C OF A
(CIV) NO.23 OF 2001
question that arises in this appeal is whether the late Thabo Motokoa
appointed his wife, namely the Appellant or his father,
Respondent as a beneficiary in respect of insurance benefits in the
event of his death.
Court decided the question in favour of the Respondent.
Respondent relies on the alleged contract of appointment Annexure "B"
dated 27th May 1998. The Appellant on the other
hand relies on the
contract of appointment Annexure "M2" bearing the same
date. The main difference in the two annexures
is that Annexure "B"
on which the Respondent relies has hand-written alterations which
have not been signed for contrary
to the provisions of Section 154 of
the Labour Code Order 1992.
"M2" on the other hand is a clean type written contract
which was signed by the deceased in favour of the Appellant.
circumstances the court a quo was therefore to enquire and if
possible to determine which version was the more probable
onus of proof. This the court failed to do and in our view it erred.
facts, it is our view that the findings by the court a quo that the
contract Annexure "B" reflects the Respondent
deceased's beneficiary was not supported by the evidence before the
court. On the contrary Annexure "M2" is clear
the deceased appointed the Appellant as his death beneficiary.
result the appeal is upheld with costs. The judgment of the court
below is set aside and substituted with the following order:-
"The application is dismissed with costs."
1 C of A
(CIV) No. 23 of 2001
COURT OF APPEAL OF LESOTHO
stated, the central question posed in this appeal is whether the late
Thabo Motokoa (hereinafter referred to as the deceased)
wife (the Appellant) or his father (the Respondent) as a beneficiary
in respect of insurance benefits in the event
of his death. The High
Court decided the question in favour of
present Respondent who was the Applicant thereat. Hence the appeal
It is now
opportune for me to deal with the relevant facts of the case which,
as I see them, are quite simple and can shortly be
stated as follows:
death on the 2nd May 1999 the deceased had at all material times been
in the employ of Anglo Gold Vaal River at Vaal Reefs
Limited. It is common cause that on the 14th July 1997 the deceased
appointed his wife - the present Appellant -
as his death
beneficiary. It is the latter's case that the deceased appointed her
again as his death beneficiary on the 27th May
1998 as per contract
Annexure "M2". As I see it, therein lies the point of
departure between the parties. The Respondent
claims that on the same
date the deceased appointed him as his death beneficiary as per
contract Annexure "B" The court
was therefore to enquire
and if possible to determine which version was the more probable. In
doing so it also had to consider
who bore the onus of proof.
indicated above the Court a quo accepted the applicant's (now
Respondent) version expressing itself in the process as follows:
"The annexure (Annexure "B") reflects the applicant as
the beneficiary in respect of insurance benefits accruing
in terms of
the contract in the event of Thabo's (deceased) death. The 2nd
respondent (namely the Employment Bureau of Africa Ltd.
thus contractually bound to transmit benefits to the applicant upon
question that arises in this appeal is therefore whether the Court a
quo was justified in arriving at the conclusion set out
preceding paragraph. It is the Appellant's case that the Court a quo
completely misconstrued the true effect of the annexures
as well as the proper test to be applied to disputes of fact in
motion proceedings. Indeed I observe that, in so far
as the latter
aspect is concerned the learned Judge a quo merely concerned himself
with the fact that the Appellant (who, as will
be remembered, was the
Respondent thereat) failed to avail herself of her right to call for
cross examination of the deponents
concerned "at her own peril."
I return to this aspect later. However, first, I discern the need to
examine the true import
of the annexures relied upon by both parties
in support of their respective claims of their alleged appointment by
as his death beneficiary.
at the outset that Annexure "B" on which the present
Respondent relies suffers from the fatal defect that his
not appear under the column "Death Beneficiary." It only
appears under deceased's father's name. Significantly
name 'Marorisang, on the contrary, appears under the column "Death
Beneficiary." This, in my view, clearly
lends credence to the
Appellant's version that she is the one who was appointed as the
deceased's death beneficiary and not the
Respondent. This again is
consistent with the fact that the deceased had admittedly appointed
her his death beneficiary on the
14 July 1997 as previously stated.
observation is no doubt required to be made. It is that a clumsy
attempt has been made to insert in Annexure "B"
following hand-written alterations under "Death Beneficiary"
'Marorisang's address: "Motlatsi - Father Divorce
-R4000.00 to follow." (See in this regard a copy of Annexure "B"
attached to this judgment). These alterations
once more suffer from
the fatal defect that they are not signed for. The necessity for a
signature to alterations in a contract
is no doubt designed, as far
as possible, to prevent the perpetration of fraud, uncertainty and
speculation especially where the
party to the contract is no longer
alive and the witnesses may no longer be alive or available to
what actually happened when the contract under consideration was
executed. See Mellvill and Another NNO v The Master and Others
(3) SA 387(C). Although that case was concerned with a will, the
principle it laid down applies with equal force to the present
in so far as the avoidance of fraud in a contract is concerned.
Da Silva v Janowski 1982 (3) SA 205 (A) at 218 Diemont JA adopted the
following remarks of Roper J reported in Sonfred
(Pty) Ltd v Papert
1962 (2) SA 140 (W) at 145:-
"The chief significance of a signature to a document of
obligation is that it is evidence of the fact of consent by the
and in order that he may be bound it is necessary that he
shall have affixed his signature with the intention of binding
When a defendant is sued upon a document, therefore, the
cause of action is not his signature, but the acceptance of
of which the signature is evidence, and the cause of
action must be proved by the plaintiff, as it is the foundation of
remarks are, in my view, apposite to the instant matter.
significant that the Appellant challenged the above-mentioned
hand-written alterations relied upon by the Respondent in the
following words in paragraph 6 of her opposing affidavit:
of the hand writings thereon, hand (sic) writings such as "MOTLATSI
- FATHER DIVORCE- 07/01/99 - R4000.00 TO FOLLOW
AND BH 683 922".
These hand writings have been inserted by fraud and with specific
intention to mislead the Honourable Court.
It is only proper that
these hand writings should be expunged from the form, otherwise this
renders the form a nullity. I wish
to annex genuine copies of the
contract dated 14th July 1997 and the one dated 27 May 1998.
Marked 'M2' collectively, all these contracts have me as the wife and
beneficiary of the deceased Thabo Motokoa."
It is a
matter of concern that the Court a quo failed to make any findings
whether or not the hand-written alterations in question
Appellant's version have been brought about fraudulently, regularly
or irregularly and on whom the onus rested to establish
and enforceability of Annexure "B". In so doing the Court
erred. In my view it failed to apply its mind
to these crucial
aspects of the matter and thus misdirected itself. In addition to the
above, I point to the provisions of the
Labour Code Order, 1992.
Section 154 provides that foreign contracts must be written, attested
and registered and signed by the
employee and the employer. This
provision also does not appear to have been complied with ex facie
the contents of Annexure "B".
of addressing the real issues as set out above, the learned judge a
quo proceeded to criticize the Appellant in his judgment
"There is a strong undercurrent of belief in the Ist
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."
respect, the learned judge a quo's remarks quoted above are an
unjustified attack on the Appellant who, as I read the record
proceedings, clearly based her case on Contract Annexure "M2"
in which her name appears as deceased's death beneficiary.
In my view
if anybody is to blame in these proceedings, in this context, it must
surely be the Respondent himself who sought to
conceal the marriage
between the Appellant and the deceased. In paragraph 8 of his
founding affidavit the Respondent actually referred
to the Appellant
as the deceased's "girl-friend". He even went to the extent
of concealing the Appellant's true names,
preferring instead to cite her by her maiden names, Sehlomeng Mota.
More importantly, as will become apparent
shortly, he failed to
disclose the material fact that he did not rely on contract Annexure
"B" when he sought the deceased's
benefits from the Mine
Workers Provident Fund. Instead he relied on an "affidavit of
it appear to me that the Court a quo was alive to the fact that, as
the applicant in the court below, the Respondent actually
onus to show that Annexure "B" on which he relied,
a valid variation of the contract between the deceased and the
Employment Bureau of Africa Ltd. See Stocks & Stocks
(Pty) Ltd. v
T.J. Daly & Sons (Pty) Ltd 1979 (3) SA 754 (A) at 762 G-H and
765. See also Da Silva v Janowski (supra) at 218-219,
Needless to say
that the Respondent failed to discharge such onus. He failed to
explain the hand-written alterations on the face
of Annexure "B"
and how it came about that they were not signed for, more especially
by the deceased himself. Had the
learned Judge a quo been alive to
the principle that the question of onus is of fundamental importance
in a matter such as this,
I have no doubt that he would have reached
a different conclusion. In my view, he erred in placing an obligation
on the Appellant,
as he did, to call for cross-examination of the
deponents concerned. If such an obligation existed at all, it rested
on the Respondent
who relied on a contract which, prima facie,
appeared to be flawed.
"M2" relied upon by the Appellant on the other hand is
exactly identical, word for word, to Respondent's Annexure
but for the hand-written alterations referred to above. It is a clean
typewritten contract in which the deceased
the Appellant as his death beneficiary. Moreover it was signed on the
same day as Annexure "B".
factor which must be placed in the scale when evaluating the
probabilities is the fact that in all the previous contracts
the deceased and the Employment Bureau of Africa Limited, no
hand-written alterations were made. Each time a renewal was
fresh contracts were prepared in typewritten format. I refer in
particular to the contracts dated 14/07/97, 2/05/98 and
(Annexure "M2"). In this regard it becomes pertinent to
observe, therefore, that the Appellant's averment in
paragraph 9 of
her opposing affidavit has remained uncontroverted when she says the
"I aver that if the deceased intended to change his death
beneficiary, there are appropriate forms for that purpose."
Appellant insists that the hand-written alterations in question "are
judgment the court a quo made the following findings which call for
"Furthermore evidence supplied by the custodians of the records
of the 2nd respondent shows that the deceased appointed the
as his beneficiary finally. The applicant did not seek to hide that
the Ist respondent had previously been so appointed.
But what is
clear is that as he was entitled to, the deceased decided to change
his mind in favour of the applicant."
respect, the learned judge a quo's approach was flawed principally
for two reasons:
the Respondent's case as fully set out in his founding affidavit was
not based on the record of second respondent but purely
contract Annexure "B". That was the case which the
Appellant was expected to meet and which she duly met. It is
matter significant that she was never given an opportunity to deal
with any other issue relating either to the records
of the 2nd
respondent or the affidavit of the latter's deponent, Alina 'Mapuleng
Khitsane, which was filed subsequently to her
own opposing affidavit.
has been stated more than once that it is wrong to direct the
attention of the other party to one issue and then attempt
another in reply. See Frasers Lesotho Limited v Hata-Butle (Pty) Ltd.
1999-2J00 LLR & LB 65 (LAC) at 68. 'Malerotholi
Sekhonyana & Another v The Standard Bank of Lesotho Ltd 1999-2000
LLR & LB 416 (LAC) at 420-421, Imprefed (Ptv)
Ltd v National
Transport Commission 1993 (3) SA 94 (A) at 107 - 108.
requires to be stressed that in motion proceedings the court is
confined to resolving the dispute on the issues raised in the
founding affidavit. As a general rule, an applicant must make out his
case in the founding affidavit and the court will not allow
make out a
case and seek to rely on a new cause of action in reply as has
happened here. See AG v Michael Tekateka & Others C
of A (CIV)
No.7 of 2001 (unreported), Director of Hospital Services v Mistry
1979 m SA 626 (A) 635F - 636A.
there is no admissible evidence on record to show that the deceased
"changed" his mind in favour of the Respondent.
As I shall
endeavour to demonstrate shortly, a few illustrations will suffice.
compound Respondent's problem, it emerged from the opposing affidavit
of Alina 'Mapuleng Khitsane, an employee of the Employment
Africa Ltd. Mafeteng (Second Respondent in the Court below), that he
was merely given recognition as deceased's dependant
and not his
death beneficiary on the basis of Annexure "TBI" appearing
on page 48 of the record. This is a letter emanating
from the Mine
Workers Provident Fund who are admittedly the trustees of the fund
from which the death benefits in question were
to be paid.
letter is dated 28 July 1999 and is addressed to the Respondent. It
Alfred Motlatsi Motokoa
with regret that we were informed of the death of the above mentioned
member and we wish to extend our sincerest sympathy
acknowledge receipt of your affidavit of dependency and enclose
herewith our cheque in the sum of R 50700.60 representing the
payable to you in terms of the Mineworkers Provident Fund Rules.
mentioned claim is the full and final settlement of the death
TSAMBO ADMINISTRATION" (emphasis added)
self evident from Annexure "TBI" that the Respondent did
not, at that stage, purport to rely on any alleged contract
appointment such as Annexure "B". As I have stated above
and as I repeat now, he clearly sought to rely on a so-called
"affidavit of dependency". This fact lends additional
credence to the Appellant's version that he did so because he knew
fully well that he had no genuine contract of appointment as the
brings me to Annexure "TB3" attached to the opposing
affidavit of Alina 'Mapuleng Khitsane which appears on page
51 of the
record. Although that annexure purports to show the present
Respondent as the deceased's death beneficiary it once again
from the fatal defect that it does not bear the signature or mark of
the deceased anywhere. It is unsigned and cannot stand
as a valid
contract by the deceased evidencing the alleged appointment of the
Respondent as his death beneficiary. In any event
this annexure is
dated "1998/05/2" and would therefore clearly have been
superceded by the subsequent contract dated
the 27th May 1998 namely
Annexure "B" (barring the hand-written and unsigned
alterations referred to above) or by Annexure
light of the aforementioned considerations I am of the view that the
finding by the Court a quo that the contract Annexure
reflects the present Respondent as the deceased's beneficiary was not
supported by the evidence before the Court
a quo. On the contrary the
contract Annexure "M2" dated the 27th May 1998 is clear
proof of the fact that the deceased
appointed the Appellant as his
death beneficiary in the same way as he admittedly did on the 14th
July 1997. This conclusion disposes
of the matter on the authority of
this Court in Ramahata v Ramahata 1985-89 LAC 184. This is so
in my view, the Appellant has clearly established a stipulatio alteri
(contract for the benefit of a third party) between
the deceased and
the Employment Bureau of Africa Ltd. Such contract is to the effect
that she is entitled to accept the benefit
of this contract. It
follows therefore that the question whether or not she was lawfully
married to the deceased is irrelevant
in as much as her rights flow
from the contract in question.
It is my
view that the Respondent failed to establish on a balance of
probability that the deceased had nominated him as a beneficiary
per the contents of Annexure "B". Indeed on the papers
before court, the probabilities overwhelmingly favour the version
deposed to by the Respondent. It follows that the Court a quo should
have dismissed the application with costs.
result the appeal is upheld with costs. The judgment of the Court
below is set aside and substituted with the following Order:
at Maseru this 11th day of April 2002.
Appellant: Adv L.D. Molapo
Respondent: Adv S. Phafane
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