IN THE HIGH COURT OF LESOTHO
In the matter between:
RAMETSE MPHANYA Applicant
METROPOLITAN LESOTHO LTD 1st Respondent
METROPOLITAN SCHEME 2nd Respondent
CORAM: HON. HLAJOANE J
DATE OF HEARING: 12TH FEBRUARY, 2013.
DATE OF JUDGMENT: 30TH APRIL, 2013.
Applicant an employee of the 1st Respondent – It was mandatory that he be registered with the Medical Aid Scheme with the 1st Respondent – Applicant not being paid a fixed salary but commission – Applicant claiming he had not been paid by Medical Aid but defence being he was not entitled to payment as that was during the time Applicant was not productive – applicant relying on what he said was a “top up” and “retention”. No proof of what Applicant alleged as terms of the contract. Application dismissed and no order for costs.
Russel v De Freitas 1974 – 75 LLR 393
 The prayers set out in the Notice of Motion were the following:
1. That rule nisi be issued returnable on the date to be determined by this Honourable Court calling upon the respondent to show cause, if any why:
(a) Rules pertaining to notices and service be dispensed with an account of urgency of this matter.
(b) An order shall not be made declaring the decision of withholding applicant’s Medical Aid money null and void.
© An order shall not be made ordering respondents to pay applicant’s severance pay and pensions.
2. 1st Respondent or their servants shall not be restrained or interdicted from terminating applicant’s policies pending the finalization of this application.
3. Alternatively, directing the respondents to determine and pay applicant’s Additional Disability Cover.
4. Costs of this Application.
 Before dealing with the application, it would be interesting to note that the applicant chose to abandon prayer 1© on payment of severance pay and pensions.
 Applicant has shown that he was employed by the first respondent on the 1st July, 2005 as an agent consultant to recruit clients on an indefinite and pensionable contract. He further said as an employee of the first respondent, it was mandatory to have a Medical Aid scheme with first respondent, his employer, when he was productive.
 It has also been the applicant’s case that as an employee of the respondent, it was also mandatory to register with a programme called Qualsa’s Disease Management Programme once an employee happened to be diagnosed with HIV/AIDS or diabetes.
 That it was around February 2006 when applicant said he was tested HIV positive and he boldly declared his acquired status to respondent’s relevant authorities. He thus produced medical evidence as proof of his status. And as a result applicant was made to register with Qualsa’s Disease Risk Management Programme during the month of June 2007 and that has not been denied by the respondents.
 When he so registered with the Medical Aid Scheme applicant said he was still productive. He further indicated that owing to the disability germane from the contracted status he qualified to additional cover with his family.
 Applicant claimed that he had not been paid an amount of M31,515.54 for the period of August 2007 to May, 2008. To the defence by the respondent that applicant was not entitled to the amount claimed as it was during the time he was not productive, applicant showed that it was mandatory for the employer, first respondent, to make “top up payments” in times of covered crisis owing to unproductivity due to illness of HIV/AIDS. That first respondent contributed to the Medical Scheme for the applicant pursuant to the provisions of the contracted services.
 The respondents’ case on the other hand has been that, true enough the applicant was their employee ad had registered for their Medical Aid Scheme. However, the Medical Aid Scheme would only remain active so long as the employee was contributing towards same.
 It was common cause that applicant was not being paid a fixed salary but by commission depending on the work done. Per Annexure “MA” attached to the applicant’s papers for the months of November and December 2007 applicant was not earning any commission as his net remuneration has been reflected as zero.
 Respondents did not argue when it was said that in cases of such crisis applicant would be assisted with a payment of what they termed “top up” from the first respondent as reflected in Annexure “MA”. But the respondent said that was not a full indemnity as applicant would still during that period when his net remuneration became zero and “top up” made the refund would still be in favour of the employer, in this case the first respondent as the one who had paid the installments.
 That according to the first respondent it was the reason why when the payments for incurred expenses were made applicant was paid what was considered due to him and the premiums paid to the scheme by the first respondent were refunded to it.
 As shown earlier on, applicant at para 4.4 of his founding affidavit has shown it was mandatory for an employee of first respondent to have Medical Aid Scheme with Metropolitan when only he is or was productive.
 He has also shown it was also mandatory that once employee was tested HIV positive he had to register with named Disease Management Programme. That programme according to the applicant was to ensure that the premiums would remain protected and unaffected by inability of being unable to get salaried commission during the period of illness. Also that the facility above would in turn be reimbursed by the money termed “retention” which formed 50% of the commission, but which would be the money the employer retains for such unfavourable times.
 But to be remembered in these proceedings would be the fact that we are dealing with motion proceedings where a litigant must be aware that he will stand or fall by what is contained in his affidavits which constitutes evidence, Russel v De Freitas.
 What applicant has averred has not been born out by any documentary proof for the Court to be certain that what he alleged were indeed what the terms of the conditions of his engagement envisaged.
 Going by the sequence of the Annexures attached to the founding papers as described by the applicant “MA” indicates that the Medical Aid covered applicant’s spouse as well, para 4.8 of the founding affidavit.
 “MB” shows that applicant also qualified for Additional disability Cover with his family as he had registered with the Medical Aid Scheme whilst productive.
 “MD” according to the applicant at para 4.13 of his founding affidavit is a letter from Metropolitan Medical Scheme as evidence that the Medical Aid was made active following its lapse due to non performance at his instance. But my reading of that letter says “we have pleasure in welcoming you as a new member of the Metropolitan Medical Scheme” and it is dated 19th August, 2008. New member can never be a revival.
 “ME” is a correspondence as a response from Council for Medical Schemes after the applicant had written to complain about what he called defaulting Medical Aid.
 “MF” is the response by Metropolitan Medical Scheme to the Council for Medical Schemes explaining that applicant’s contributions, though he was a registered member were being paid by Metropolitan Life (Lesotho) on applicant’s behalf hence the refund to first respondent for periods August 2007 to May 2008 for the amount of M31,518.54.
 “MG” has been a remuneration statement reflecting twelve months transactions, which applicant claimed has neither been paid to him nor paid to his doctors. But my reading of the annexure I see an amount of M6,144.48 as funds transfer.
 “MH” is said to be remuneration statement differing from “MG” which indicated the stopping of contributions. Applicant then said the Medical Aid continued being active from December 2008 to February 2010 when he resigned from Metropolitan. He has even attached his letter of resignation “MJ” dated 6th February, 2010.
 “MI” is the statement by applicant reflecting how much he still owed Maluti Adventist Hospital where he and his wife were receiving treatment on credit.
 “MK” reflecting additional amounts still owing for eye treatments.
 As can be seen from the tabulated Annexures shown above non of them reflected the terms of contract to substantiate what the applicant has alleged in his papers. It has not been clear as to how the “top up” was supposed to have worked.
 As for what the applicant termed as “retention”, the Court has not been referred to anything in the papers to support that except the say so by the applicant in his papers.
 Applicant has only been able to tell this Court that as an employee of the first respondent it was mandatory that he had a Medical Aid Scheme with Metropolitan when he was productive, but we have learned from the papers that there had been a time when he was not productive due to ill health.
 Applicant had also said he attempted to resign in October, 2009 but such request was not approved, hence why he then resigned in February, 2010. But the respondent has the letter for resignation dated 25 September, 2009 applying for resignation as at 1st October 2009. That resignation was approved by Metropolitan on Annexure “MMS3” showing type of withdrawal as resignation of 1st October 2009. That has also been signed by the applicant as a member.
 For the reasons shown above the Court finds that applicant has failed to make out his case in terms of the prayers set out in his Notice of Motion.
 The application is thus dismissed but I will make no order as to costs since the applicant is already sickly and seemed to have had such high expectations that he was going to get his monies under the scheme and awarding costs against him might cause him more hardship.
A. M. HLAJOANE
For Applicant: Mr Lephuthing
For Respondents: Mr Setlojoane
1974 – 75 LLR 393
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