Principal Officer to dissolve the Fund by dividing the monies of
the Fund, after payment of all expenses incurred
in terminating the
Fund, among the Members and persons in receipt of pensions and
prospectively entitled to pensions in a manner
recommended by the
Valuator and approved by the Insurer."
at once that nowhere in the papers before me is there evidence to
show that in or about 1992 as the Applicants allege
the Employer was
ever wound up or ceased to carry on business or indeed that the
Employer ever instructed the Principal Officer
to dissolve the Fund
by dividing the monies of the Fund among the members
Nathane for the Applicants has tried to go around this hurdle by
relying on Rule 8.3.4 which provides as follows :-
"Should the Employer fail to contribute hereunder in full within
the days of grace or such extended time as the insurer may
Employer shall be deemed to have discontinued payment of
contributions and shall not be entitled to resume payment of
contributions without the consent of the Insurer. Should the Insurer
not consent to the resumption of contribution payments, the
provisions of Rule 6.1 shall apply mutatis mutandis "
difficulty with Mr Nathalie's submission is that there is no credible
evidence to show that the Employer failed to contribute
monies to the
pension fund in full within the days of grace or such extended time
as the insurer might allow. Even assuming that
the Employer had
failed to contribute timeously there is no credible evidence that the
insurer did not consent to the resumption
of payments of
the above mentioned background it is pertinent to bear in mind the
fact that the Applicants have admittedly never claimed
their perceived entitlements from the pension fund since 1992 when
they allege it was dissolved or at the time of their
resignations from the First Respondent bank. As a matter of
overwhelming probability I consider that they would have
obtained such benefits if their version is correct. The fact that
they have not claimed the benefits from 1992 to date
leads me to the
inescapable conclusion that the
fund was never dissolved and that on the contrary it still exists.
I accept the version of the Respondents on this issue which is
afterall supported by the Rules and Regulations of the
proceed on the correctness thereof.
Plascon Evants Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623
(A) at 634-635.
being so I consider that Rules 6.1.1 and 8.3.4 relied upon by Mr.
Nathane are not applicable to this case because the Fund
event on the Applicants' own version that the Fund stood to be
distributed in 1992 any benefits standing to the credit of
Applicants would have reverted to the Fund in terms of Rule 9.2 which
provides as follows :-
"If a withdrawal benefit remains unclaimed for 3 years after the
date on which it first becomes payable, it shall revert to
As I have
stated above the pension fund in question was specifically
established for the sole purpose of providing members with
as provided for in the Rules regulating the Fund. These are referred
to as "Rules of the Lesotho
Pension Fund" Annexture "MW3". Rule 1 provides as
follows on the establishment and object of the Fund :-
called the LESOTHO PENSION FUND (hereinafter called the "Fund")
was established with effect from 1 October 1985
the "Commencement Date") to provide its Members with the
benefits described in these Rules."
word "member" is defined in Rule 3 on definitions in the
following terms :-
person who is a Member of the Fund in terms of these Rules."
as to membership is in turn provided for in Rule 7.1 in the following
Subject to the provisions of Rule 7.2, any full-time Employee on the
permanent staff of the Employer who has not yet attained age
qualifies for membership."
cessation of membership is governed by Rule 7.6 in the following
"7.6 A Member's membership ceases only -
7.6.1 at his death; or
7.6.2 when he ceases to be an Employee, unless he remains entitled to
a benefit payable in terms of these Rules; or
7.6.3 on dissolution of the Fund."
paragraph 21 of his opposing affidavit Michael Wooler makes damaging
averments against the Applicants in the following terms
"All the Applicants ceased to be employees of the bank on the
dates mentioned in the table in paragraph 7 above and none of
remains entitled to any benefit payable to them in terms of the
rules. None of the Applicants therefore has locus standi to
the Applicants have left these allegations completely unchallenged in
their replying affidavits. I have no hesitation
accepting the version of the Respondents in this regard. In
particular I accept as a fact that none of the Applicants
entitled to any benefit payable to them in terms of the Rules
including deferred pension payable from their normal retirement
Plascon Evants Paints v Van Riebeeck Paints (Pty) Ltd (supra).
no doubt that a member's entitlement to benefits upon ceasing to be a
member of the Fund is governed by Rule 9 which reads
as follows in so
far as "withdrawal Benefit" is concerned :-
a Member terminates his service with the Employer before the Normal
Retirement Date and is not entitled to any other benefits
Fund, the following benefits shall be available to him:
of the Member's own contribution to the Fund together with compound
interest thereon at 5% per annum; or
payable from the Normal Retirement Date and equal to the pension
equivalent, as determined by the Valuator, of the cash
determined in accordance with Rule 9.1."
reading of this Rule shows that if a member terminates his services
with the First Respondent bank before the normal retirement
all the Applicants admittedly did, then he is only entitled to a cash
refund of his own contributions to the Fund alternatively
entitled to a deferred pension payable from normal retirement date.
Such deferred pay will in turn be based on the member's
contributions to the Fund.
follows from the aforegoing that since none of the Applicants ever
contributed any money to the Fund then none of them was entitled
any benefit arising out of the fund when he/she resigned from the
First Respondent bank.
Lesotho Agricultural Development Bank v Mathetso Foloko & Others
1997-98 LLR & Legal Bulletin 34 in which in interpreting
the Fund which were substantially similar as in the instant case
Browde JA made the following remarks at p35 thereof:-
"There appears to be nothing in the rules which entitles a
member who takes early retirement to receive payment of the
view the position is substantially the same in the instant matter and
therefore merits similar treatment.
same breath I consider that the question whether or not the
Applicants are entitled to the alternative benefit of deferred
pension provided for in Rule 9.2 would only arise when the Applicants
reached their "Normal Retirement " dates as opposed
their resignation dates.
this regard it is necessary to have regard to the provisions of Rule
11.1 and 11.1.1 which provides in no uncertain terms
shall be payable to the member on "Retirement on the Normal
term "Normal Retirement Date" is defined in Rule 3 of the
Rules of the Lesotho Bank Pension Fund as meaning "the
of the month in which a member attains his Normal Retirement Age."
common cause and I accordingly accept that all the Applicants
resigned before attaining the normal retirement age as contemplated
in the Rules governing the Fund. Michael Wooler makes the point in
paragraph 7 of his opposing affidavit. The Applicants in turn
the point in paragraph 9 of the replying affidavit of Peter Lefume
Lepamo. What the Applicants have failed to set out and
prove on the
papers before me, however, is the question of their Normal
Retirements Dates as contemplated by the Rules. This is
more so since
in my view any pension payable in terms of the Rules is only payable
from "Normal Retirement Date." It
follows that any claim
made before this date is premature and unenforceable.
Setlogelo v Setlogelo 1914 AD 221 Innes JA enunciated the principles
on interdict in the following terms :-
"The requisites for the right to claim an interdict are well
known; a clear right, injury actually committed or reasonably
apprehended, and the absence of similar protection by any other
satisfied on the facts of the instant matter that the Applicants have
no clear right capable of legal enforcement in the matter.
same breath I am satisfied that they have no locus standi to sue in
the matter but that on the contrary prayer 1 (d) of
the Notice of
Motion clearly indicates that the Applicants are suing on behalf of
others. It will be recalled that that prayer
is to the following
"The Applicant (sic) herein and any other person on whose behalf
contribution has been made to the aforesaid fund, shall not
declared as the sole beneficiaries to the said fund."
view the Applicants' relief sought in this prayer amounts to actio
popularis which is obsolete.
Rooderpart-Maraisburg Town Council v Eastern Properties (Pty) Ltd
1933 AD 87.
Human Rights Alert Group v Minister of Justice and Human 15 Rights &
OTHERS 1993-94 LLR & Legal Bulletin 264.
Another v M. Nkuebe & Others 1997-98 LLR & Legal Bulletin 438
paragraph 26 of his opposing affidavit Michael Wooler makes the point
in effect that the Applicants have not exhausted local
for instance they have not referred the decision of the First
Respondent on the interpretation of the Rules in declining
the benefits sought for arbitration in terms of Rule 4.6. I agree.
is on interpretation of the Rules and it specifically provides as
"In all matters relating to the interpretation of these Rules
and/or the administration of the Fund the decision of the Employer
shall be final and binding on the Principal Officer and the Members,
provided that such ruling is not contrary to these Rules.
If any party concerned is aggrieved at the decision of the Employer
the aggrieved party may refer the matter for arbitration in
and in the manner set out int he Arbitration Act No 42 of 1965 of the
Republic of South Africa."
consider therefore that it was encumbered on the Applicants to refer
the 16 matter for arbitration as provided for in the Rules.
Accordingly I remain unpersuaded that the Applicants have exhausted
local remedies and that they have no alternative remedy in
follows from the aforegoing that this application cannot succeed and
stands to be dismissed.
conclusion at which I have reached in this matter renders it strictly
unnecessary for me to deal with all the points raised
in limine save
to say that once it has been found, as it is, that the Applicants
have no clear right in the matter and that accordingly
they had no
locus standi then it follows as a matter of logic and common sense
that there was no urgency established in the matter.
On this ground
alone the application falls to be dismissed as well as on the ground
that all the Applicants except the First Applicant
failed to make a
material disclosure that they actually resigned from the First
Respondent bank and are as such no longer members
of the Fund. It is
indeed trite that in ex parte applications the Applicant must display
the utmost good faith and disclose fully
and fairly all material
facts known to him failing which the Court, in the exercise of its
judicial discretion, may dismiss the
application on this ground
alone. See Trakman NO v Livshits & Others 1995 (1) SA 282 at 288.
See also Ntsolo v Moahloli 1985-89
again the question of non joinder. The Respondents make this point in
paragraph 6.2 of the opposing affidavit of Michael
Wooler in which
they point to the fact that interested parties who would be affected
by the relief sought in this matter have not
been joined. These are
the Lesotho Bank Pension Fund itself, The Fund's Principal Officer,
all members of the Lesotho Bank Pension
Fund and Metropolitan Life
limited who are the insurers of the Fund.
paragraph 6 of the replying affidavit of Peter Lefume Lepamo the
Respondents make the point that the Lesotho Bank Pension Fund
been registered in accordance with the laws of Lesotho and that
accordingly it lacks capacity to sue or be sued in its
own name. This
despite the fact that Rule 4.1 of the Rules which must be deemed to
be the parties' binding agreement specifically
bestows legal capacity
on the Fund by consent at the very least. It is however not necessary
to decide this point.
it to say that the Applicants concede that apart from the Lesotho
Bank Pension Fund and its Principal Officer the other
mentioned by Michael Wooler above "are affected by the Fund."
The Applicants contend however that even though
those other parties
are affected, their rights are not prejudiced in this application and
that the Applicants are only pursuing
their personal rights. I cannot
this contention which clearly overlooks the reality of the matter as
well as the
joinder as laid down in the headnote in Amalgamated Engineering Union
v The Minister of Labour 1949 (3) SA 637 (A) namely
"If a party has a direct and substantial interest in any order
the Court might make in proceedings or if such order could
sustained or carried into effect without prejudicing that party, he
is a necessary party and should be joined in the proceedings,
the Court is satisfied that he has waived his right to be joined."
Basotho Congress Party & Ors. V Director of Elections and others
1997-98 LLR & Legal Bulletin 518 at 531-532.
clear to me therefore that if one applies the above test the other
members of the Fund and the Metropolitan Limited being
of the Fund should at the very least have been joined in this
application as they have a direct and substantial interest
Fund. In this regard I accept Mr. Olivier's submission that the
Metropolitan Life Limited would no doubt be obliged to give
any Order the Court might make. In that sense it is a necessary party
and should have been joined in these proceedings.
on the ground of non-joinder alone this application further falls 19
to be dismissed as in my view the Applicants are
the circumstances of the case therefore the Rule is discharged and
the application dismissed with costs including costs of
Applicants : Mr. H. Nathane
2nd & 3rd Respondents : Mr. W. Olivier S.C.(Assisted by Mr. H.H.T
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