IN THE HIGH COURT OF LESOTHO
In the matter of:
KOKO THAPELO DEKE Applicant
'MAQHOAI MARYSTELLA QHOAI 1st Respondent
THE STANDARD BANK MASERU 2nd Respondent
THE O.C. ROYAL LESOTHO
DEFENCE FORCE 3rd Respondent
THE ATTORNEY GENERAL N.O. 4th Respondent
Delivered by the Hon. Mr Justice Sir Peter Allen on the 7th day of April, 1988
This is an application by Notice of Motion for the respondents to show cause why;
The second respondent shall not be ordered to freeze the first respondent's savings account, which account number the applicant does not know, which account is held by the second respondent, pending the outcome hereof;
The first respondent shall not be ordered to cease forthwith withdrawals from the said banking account, pending the outcome hereof;
The third respondent shall not be ordered to retrieve the monies due to the late LENDANE DEKE, from the first respondent;'
The first and second respondents shall not be ordered to release and transfer the remaining monies in the first respondent's savings account with second respondent to the applicant.
An interim interdict was granted on 15 May 1987 with regard to prayers (a) and (b). The first respondent filed a notice of intention to oppose followed by a detailed Answering Affidavit. The applicant then filed his Replying Affidavit. The application was clearly and strongly opposed from the start as it involves quite a large sum of money, M18,000.
The background of the case is that one Lendane Deke was a soldier in the RLDF and he was killed in a traffic accident in September 1986. Apparently the third respondent provides each of his personnel in the RLDE with 6 life insurance policy and Lendane was insured with the Metropolitan Insurance Company of Lesotho.
The first respondent 'Maqhoai, also known as 'Matoka Deke, claims to be the customanyrwife of the late Lendane Deke after elopement. She is now aged 25 years and there are two minor children of the alleged marriage, Zibonele and Moeketsi.
After Lendane's death the insurance company paid the first respondent the sum of M18,000 from his life policy and she deposited the money in her savings account with the Standard Bank (2nd respondent). The 1st respondent withdrew a half of the amount, M9,000, and built a two-roomed house and purchased a knitting-machine which she uses to make jerseys for sale so as to have an income for the maintenance of herself and the two children.
The applicant is. the father of the late Lendane. In his affidavit he maintains that Lendane never married and that the 1st respondent is not entitled to Lendane's insurance money. He wants that money to be handed over to himself and his family. He accuses the 1st respondent of squandering the money and of being irresponsible.
He admitted that Lendane did in fact tell him of his wish to marry the 1st respondent, but he claimed that it never actually took place as there was no marriage negotiation and no bohali paid. He also admitted that he had "allowed" the 1st respondent to receive the insurance money but he said it was "not for her personal use but for the family use."
The 1st respondent in her affidavit described how the applicant and his wife accepted her as a daughter in law", slaughtered a sheep and gave her a long dress and gave her the name 'Matoka Deke. She added that she stayed at their home for two weeks and she was introduced to members of the family as Lendane's wife. She lived with Lendane and had two children by him. Her first child was born at the applicant's home on his invitation and the applicant performed customary rites of bipisoa and the 1st respondent was nursed by the applicant's wife. The second child was born and given the name Moeketsi by the applicant's wife. The applicant himself named the child Sthembiie after Lendane's death. She claims that, after the observance or all these customs, the applicant is now estopped from denying the existence of her marriage to Lendane.
She is supported by an affidavit from her grandmother Mankopane Qhoai, who described how she had been trying to
get six heads of cattle from the Deke family for the abduction and that they had agreed, but they kept delaying in bringing the cattle. They also told her that they would bring bohali cattle when they were ready.
In his replying affidavit the applicant denied all of these assertions by the 1st respondent and her grandmother and he added that no marriage existed because no bohali was paid and there was no marriage agreement.
It is quite clear from this brief summary of the numerous assertions and denials that there was a serious dispute of facts between the parties and this must have been obvious from the start. The Deke family want to get their hands on this large sum of money and the 1st respondent wants to retain and use it for herself and her children. There was no chance of her merely agreeing to hand it over at any time.
Quite clearly the applicant's claim should have been brought by means of a summons so that witnesses could be produced and evidence adduced in support of the claim and against it. The matter should never have been filed as an application since obviously it cannot be decided upon affidavits.
Apart from the issue of whether or not the 1st respondent was married to Lendane by custom, there is also another important issue to be decided. That is, on what legal basis the applicant supports his claim to the money. The affidavits do not deal with this issue at all.
Lendane&was insured with the Metropolitan Insurance Co. and it is the usual practice that such policies contain
the name of the person who is to benefit on the death of the insured person. That beneficiary is named by the insured and is the one to whom the insurance company will pay the money. Since the 1st respondent was paid the M18,OOO by the insurance company it would appear, on the face of it, that she can be presumed to have been the person named as beneficiary. There is no evidence or claim in the applicant's affidavit to the contrary.
If it had been the applicant who was named as beneficiary then the insurers would surely have paid him. It is not likely that a beneficiary named vaguely as "the Deke family or "the insured's family" would have been acceptable to the insurers since it would have left them without the precise names of beneficiaries. As a consequence all sorts of ineligible people might then make claims and cause problems and bring court oases, which could so easily be avoided by the practice of requiring beneficiaries to be named. Thus evidence would have to be adduced to inform the Court of the exact position. No copy of the policy was annexed.
If the 1st respondent is the named beneficiary in the policy of insurance, as seems likely, then it would not matter or be relevant whether or not her marriage could be proved, for the applicant could not then succeed anyway.
These potential issues should have been obvious to the applicant from the start, together with the fact that the 1st respondent would be certain to oppose the application. Moreover, the affidavits do not prima facie support any claim made by the applicant. No final decision can be made on
the affidavits alone, and the applicant should have been well aware of this position. Under rule 8(14) of the High Court Rules, this application is dismissed with costs. The rule is discharged and the interdict is lifted from the the 1st respondent's savings bank account with the Standard Bank.
P. A. P. J. ALLEN
7 March April 1988
Mr Mohau for applicant
Mr Maqutu for 1st respondent
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