CIV/APN/377/86

IN THE HIGH COURT OF LESOTHO

In the matter of

LESOTHO NATIONAL INSURANCE COMPANY LTD Applicant

v
JOYCE LEFOKA Respondent

JUDGMENT

Delivered by the Hon Mr Justice Sir Peter Allen on the 24th day of November, 1987

This is 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 daughter, a minor named Mamsy Lefoka who was seriously injured in a traffic accident in February 1983 at Mafeteng when she was aged 12 years.

She lost one eye and now suffers from epilepsy, an inability to walk properly, personality changes and some mental deterioration. The applicant 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.

/She nominated ...

- 2 -

She nominated Mr. W. Herbert, a businessman of Jandrell Group in Mohale's Hoek, and Mr. Moletsane also of Mohale's Hoek. They both agreed to act as trustees but Mr. Moletsane later withdrew for personal reasons.

The respondent has so far delayed the appointment of trustees and the setting up of the trust fund because she insisted that the remaining 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.

However the applicant was not at all happy about this because the respondent has apparently already spent and used the first payment of M19.796 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.

The van was apparently supposed to be used to transport the girl to Maseru for treatment and for nothing else. The flat was to produce rent as income, but this in fact is a very small amount and clearly it will be a long time before the building costs are recovered. Meanwhile 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 remaining funds.

I do not consider that the respondent is the right

person to be given complete control over the money.

/It may be ...

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It may be that she had good intentions but the results so far have been unsatisfactory. Furthermore, since this application was lodged in December 1986, the res­pondent has apparently made representations to various prominent persons connected with government and elsewhere implying that the applicant is somehow trying to cheat her and her daughter out of the money This is totally untrue 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.

The reason this matter has been delayed so long and so unnecessarily is simply because of the intransigence of the respondent. She agreed to 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.

Otherwise 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

Consequently I am satisfied that the proposed trust arrangements are in the best interests of the minor Mamsy Lefoka Mr. P.T. Mafike, the General Manager of Lesotho Bank in Maseru and Mr. W.A. Herbert of the

/Jandrell ...

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Jandrell Group in Mohale's Hoek are both hereby appointed as trustees in the trust for the benefit of Mamsy Lefoka

The trust 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.

Since the application was opposed, in my opinion quite unnecessarily, the applicant will receive its costs, but I would suggest that,since the respondent's reaction to the application was probably well-intentioned and more the result of ignorance and misunderstanding 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. J. ALLEN JUDGE

24th November, 1987

Mr. Molete for the applicant Respondent in person