HIGH COURT OF LESOTHO
MALERATO KAPHE applicant
EMPLOYMENT BUREAU OF AFRICA LIMITED 1st respondent
known as TEBA)
KAPHE 2nd Respondent
by the Honourable Mr. Justice J.L. Kheola on the 15th day of July,
the facts in this case are common cause. They are that applicant is
the wife of the late Tjabaka Kaphe who died on the 13th
They were married according to Basotho customary law but later went
through a church wedding on the 23rd December,
second respondent is applicant's mother -in-law. Three children born
of the marriage are in the custody of the applicant.
applicant received a death report (Annexure C to her founding
affidavit) on the 16th June, 1990 in which her name and the fact
she was the deceased's next of kin and deceased's wife had been
cancelled and the scond respondent had been shown as the deceased's
next of kin.
applicant was introduced to Chief Mohale Mopeli as the next of kin of
the deceased who died in the mines on the aforesaid date.
Mopeli wrote a letter of introduction to the first respondent stating
that the applicant was the next of kin. When the applicant
respondent arrived at the offices of first respondent one employee of
the respondent Selonyane and his colleagues put
thumbprint on the letter of introduction. Their reason for doing so
was that according to their records the second
respondent was the
deceased's next of kin. An amount of M2,000.00 was given to the
second respondent as deceased's burial expenses.
September 1990 a dispute arose because it appeared that applicant's
husband was treated as if he was not married. The applicant
one Thabo Kokome, an employee of the first respondent. When he
checked the records he found that the applicant's name had
cancelled without any explanation and that of the second respondent
substituted. She avers that she has been to the first
through Selonyane refuses to give her explanation. She asked for
access to the records because there is on the face
of things an
irregularity, but first respondent refused to allow her access to the
records. ' Her suspecion has been further increased
by the fact that
her Chief handed to her in July, 1990 a death report from the
respondents which she is shown as the next of kin of her husband (See
be observed that Annexures C and E were written and signed by the
same person. She finds first respondent's failure to give
information suspect. She avers that consequently she has no option
but to come to this court to help her find the truth by
first respondent to allow her full access to the records in order to
protect her interests and those of her minor children
custodian she is.
applicant avers that although Mr. Selonyane informed her that money"
' earmarked for the maintenance of the children is
there and that she
must bring a letter of introduction of the children, he now refuses
to hand over the money.
common cause that apart from the M2.000.00 for burial expenses
another large sum of money was given to the second respondent
death beneficiary.. Applicant avers that sum of money belongs to her
late husband's estate. The first respondent ought to
account for this
had all other monies belonging to the deceased' estate.
answering affidavit Leonard Moeletsi Selonyane avers that he is the
representative of the first respondent stationed at its
office. He admits that Applicant and second respondent came to his
office but he denies that he caused the second respondent's
fingerprint to be put on a letter introducing applicant as
next-of-kin. The only document upon
second respondent's fingerprint was imposed was a letter from first
respondent's headquarters (Annexure "LMSI")
and also on a
letter received from the District Secretary (Annexure "LMS2").
He avers that the records reveal that the
second respondent is the
beneficiary of a fatal accident and illness insurance policy scheme
and not as a next-of-kin. He admits
that the sum of M2.000.00 was
paid to the second respondent in accordance with Annexure "LMS1".
that it is not true that an explanation was not given to the Labour
Commissioner. Upon receipt of Annexure D to the founding
telephoned Mr. Nkopane and explained the situation to him. He
informed him that applicant must complete the relevant
form in which
she makes claim to a pension in terms of the South African Workmen's
Compensation Act. The applicant duly completed
the relevant form (See
Annexure "LMS4"). The completed form was duly sent off to
Rand Mutual Assurance Company Limited
who has now accepted the
applicant's claim (See Annexure "LMS5"). The letter was
received on the 25th February, 1991
after these proceedings had been
refers to Annexure "LMS6" which are copies of the cheques
which were sent to the first respondent by Rand Mutual
Company Limited. He confirms that these cheques have been deposited
and that the proceeds thereof should go to the applicant
but, in the
light of the present application which she has instituted, payment
will be deferred until the entire matter has been
decided upon this
Selonyane denies that he refused to give an explanation to applicant
and says that on several occasions a full explanation was
her and also to the Labour Commissioner. He admits that he refused
her access to the records of the first respondent because
she is not
entitled thereto even if she is the next-of-kin. The fact remains
that (Annexure "LMS7") in terms of which
respondent was appointed.
Kokome deposes that it is true that the applicant came to him. He is
a clerk employed by the first respondent. His functions
are to handle
claims for deferred pay. He has no authority to deal with anything
relating to insurance benefits or payment of pensions.
that when applicant came to him he checked the records and the only
record he checked was the employment recordcard
He denies that having checked the records he found that applicant's
name had been crossed out in the
records of the first respondent.
Thereafter he paid the applicant a sum of M527.00 as deferred pay.
Letlama Matlole is a clerk employed by the first respondent. He
deposes that his duties include, inter alia, the completion
reports relating to the death of mine labourers. He is the person who
wrote out Annexure "C" to the founding
affidavit and he is
the person who made the correction, thereon. He syas that when it was
brought to his notice that applicant's
husband had died he extracted
his employment record
(Annexure "TK1") and noticed that the applicant's name was
entered thereon as being the wife of the deceased miner.
immediately proceeded to complete the death report (Annexure "C").
Very soon thereafter the first respondent received
a telefax message
(Annexure "LM1") on which the name of the second respondent
was disclosed as the death beneficiary
of the deceased miner. He
therupon immediatley deleted the name of the applicant and wrote in
the. name of the second respondent.
When he did so he omitted to
insert a carbon between the original and the remaining copies of the
death report. This explains how
Annexure "C" shows the
crossing out and insertion of another name and why Annexure "E"
does not disclose same.
The latter annexure is the copy sent to the
Labour Commissioner for his records.
Russel) Rae is the Lesotho Manager of the first respondent. In his
answering affidavit he explains that when a miner is
recruited he is
required to complete a Service Contract and at the same time to
appoint a beneficiary who will upon his death receive
benefits resulting from the Chamber of Mines Fatal Accident and
illness Insurance Scheme. The scheme is administered by
Mutual Assurance Company Limited.
(3) and (b) read as follows:
the purposes of this Clause 3 "beneficiary" shall mean a
person nominated as a beneficiary in respect of the benefit
this policy by the employee in writing received by the employer.
employee may at any time revoke his nomination of any beneficiary
without such beneficiary's consent by notifying the employer
wishes in writing. Each nomination of a beneficiary by the employee
shall be deemed to revoke all prior. nominations by
unless the contrary intention appears from the terms of the
Maqutu, attorney for the applicant, has submitted that though the
applicant is entitled to claim under the South African Workmen's
Compensation Act, she ought equally to be entitled to the benefit
under Annexure "LMS7" because her late husband never
nominated the second respondent as his death beneficiary. Applicant
is the beneficiary ex lege.
submitted that the name "Matjabaka" has been fraudulently
inserted to replace that of the applicant on form "LMS7".
It is in differenct handwriting from the rest of the document.
Clearly showing this insertion was suspect. Service contracts that
were executed prior to "LMS7" all indicate-'Malereko as the
beneficiary. (See Annexures "G", "H"
to the replying affidavit of the applicant). He submits that M.
MAHULA who is alleged to have signed the employment
contracts has had
his name printed and his signature on "LMS7" differs from
that on Annexures A and J. He submitted that
the onus of proving
absence of forgery is on the respondents.
be noticed that in her founding affidavit the applicant's main
complaint was that the first respondent, through its employees,
crossedout her name on the records and had inserted the name of the
second respondent on its records regarding her late husband.
deposed that Mr. Kokome had told her about the crossing out of her
name on the records. Mr. Kokome has denied this and has
when the applicant came to him the only document he needed to do his
work was Annexure "TK1" which has no
cancellations of the
applicat's name. I have checked Annexure "TK1" and have
found that the name of the applicant has
not been crossed out.
common cause that on one death report there is a crossing out of the
name of the applicant but there is no such crossing out
copy which was received by the applicant through her chief. Mr.
Matlole has explained in detail how the omission to
cross out the
name of the applicant came about. He forgot to put a carbon when he
made the alteration after receiving the telefax
which indicated that
the death,beneficiary was the second respondent.
to me that whatever the mistakes Mr. Matlole made when he reported
the death of the applicant's husband cannot change the
document which was signed by him when he was recruited, That document
is Annexure "LMS7",the service contract.
It shows that the
appllcant's husband appointed his mother, the second respondent, as
his death beneficiary. The entire document
in capital/block letters except the name of the second respondent as
death beneficiary which is in cursive handwriting.
It was suggested
on behalf of the applicant that space was left blank and was
subsequently completed afger the applicant's husband
had signed the
It is not
clear when this fraud is alleged to have, been done. What is clear is
that the service contract was signed on the 28th
March, 1990 and that
on the 13th June, 1990 when he died the records of the Rand Mutual
Assurance Company Limited indicated who
the death beneficiary was. I
am sure that the servie contract would have been queried by the
Labour Agent who signed it on the
28th March, 1990 if a blank space
was left where death beneficiary ought to have been shown. If cursive
handwriting was not to
be used the labour agent would have queried
the form. But the service contract seems to have been accepted by all
the parties including
the Rand Mutual Assurance Company Limited as
scrutinized the employment contrct and have noticed no trace of any
erasure in the space provided for the name of the death
However, I cannot finally decide this serious allegation of fraud on
Koornhof,attorney for the first respondent, submitted that the
applicant alleges fraud on the part of the employees of the first
respondent. The onus to prove such a serious allegation is heavy and
cannot be discharged by a way of affidavit. I agree with that
submission because I find no reason why the employees of
respondent suddenly decided to defraud the applicant with whom they
had not had any misunderstanding and against whom
they had no grudge.
It is not enough to rely on an obvious mistake in an attempt to
establish fraud. The difference between Annexures
"E" has been fully explained by Mr. Matlole.
I do not
agree with the submission that the applicant's late husband did not
appoint' death beneficiary in writing because a separate
necessary for that document. It could be that it would have been
ideal but that does not mean that there was no compliance
3 (3) (a) of the insurance policy. The service contract is in writing
and it was in that contract form that the applicant's
nominated his mother in writing as his death beneficiary.
submitted on behalf of the applicnt that in the three contracts of
service preceding the present one the applicant's late
appointed the applicant as his death beneficiary. Clause 3 (3) (b) of
the policy authorises the miner to revoke his
nomination of any
beneficiary without such beneficiary's consent by notifying the
employer of his wishes in writing. That is exactly
applicant's husband did. It is also a term of the insurance ,policy
that each nomination of a beneficiary by the
employee shall be
deemed to revoke all prior nominations unless the "contrary
intention appears from the terms of the nomination.
The applicant has
failed to show such contrary intention.
Koornhof has submitted that the applicant raises certain issues which
can only be resolved by oral evidence. He refers to paragraphs
(b), 5.4 and 5.5 which read as
"5.2 (b): In the above premises the fact that the crucial
section nominating a beneficiary was left blank and filled
circumstances without any signature or initialling does
not conform with the principles governing insurance policies..
5.4 The difference of writings in "LMS7" has not been
explained has it beenexplained who filled it up and why the writings
on "LMS7" are different. None of the people who were
present when "LMS7" was thumb printed have made affidavit.
5.5 It is definitely not clear that Second Respondent was nominated
beneficiary as Messrs Rae, Selonyane and Matlole suggest because
the face of LMS7" the portion nominating' beneficiary was filled
by an unknown person in a different handwriting-. That
being the case
"LMS7" was not all Filled and interpreted at the same
said that there is no evidence that the crucial section nominating
the beneficiary was left blank. I have said that the mere
the section was filled up in cursive handwriting does not necessarily
mean that it was filled up at a later . stage and
by a different
quite correct that the people who were present when Annexure "LMS7"
was thumbprinted have not made any affidavits.
Prayer 1 (d) of the
Notice of Motion directs the first respondent to disclose all the
papers signed by the deceased on the basis
of which the death
benefits were given. In reply to this the first respondent disclosed
the following documents:
telefax (Annexure "LM1").
serive contact (Annexure "LMS7").
letters Annexures'"LMS1" - "LMS5"(inclusive).
Record Card (Annexure "TK").
replying affidavit the applicant alleges that a number of the
documents disclosed by the first respondent were fraudulently
to me that having received the answering affidavit and its annexures
the applicant ought to have reco-sidered her position
raising serious issues in a replying: affidavit. She could have
applied that the matter be converted into a trial or
she could have
instituted an action while the interdict remained in force. I am of
the opinion that this is an application in which
the applicant should
have realized when lauching it that a serious dispute of fact was
bound to develop. In her founding affidavit
she accuses the first
respondent's employees of fraud by deleting her name in their records
and substituting that of the second
respondent. She deposes that Mr.
Selonyane refused to give her an explanation. she should have
realized that ahe could never admit
that he refused to serve a person
he was expected by his employer to help. They could not accept any
the question of law Mr. Maqutu submitted that clause 3 (3) (4) of the
insurance policy is void in so far as it is contra
bones mores the
traditions of the Basotho Society. Such benfits must be part of the
deceased's estate. I think the law
settled by our Court of Appeal in 'Manthabiseng Ramahata v. THABISO
Ramahata.c- of A. (CIV) No. 8 of 1986 (unreported) at pp.
Schutz, P. said:-
"The Judge rejected the Appellant's contention that she was
entitled to the. M6,000 not by virtue of her marriage, but by
of her domination-as death beneficiary. The learned Judge a_ quo
opined that any claim would be governed by the Republican
Act 27 of 1943, that there was no similar statute in Lesotho, and
that thedeath benefits would pass, to the son's deceased
estate. I do
not agree with this reasoning at all. In passing I would point out
that foreign law cannot be disregarded where it
is the proper law in
a case. If it be such It will ordinarily be given effect to.
This case is a simple one. The Appellant has established a stipulatio
alteri (contract for the benefit of a third party) between
and the insurance company: See e.g. See e.g. Croce v. Croce 1940 TPD
251. The institution of . stipulatio alteri, by virtue
of being 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 M6.000 has nothing to
do with the . deceased estate. For these reasons the appeal
of Rule 8 (14) of the High Court Rules 1980 the rule nisi is
discharged with costs.
Applicant - Mr. Maqutu
Respondent - Mr. Koornhof
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