C OF A (CIV) NO.23 OF 2001
The question that arises in this appeal is whether the late Thabo Motokoa appointed his wife, namely 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 the Respondent.
The 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.
Annexure "M2" on the other hand is a clean type written contract which was signed by the deceased in favour of the Appellant.
In these circumstances the court a quo was therefore to enquire and if possible to determine which version was the more probable and who
bore the onus of proof. This the court failed to do and in our view it erred.
On the facts, it is our view that the findings by the court a quo that the contract Annexure "B" reflects the Respondent as the deceased's beneficiary was not supported by the evidence before the court. On the contrary Annexure "M2" is clear proof that the deceased appointed the Appellant as his death beneficiary.
In the 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."
JUDGE OF APPEAL
1 C of A (CIV) No. 23 of 2001
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
SEHLOMENG 'MOTA APPELLANT
MOTLATSI MOTOKOA RESPONDENT
Held at Maseru:
CORAM: Steyn, P.
Broadly stated, the central question posed in this appeal is whether the late Thabo Motokoa (hereinafter referred to as the deceased) appointed his 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
the present Respondent who was the Applicant thereat. Hence the appeal before us.
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:
Until his 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 Mining Company 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.
As 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. Mafeteng) was thus contractually bound to transmit benefits to the applicant upon Thabo's death."
The question that arises in this appeal is therefore whether the Court a quo was justified in arriving at the conclusion set out in the preceding paragraph. It is the Appellant's case that the Court a quo completely misconstrued the true effect of the annexures in question 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 the deceased as his death beneficiary.
I observe at the outset that Annexure "B" on which the present Respondent relies suffers from the fatal defect that his name does not appear under the column "Death Beneficiary." It only appears under deceased's father's name. Significantly the Appellant's 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.
A further observation is no doubt required to be made. It is that a clumsy attempt has been made to insert in Annexure "B" the following hand-written alterations under "Death Beneficiary" 'Marorisang's address: "Motlatsi - Father Divorce - 07/01/99 -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 testify
as to what actually happened when the contract under consideration was executed. See Mellvill and Another NNO v The Master and Others 1984 (3) SA 387(C). Although that case was concerned with a will, the principle it laid down applies with equal force to the present matter in so far as the avoidance of fraud in a contract is concerned.
Indeed in 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 signatory, and in order that he may be bound it is necessary that he shall have affixed his signature with the intention of binding himself. When a defendant is sued upon a document, therefore, the cause of action is not his signature, but the acceptance of liability, of which the signature is evidence, and the cause of action must be proved by the plaintiff, as it is the foundation of the whole claim."
These remarks are, in my view, apposite to the instant matter.
It is 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:
have some 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.
These are 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 could on Appellant's version have been brought about fraudulently, regularly or irregularly and on whom the onus rested to establish the validity 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".
Instead of addressing the real issues as set out above, the learned judge a quo proceeded to criticize the Appellant in his judgment in the following terms:-
"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."
With respect, the learned judge a quo's remarks quoted above are an unjustified attack on the Appellant who, as I read the record of 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, 'Marorisang Motokoa, 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 dependency".
Nor does 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 bore the onus to show that Annexure "B" on which he relied,
contained 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.
Annexure "M2" relied upon by the Appellant on the other hand is exactly identical, word for word, to Respondent's Annexure "B" but for the hand-written alterations referred to above. It is a clean typewritten contract in which the deceased unequivocally appointed the Appellant as his death beneficiary. Moreover it was signed on the same day as Annexure "B".
A further factor which must be placed in the scale when evaluating the probabilities is the fact that in all the previous contracts between the deceased and the Employment Bureau of Africa Limited, no hand-written alterations were made. Each time a renewal was proposed, fresh contracts were prepared in typewritten format. I refer in particular to the contracts dated 14/07/97, 2/05/98 and 27/05/98 (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 following:-
"I aver that if the deceased intended to change his death beneficiary, there are appropriate forms for that purpose."
Hence the Appellant insists that the hand-written alterations in question "are but fraud."
In its judgment the court a quo made the following findings which call for comment:-
"Furthermore evidence supplied by the custodians of the records of the 2nd respondent shows that the deceased appointed the applicant 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."
With due respect, the learned judge a quo's approach was flawed principally for two reasons:
Firstly, the Respondent's case as fully set out in his founding affidavit was not based on the record of second respondent but purely on the contract Annexure "B". That was the case which the Appellant was expected to meet and which she duly met. It is for that 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.
Now, it has been stated more than once that it is wrong to direct the attention of the other party to one issue and then attempt to canvass another in reply. See Frasers Lesotho Limited v Hata-Butle (Pty) Ltd. 1999-2J00 LLR & LB 65 (LAC) at 68. 'Malerotholi Josephine 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.
It 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 him to make out a
different 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.
Secondly, 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.
To compound Respondent's problem, it emerged from the opposing affidavit of Alina 'Mapuleng Khitsane, an employee of the Employment Bureau of 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.
The letter is dated 28 July 1999 and is addressed to the Respondent. It says this:
"Mr Alfred Motlatsi Motokoa
Dear Mr Motokoa
DECEASED Thabo Motokoa
INDUSTRY NO W2241186
MINE Vaal River Operations
It is with regret that we were informed of the death of the above mentioned member and we wish to extend our sincerest sympathy
We acknowledge receipt of your affidavit of dependency and enclose herewith our cheque in the sum of R 50700.60 representing the benefit payable to you in terms of the Mineworkers Provident Fund Rules.
The above mentioned claim is the full and final settlement of the death benefit.
JORDAN TSAMBO ADMINISTRATION" (emphasis added)
It is self evident from Annexure "TBI" that the Respondent did not, at that stage, purport to rely on any alleged contract of 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 deceased's beneficiary.
This 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 suffers 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 "M2".
In the light of the aforementioned considerations I am of the view that the finding by the Court a quo that the contract Annexure "B" 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
because, 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 as 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.
In the 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."
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered at Maseru this 11th day of April 2002.
For Appellant: Adv L.D. Molapo
For Respondent: Adv S. Phafane