CIV/APN/418/99

IN THE HIGH COURT OF LESOTHO

In the matter between

PETER LEFUME LEPAMO 1ST APPLICANT

MOKUTU MAKARA 2ND APPLICANT

ARTHUR MAKHALEMELE 3RD APPLICANT

SEKOALA MOTSOASELE 4TH APPLICANT

ROBERT LIKHANG 5TH APPLICANT

'MAMPABI MOOROSI 6TH APPLICANT

MAKATEMOLISANA 7TH APPLICANT

THABISO TJAMELA 8TH APPLICANT

and

LESOTHO BANK 1ST RESPONDENT

THE GOVERNOR,

CENTRAL BANK OF LESOTHO

(In his capacity as
chairperson-chairperson-
coordinating committee old Lesotho
Bank) 2ND RESPONDENT
THE GENERAL MANAGER

LESOTHO BANK 3RD RESPONDENT

MINISTER OF FINANCE 4TH RESPONDENT

ATTORNEY-GENERAL 5TH RESPONDENT

JUDGMENT

Delivered by the Honourable Mr. Justice M.M. Ramodibedi
On the 15th day of December 1999.

The story of the litigation in this matter is hardly in
dispute and it revolves around the fact that in or about 1985 the
Lesotho
Bank (hereinafter referred to as the

2
First Respondent) established a non-contributory
pension fund in order to provide its members with benefits as
provided for in the
rules (Annexture "MW3") regulating the
fund. What this meant was that First Respondents members did not make
any contributions
towards 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 cause.

it is further common cause that when the First
Respondent commenced operating the pension fund all the Applicants
with the exception
of the 7th Applicant were made members of the
fund. The 7th Applicant only became a member thereof in July 1990
when he joined the
First Respondent bank.

Once again it is common cause that only members are
entitled to the benefits arising out of the pension fund in question
and that
by May 1998 the Applicants had resigned from the First
Respondent bank before attaining the normal retirement age as
contemplated
in the Rules of the pension fund.

Against the above mentioned background the Applicants
have approached this Court for an order couched in the following
terms :

3

"1, A Rule Nisi do hereby issue calling upon the
Respondents to show cause on the day to be determined by this
Honourable Court,
why;

1. 
   The ordinary periods of notice shall not be
   dispensed
   with due to the urgency of the matter

   
   

2. 
   The 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 finalisation
   hereof.

   
   

3. 
   The first and third Respondent (sic) herein
   shall
   not be directed to supply the Applicants
   forthwith, with copies
   of the rules and
   regulation (sic) governing the aforesaid fund.

   
   

4. 
   The 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.

   
   

e) Respondents herein shall not be directed to
pay
the costs hereof on the attorney and client
scale.

4

f) Applicant (sic) shall not be granted such further
and/or alternative relief as this Honourable Court may deem fit.

2. That prayer 1 (a) and (b) operate with immediate
effect as temporary interdicts."

The broad 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
did not
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.

Before 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
December 1999 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.

1 proceed then to deal with the merits of the case.

5
I observe at the outset that the whole case for
the Applicants is premised on the allegation that the pension fund no
longer exists.
This allegation is contained in paragraph 11 of the
founding affidavit of Peter Lefume Lepamo wherein he deposes as
follows -

"11.

Sometime in or around 1992, the First Respondent herein
due to financial restraints on its part, decided to stop the running
of the
aforesaid 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"

The 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
this contention seems to me to be unanswerable. It commends itself to
me as indeed any distribution of monies standing to the credit
of the
pension fund in question as well as dissolution of the

6
fund itself must be made in accordance with the
Rules and Regulations (Annexrure "MW3") of the fund.It
cannot be otherwise.

It no doubt proves convenient at this stage to refer to
the relevant Rules of the pension fund in question. Rule 6.1.1 on
dissolution
of the 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
instruct 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."

I observe 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

Mr. Nathane for the Applicants has tried to go around
this hurdle by relying on Rule 8.3.4 which provides as follows :-

7

"Should the Employer fail to contribute hereunder
in full within the days of grace or such extended time as the insurer
may allow,
the 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 "

The 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 contributions.

Against the above mentioned background it is pertinent
to bear in mind the fact that the Applicants have admittedly never
claimed
or received their perceived entitlements from the pension
fund since 1992 when they allege it was dissolved or at the time of
their
respective resignations from the First Respondent bank. As a
matter of overwhelming probability I consider that they would have
claimed
and 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

8
pension fund was never dissolved and that on the
contrary it still exists.

Accordingly I accept the version of the Respondents on
this issue which is afterall supported by the Rules and Regulations
of the
Fund and proceed on the correctness thereof.

See Plascon Evants Paints v Van Riebeeck Paints (Pty)
Ltd 1984 (3) SA 623 (A) at 634-635.

That 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 was
not dissolved. In any event on the Applicants' own
version that the Fund stood to be distributed in 1992 any benefits
standing to
the credit of the 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 the
Fund."

As I have stated above the pension fund in question was
specifically established for the sole purpose of providing members
with benefits
as provided for in the Rules regulating the Fund.
These are referred to as "Rules of the Lesotho

9
Bank Pension Fund" Annexture "MW3".
Rule 1 provides as follows on the

establishment
and object of the Fund :-

A Fund called the LESOTHO PENSION FUND (hereinafter
called the "Fund") was established with effect from 1
October 1985 (hereinafter
called the "Commencement Date")
to provide its Members with the benefits described in these Rules."

Now the word "member" is defined in Rule 3 on
definitions in the following terms :-

"A person who is a Member of the Fund in terms of
these Rules."

Qualification as to membership is in turn provided for
in Rule 7.1 in the following terms :-

"7.1 Qualification

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
60 qualifies for membership."

Significantly cessation of membership is governed by
Rule 7.6 in the following terms :-

10

"7.6 A Member's membership ceases only -

1. 
   at his death; or

   
   

2. 
   when he ceases to be an Employee, unless he
   remains
   entitled to a benefit payable in terms
   of these Rules; or

   
   

3. 
   on dissolution of the Fund."

   
   

In 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 them
remains entitled to any benefit payable to them in terms
of the rules. None of the Applicants therefore has locus standi to
bring
this application."

Amazingly the Applicants have left these allegations
completely unchallenged in their replying affidavits. I have no
hesitation therefore
in accepting the version of the Respondents in
this regard. In particular I accept as a fact that none of the
Applicants remains
entitled to any benefit payable to them in terms
of the Rules including deferred pension payable from their normal
retirement dates.

See Plascon Evants Paints v Van Riebeeck Paints (Pty)
Ltd (supra).

11
There is 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
:-

"If a Member terminates his service with the
Employer before the Normal Retirement Date and is not entitled to any
other benefits
under the Fund, the following benefits shall be
available to him:

9.1 Cash

A refund of the Member's own contribution to the Fund
together with compound interest thereon at 5% per annum; or

9.2 Deferred pension

A pension payable from the Normal Retirement Date and
equal to the pension equivalent, as determined by the Valuator, of
the cash
benefit determined in accordance with Rule 9.1."

A proper reading of this Rule shows that if a member
terminates his services with the First Respondent bank before the
normal retirement
date as all the Applicants admittedly did, then he
is only entitled to a cash refund of his own contributions to the
Fund alternatively
he is entitled to a deferred pension payable from
normal retirement date. Such deferred pay will in turn be based on
the member's
own contributions to the Fund.

12
It follows from the aforegoing that since none of
the Applicants ever

contributed any money to the Fund then none of them was
entitled to any benefit arising out of the fund when he/she resigned
from
the First Respondent bank.

See Lesotho Agricultural Development Bank v Mathetso
Foloko & Others 1997-98 LLR & Legal Bulletin 34 in which in
interpreting
rules of 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 employer's
contribution."

In my view the position is substantially the same in the
instant matter and therefore merits similar treatment.

In the 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
to their resignation dates.

13
In 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 that
pension shall be payable to the member on "Retirement
on the Normal Retirement Date."

Now the term "Normal Retirement Date" is
defined in Rule 3 of the Rules of the Lesotho Bank Pension Fund as
meaning "the
last day of the month in which a member attains his
Normal Retirement Age."

It is 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
concede 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.

In Setlogelo v Setlogelo 1914 AD 221 Innes JA
enunciated the principles on interdict in the following terms :-

14

"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 ordinary remedy."

I respectfully agree.

I am satisfied on the facts of the instant matter that
the Applicants have no clear right capable of legal enforcement in
the matter.
In the 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 effect :-

"The 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."

In my view the Applicants' relief sought in this prayer
amounts to actio popularis which is obsolete.

See Rooderpart-Maraisburg Town Council v Eastern
Properties (Pty)

Ltd 1933 AD 87.

Lesotho Human Rights Alert Group v Minister of Justice
and Human

15
Rights & OTHERS 1993-94 LLR & Legal
Bulletin 264.

LTC & Another v M. Nkuebe & Others 1997-98 LLR &
Legal Bulletin 438 at 444.

In paragraph 26 of his opposing affidavit Michael Wooler
makes the point in effect that the Applicants have not exhausted
local remedies.
Thus for instance they have not referred the decision
of the First Respondent on the interpretation of the Rules in
declining to
grant the benefits sought for arbitration in terms of
Rule 4.6. I agree.

Rule 4.6 is on interpretation of the Rules and it
specifically provides as follows:-

"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 terms
of and in the manner set out int he Arbitration Act No 42 of
1965 of the Republic of South Africa."

1 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 the matter.

It follows from the aforegoing that this application
cannot succeed and stands to be dismissed.

The 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
L.A.C. 307.

17
There is 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.

In paragraph 6 of the replying affidavit of Peter Lefume
Lepamo the Respondents make the point that the Lesotho Bank Pension
Fund
has not 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.

Suffice it to say that the Applicants concede that apart
from the Lesotho Bank Pension Fund and its Principal Officer the
other parties
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

18
accept this contention which clearly overlooks
the reality of the matter as well as the test for 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 not
be sustained or carried into effect without prejudicing
that party, he is a necessary party and should be joined in the
proceedings,
unless the Court is satisfied that he has waived his
right to be joined."

See also Basotho Congress Party & Ors. V Director of
Elections and others 1997-98 LLR & Legal Bulletin 518 at 531-532.

It seems clear to me therefore that if one applies the
above test the other members of the Fund and the Metropolitan Limited
being
the insurers of the Fund should at the very least have been
joined in this application as they have a direct and substantial
interest
in the Fund. In this regard I accept Mr. Olivier's
submission that the Metropolitan Life Limited would no doubt be
obliged to give
effect to any Order the Court might make. In that
sense it is a necessary party and should have been joined in these
proceedings.

Accordingly on the ground of non-joinder alone this
application further falls

19
to be dismissed as in my view the Applicants are
clearly non-suited.

In all the circumstances of the case therefore the Rule
is discharged and the application dismissed with costs including
costs of
two Counsel.

M.M. Ramoatbedi

JUDGE
15th December 1999

For Applicants : Mr. H. Nathane

For 1st, 2nd & 3rd Respondents : Mr. W. Olivier
S.C.

(Assisted by Mr. H.H.T Woker)