C. of A. (Civ) No.8 of 1986
IN THE LESOTHO COURT OF APPEAL
In the Appeal of:
'MALIMAKATSO RAMAHATA Appellant
also known as Nthabiseng Phephetho
THABISO RAMAHATA Respondent
HELD AT MASERU
Coram: Schutz P.
When this appeal was called there was no appearance for the Respondent. Before proceeding with the appeal we satisfied ourselves that both the Respondent's attorney and the Respondent personally had knowledge of the set down. At the conclusion of our hearing of Mr. Kuny, for the Appellant, this Court allowed the appeal with costs, and substituted for the order of the High Court the following order: The application is dismissed with costs. Our reasons now follow.
This is an appeal against a judgment of Kheola J. in the High Court. The Respondent succeeded in obtaining an order restraining the Appellant from calling herself the wife of the late Thabo Ramanata (the son of the Respondent),
restraining her from receiving payment of a sum of M6,000 or any other sums belonging to the estate of the late son, and restraining The Employment Bureau of Africa (the second Respondent in the application before Kheola J. - hereinafter "the Employment Bureau") from paying to the Appellant the sum of M6,000 or any other sums belonging to the estate of the late son.
In his founding affidavit the Respondent stated that his son was employed by the ERPM Angelo Mining Company of Boksburg at the time of his death on 13th May, 1985. He stated that at the time of his death the son was a bachelor and that he had not married either in a civil ceremony or by customary rites. Because the son had been a bachelor the Respondent contended that he was the sole heir in his estate. The Appellant was, so the Respondent said, nothing but a servant of the son. If they had been married he as the father would have known about it. He stated that the Appellant had already received M1,000 from The Employment Bureau, and that the latter would release to the Appellant ail funds "belonging to the estate" of the son. The Respondent's son Lets'abile Ramahata made a supporting affidavit in similar vein. He described the Appellant as "a mere girl friend" of the son.
Costs were not sought against the Employment Bureau in the event of its not opposing. The Employment Bureau did not oppose, but very properly made an affidavit setting out its relationship with the late son. The Appellant relied on this affidavit. Annexed to the Affidavit was the son's
employment contract. This contract reveals that the son named the Appellant as his wife. He also nominated her as his death beneficiary. The affidavit shows that the Employment Bureau acted as agent for the Rand Mutual Insurance Company in paying these benefits, and that the total benefits amounted to M6,000. An annexed letter showed that the Employment Bureau had made these facts known to the Respondent's attorney before the application was launched.
The Appellant stated that she had already received M1,000 in the form of death benefits and she claimed the balance also, all on the basis that these moneys did not form part of the son's estate. She said that she had married the son in 1980 and gave reasons why she could not produce a marriage certificate.
Khaola J. decided the matter on the footing that the real issue was whether there was a marriage, that the onus in this respect rested on the Appellant, and that she had failed to discharge this onus. Although I think that the marriage was a side issue, I would indicate that in my opinion the relevant onus rested on the Respondent. The foundation of this case was that the son was a bachelor, and this was placed in issue. The primary rule is that he who alleges must prove: Pillay v Krishna and another 1946 AD 946. This does not detract from the fact that the "onus" to rebut resting on the Appellant would have been a considerable one as much of the knowledge as to her status would be peculiarly within her knowledge. I also think
that it was wrong to decide such an issue finally on affidavit. Such an issue is one that should be tested in a trial. It must be emphasized that there are severe limitations on deciding disputed issues of fact on affidavit: see Plascon-Evans Paints Ltd v van Riebeeck Paints Pty Ltd 1984(3)S.A. 623(A), This is not the only case on this session's roll where a judge of the High Court has shown too great a readiness to decide disputed factual issues on affidavit. The limitations to which I have referred are based on long, and sometimes unhappy, experience. As it is often put, it is not for a court to decide which typewriter to believe. I would also add that in my opinion there was much more weight in the Appellant's version of her marriage than was accorded it by the judge a quo.
The judge rejected the Appellant's contention that she was entitled to the M6,000 not
by virtue of her marriage, but by virtue of her nomination as death beneficiary. The learned judge a quo opined that any claim would be governed by the Republican Insurance Act 27 of 1943, that there was no similar statute in Lesotho, and that the death 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 the son and the insurance company: 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 succeeded.
President of the Court of Appeal
I agree Signed:............................
Judge of Appeal
I agree Signed:............................
Judge of Appeal
Delivered at Maseru this 25th day of July, 1986.
For the Appellant : Mr. Kuny S.C., with him
For the Respondent : No appearance