CIV/APN/360/2000 IN THE HIGH COURT OF LESOTHO
In the matter between :
SEHLOMENG 'MOTA 1st RESPONDENT
EMPLOYMENT BUREAU OF AFRICA 2nd RESPONDENT
JUDGMENT Delivered by Hon. Justice M.L.
Lehohla on the 3rd day of September, 2001
On Friday last week this court heard arguments by
counsel for respective parties in the above matter. The thrust of the
was centred between the applicant's counsel and counsel for
the first respondent. Mr. Malebanye for 2nd respondent
undertook to abide the Judgement of the Court.
The notice of motion moved on 25th September
2000 prayed for a rule nisi to issue returnable on the date and time
to be determined by this court calling upon the Respondents
(a) the 2nd Respondent shall not be
restrained from releasing
to the first Respondent any benefits accruing from the
death of the late Thabo Motokoa.
the applicant shall not be declared the sole
beneficiary of the late Thabo Motokoa, in terms of the contract
between second Respondent
the 1st respondent shall not be restrained
from receiving any benefits accruing from the death of the late
the rules as to forms and notice shall not be dispensed
with on account of urgency;
the respondents shall not be ordered to pay costs
the applicant shall not be granted further and/or
2. that prayer l(a) and(d) shall operate with immediate
effect as an interim order pending finalization hereof.
The affidavit of Motlatsi Motokoa has been attached to
the notice of motion.
In his founding affidavit Motlatsi Motokoa avers that he
is the father of the deceased Thabo Motokoa who at the time of his
was currently employed by Anglo Gold Vaal River surviving under
the name Vaal Reefs Mining Company Limited. The deceased died on
The deponent further avers that the deceased, upon being
employed, signed a contract with his employer executable through the
of the Labour Commissioner. The Contract was signed on 27th
May 1998. A copy of the contract is annexed marked "B".
The annexure reflects the applicant as the beneficiary
in respect of Insurance benefits accruing in terms of the contract in
of Thabo's death. The 2nd respondent was thus
contractually bound to transmit benefits to the applicant upon
The applicant has not concealed that prior to the
contract marked annexure " B", Thabo the deceased had
appointed the 1st respondent as the beneficiary who it is
alleged had been his girl friend with whom the deceased had been
living together for sometime.
To the extent that the applicant has
not concealed that the deceased had previously appointed the 1st
respondent as the beneficiary, his bona fides are above board.
Thus he accordingly avers that the deceased cancelled
the contract that had initially been intended to benefit the 1st
respondent and in its place created annexure "B" which was
to benefit the applicant instead. Thus the applicant asserts
alone is the lawful beneficiary to the deceased's death benefits.
The applicant complains in paragraph 10 though now this
complaint should be blunted by the attitude subsequently adopted by
the 2nd respondent's counsel who undertook to abide the
decision of the court. Nonetheless the applicant's complaint was that
the 2nd respondent's officers acting within the scope of
their official duty with 2nd respondent unlawfully and
wrongfully refused to release the said funds to him. It is said that
they alleged that the 1st respondent is the deceased's
wife and beneficiary and that the applicant is not entitled to the
said funds because he is not the
deceased's wife. The complaint
further stated that the officers of the 2nd respondent
claimed further that the benefits are to be shared between 1st
respondent and the applicant. The applicant accordingly points out
that they have no right to do such a thing.
The applicant further avers that the 1st
respondent was never married to the deceased. He nonetheless argues
alternatively that, even if she was so married that didn't debar
deceased from appointing a person of his choice as a beneficiary
under the contract.
The applicant has thus approached this Court labouring
under grave apprehension that the 2nd respondent would in
the circumstances unlawfully and illicitly release the said funds to
the 1st respondent at any time and in the face of
unambiguous directive made manifest by the deceased
during his life-time. He points out that should this be the case he
irreparable harm as applicant, inasmuch as the 1st
respondent is a person of straw. He rams this point home by
indicating that he would not be afforded substantial relief at a
in due course.
The applicant thus finally avers that the case he has
moved before court is a matter of extreme urgency and that he has no
remedy in the circumstances.
Mr. Molapo camping on the trail of the 1st
respondent argued that there is no urgency in this matter. But I have
come to the conclusion that reading from applicant's affidavit
clear case for urgency has been made out. He relied for this
proposition on Commander L.D.F. vs M. Matela COA (CIV) No 3 of 1999.
It however appears to me that the above authority has been read out
of context in the light of the fact that the proper and practical
approach should be if the affidavit discloses sufficient facts from
which it can be concluded that the case cries out for urgent
as was the case in Tseliso Makhakhe & ors vs Qhobela Molapo and
ors CIV/APN/410/99 by Monaphathi J. and confirmed on Appeal
notwithstanding or after Commander LDF above, that should be enough.
The 1st respondent avers that she was married
to the applicant's son and was given the name 'Marorisang Motokoa as
a result of her marriage
to the late Thabo.
She avers that the applicant is not entitled to the
remedy sought. She denies that Thabo executed Annexure B. She avers
that the form
which was executed and
signed on behalf of Thabo on 27th May 1988
did not have some of the hand-writings on it such as "Motlatsi
Father Divorce - 07/01/99 - R4000.00 to follow and BH
She has annexed what she wishes to be regarded as
genuine copies of the contract dated 14th July 1997 and
27th May 1998. Both are marked "M2"
collectively. She prays that Annexure "B" be rejected as a
and therefore a nullity. She points out that "M2"
collectively reflects her as the wife of the deceased Thabo.
There is a strong undercurrent of belief in the 1st
respondent's affidavit that because she is the wife of the deceased
Thabo she is therefore the one who is entitled to the death benefit
accruing from the contract the deceased concluded with his employer.
Indeed Mr. Molapo buttressed this somewhat mistaken belief.
in the sense that this is not always true in all occasions.
The highest authority that should be relied on to
disabuse all parties in similar circumstances is none other than C of
A (CIV) No
8 of 1986 RAMAHATA vs RAMAHATA (unreported) at pp 4 and 5
where Schutz P, as he then was said:
'This case is a simple, one. The appellant has
established a stipulatio alteri (contract for the benefit of a third
the son and the Insurance Company : see e.g. Croce vs
Croce 1940 TPD 251. The institution of stipulatio alteri by virtue of
part of the Roman Dutch Law, also forms part of the law of
Lesotho. The contract is to the effect that she is entitled to accept
the benefit of this contract,
and the evidence is that she has in fact done so. Her
rights therefore flow from contract and the M6000 has nothing to do
deceased estate. For these reasons the appeal succeeds".
I have italicised the words she and Her appearing in the
above quotation to call to attention that the successful party in the
case was the deceased's concubine for whose benefit a
stipulatio alteri had been created by the deceased. Thus because she
in that contract the deceased's own wife and children
stood to lose.
Molapo sought to rely on the Employment Bureau of Africa Limited
constituting regulations adopted by Mineworkers in South
Africa from 1st July 1997; to advance a sentimental view
that his client and her children should not be made to suffer by
preference of the applicant
The fact of the matter is that the Roman Dutch Law
principle on which the stipulatio alteri is based is part of the Law
and cannot be shifted aside by regulations. The Employment
Bureau of Africa Limited cannot legislate for the Kingdom of Lesotho.
The law as set out in Ramahata above is trite and has been followed
ever since. See Valentina Kaphe vs TEBA & Anor 1991-2 LLR
LLB pg 16. See also CIV/APN/152/90 Rakoto vs KATIBA & TEBA
(unreported) at p 6 where it is stated:
" where an employee working for a company such as
the second respondent chooses who should benefit in the
of his death; such a person becomes the beneficiary by
virtue of the stipulation and nothing else; and if there
satisfaction as to the identity of such a person it
what the name is and what the relationship she has with
This court cannot therefore deliberately overlook the
trite authority on the issue in favour of regulations which are in
with the sound precepts of that authority. Furthermore
evidence supplied by the custodians of the records of the 2ndrespondent shows that the deceased appointed the applicant as
his beneficiary finally. The applicant did not seek to hide that the
1st respondent had previously been so appointed. But what
is clear is that as he was entitled to, the deceased decided to
mind in favour of the applicant.
It is one of the basic fundamentals of the Law of
Contract preserved by the Common Law that men are free and at liberty
to enter into
contracts without any hamstrings. It would indeed go
against the grain if in the same society some class of people are
from achieving their goals in contracts while others are
not. That would be flawed as discriminatory and therefore
I accept Mr. Phafane's submission that the promulgator
of the regulations relied on by 1st respondent cannot
change the law of this Kingdom. The regulations cannot be allowed to
affect what a mature man wants to do under
a contract or who he wants
to benefit therefrom. Suffice it to say the contract signed by the
9 is clear and takes no account of the regulations.
Furthermore the court is not unmindful of the fact that
the man who made the regulations is not a party to this contract thus
cannot affect the stipulatio alteri appearing therein.
The court's attention has been drawn to the fact that an
extra set of papers in the shape of what is termed supplementary
have been filed on behalf of the 1st respondent
as late as 16th August, 2001 without even the courtesy of
asking for leave of Court. That is unacceptable. Those papers are not
to be treated as
part of proceedings in this matter.
This court is not oblivious of the words of Ackerman J.A
in Strong Thabo Makenete vs Major General Lekhanya and ors 1991-92
LB p. 126 at 127 that "Rules of court are not
unimportant and cannot just be disregarded at will ...." with
the hope that
"non-compliance will simply be overlooked or
condonation granted as a matter of course or right...".
The 1st respondent having challenged the 2nd
respondent as well chose not to call the deponent to give viva voce
evidence and be cross-examined on the vital issue where fraud
alleged. In the circumstances the court is at large to conclude that
the deceased was just as much at large to change his mind
of the applicant a month before he died as he was to do so a minute
or two after deciding that his wife would be the beneficiary.
Molapo in the course of arguments submitted that the sets of
contracts presented before court by main contestants as reflected
"B" and "M2" respectively raise a
serious dispute of fact and consequently the applicant's case should
I have pointed out that notwithstanding the perceived
dispute learned counsel did nothing when asked by court what he
In the result the 1st respondent could not
make any headway regard being had to the dictum of Gaunlett J A in C
of A (CIV) 18/98 Lesotho Hotels International
vs. the Minister of
Tourism etc and 3 ors (unreported) at p. 11 as follows:
"The appellant in these circumstances, given the
dispute of fact in the third category of the decision in Room Hire
vs Jeppe Street Mansions Pty Ltd 1949 (3) SA at 1163,
should have sought a referral to oral evidence [to request court] to
on that basis and grant final relief (Plascon - Evans Paints
Ltd vs Van Riebeeck Paints Pty Ltd 1984 (3) SA 623 (A) at
In Plascon at 635 above Coobett JA said "If in such
a case the respondent has not availed himself of his right to apply
deponents concerned to be called for cross examination"
where "the court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed on the basis of the
correctness thereofand include this fact among those upon which
it determines whether the applicant is entitled to the final relief
which he seeks. .
Suffice it then that I take it that the 1st
respondent failed to avail herself of her right to call the custodian
of 2nd respondent's records at her own peril.
Consequently the application is granted with costs
against 1st respondent only.
M.L. LEHOHLA JUDGE
Applicant's counsel : Mr. S. Phafane
1st Respondent Counsel : Mr. L.D. Molapo 2nd
Respondent's Counsel : Mr. Malebanye
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