IN THE HIGH COURT OF LESOTHO
In the matter between:
'MANNUKU NKAMA APPLICANT
THE MASTER OF THE HIGH COURT 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent
LESOTHO FLOUR MILLS 3rd Respondent
KAMOHELO NKAMA 4th Respondent
BOARD OF TRUSTEES 5th Respondent
MOEKETSl NKAMA 6th Respondent
PABALLO NKAMA 7th Respondent
Delivered by the Honourable Mr. Justice T. Monapathi on the 22nd day of January 2003
The Applicant of wife of the late Khopiso Nkama (the deceased) who died in December 1995 who was then in the employ of the Third Respondent. The Fourth Respondent was the eldest son of the family. The two other sons of the deceased out of the six children were joined in this proceedings as the Sixth and Seventh Respondents and agreed to abide by judgement of Court as First and Second Respondents likewise did not oppose. The Fourth Respondent had conceded that he had been unable to perform his functions as guardian of the minor child 'Mathapelo despite his appointment
This is an application in which the Applicant asks this Court to dissolve the pension fund of her late husband in order that the money be paid to her as a dependant of her husband in terms of the pension fund rules, as against her six children who had been nominated by the Deceased. It is common cause that the six children were so nominated. In terms of the Rules of the Fund one's dependents includes one spouse.
This claim of the Applicant is not quite consistent with the impression created on the face of Notice of Motion. It does not particularly appear to concern itself more with the share that was due to the minor child 'Mathapelo as against what was later revealed in argument and in the statement contained in the certificate of urgency. The argument seemed to be out of synch with the prayer for dissolution of the fund which is the prayer 1(c) of the notice of motion.
In the main the basis of the Applicant's claim is that she is unable to pay for the fees, clothing and care of the only minor child 'Mathapelo and the latter being the only unmarried child of the family. And that the First Respondent should transfer to Applicant funds due for the said upkeep of the said minor child. This is in addition to that, as Applicant claims, the proceeds of the pension fund should have been paid to her as she is dependant of the Deceased
in terms of the pension fund rules and she was wrongfully not nominated by the Deceased. No mention had been made of the Applicant who was said to have been working in the Republic of South Africa.
Applicant further contends that the nomination form that her husband the Deceased allegedly filled was not in the Deceased's handwriting and the Board of Trustees should not have disbursed the monies other than to the Applicant herself. It is however not quite common cause that Applicant's husband never wrote for himself and the employers could not have known his writing. Applicant did deny and it is not uncontroverted that the relevant form was brought to Deceased's workplace by him. It is however not denied that the same form was relied upon by the Board of Trustees to distribute death benefits. It is the same form which was relied upon to distribute the death benefits.
Applicant said further that after the death of the Deceased Sanlam duly paid the benefits to the Third Respondent as shown by the annexure "MN 6". The Third Respondent then proceeded to pay out the money subject matter of the fund on the basis of a nomination form alleged to have been filled by the Deceased. See annexure "MN 4". In the said form, which the Applicant challenges, division of the money was made equally among the children of the Applicant and the Deceased in equal parts of 16.4% each. It is this part or share
which belong to the youngest child 'Mathapelo in terms of that arrangement which was paid to the First Respondent per annexure "MN 2" which is the subject of the application despite the generality of the prayers in Notice of Motion. Although this tendency was persisted with in argument the Certificate of Urgency confirms the claim for 'Mathapelo's share was the intended substantial thrust of the claim.
During his lifetime the Deceased had entered into pension fund with Sanlam Insurance Company. The resulting fund was controlled and administered by the Fifth Respondent on behalf of the Third Respondent. The objectives of the fund are contained in its rules. See annexure "FM1".
In its opposing papers the Third Respondent indicated that it was not responsible for the disputed funds and that the Fourth Respondent was in fact the right body to be sued inasmuch as it was incorporated and had a distinct and separate identity from Third Respondent. It had, despite that, proceeded to file opposing papers on other facts. Applicant accordingly applied to this Court to join the Fifth Respondent. This was granted by the Court.
I found no merit in Applicant's two points raised in order to non-suit the Fifth Respondent. The two points were by agreement argued together with the
Firstly, it was argued that Puleng Lebitsa, the deponent, a member of the Fifth Respondent was not empowered or authorized by resolution to act on its behalf or make any affidavits on its behalf. Nor was there a resolution to oppose present application. Applicant cited the case of RT Morrison (Pty) Ltd v Belle 1981 (1) LLR 206 in its challenge. The Fifth Respondent's resolution, indeed does not refer to the deponent who is Financial Controller but the resolution directs that the chairperson should appoint a person capable of representing the Fund.
Secondly, it was argued by Applicant that there was no evidence of incorporation attached to the papers. I saw no reason why this matter was raised when it was not part of the Applicant's case that the Respondent was not incorporated inasmuch as there was no objection to joinder of that Respondent.
I further did not consider that the Fifth Respondent would be non-suited merely because having been joined in the proceedings it filed an opposing affidavit without first filing a notice of intention to oppose in terms of Rule 8(1)). Sue however page 85 of record which shows a "notice of intention to oppose" filed on the 25th January 2002 for that Respondent.
Pieces of correspondence between the Applicant and the Third Respondent show beyond doubt that the Third Respondent did recognize the Applicant as wife of the Deceased inasmuch as some amount of money for burial expenses had even been disbursed to the Applicant by the Third Respondent. See annexure "MN1". The Fifth Respondent who was given possession of the fund however made it clear there were funds in existence in the sum of about M18,220.50 of the pension fund to be kept in trust with the Master of the High Court for 'Mathapelo Nkama the minor child until she became of age. See annexure "MN 2". Fifth Respondent said it did so in exercise of its discretion which can only have been supported by the Deceased's power to make a nomination during his lifetime in terms of Part 14 Rule 8 and 9(c). Similarly the Respondent appointed the family's eldest brother not the Applicant as guardian because he was a nominee. The appointed guardian however indicated that he did not have any interest in the appointment made in his favour thus lending credence to Applicant's assertion that he has failed to discharge his duties.
Those Respondents who opposed submitted that according to the Fund rule the trustees are granted a discretion as to how they are to distribute the benefits to an extent that they are allowed even to ignore the request of a member for the sake of equity. I thought this ought to be qualified. In the present case the funds were disbursed to the five major children and a Trust
Fund established in favour of the minor in accordance with the nomination made by the Deceased. It cannot be said that, strictly, it was a matter of discretion on the part of the Fifth Respondent.
Before getting to the version of the Applicant may I record the Fifth Respondent's further approach. It submitted that the rules of the Pension Fund at Part 14(10)) empowers the Fund to pay a nominee on conditions set out by the fund and any such payments shall relieve the Fund of any liability regarding such person. Once the minor's ('Mathapelo) share is paid to the Fifth Respondent as a trustee the Board and the Fund is no more liable for the said minor.
Furthermore that in accordance with the Administration of Estates Proclamation 1935 Part IV the proceeds were deposited in the Guardians Fund to pay for the maintenance, education or other benefits of the minor. Accordingly, as submitted, it would be highly irregular for the Master to pay out the minor's share to Applicant as the purpose of the Guardians Fund is to support and advance the life of the minor and no one else.
Applicant said that after she was assisted by the Third Respondent to bury her husband she never heard from or received money for herself and the minor
child. This was so until she got information from her husband's fellow worker that the pension fund in question existed.
Applicant then went to the office of the Third Respondent where she was told that she no longer had any right whatsoever to the fund as her husband had nominated only the children as beneficiaries. She was therefore not entitled to any proceeds. She was further informed that 'Mathapelo's share had been given to the First Respondent who had been directed to deal only with the Fifth Respondent "as he was the only member of the family."
Another leg of the Applicant's argument which made for the length and abundance of proceedings is this one. While in terms of paragraph 10 of the founding affidavit, which Fourth Respondent and Sixth Respondent and Seventh Respondent apparently admitted, those respondents had received their shares of the fund a case is made that the girls 'Nyane and Motheba had not received their shares. Those cheques at page 69 of the record i.e no 000420 and 000423 cannot have been received by the two girls as alleged by the Applicant. It is being contended that acknowledgements or "signatures for receipt" on page 95 which shows payment to five people of cheque numbers 000421, 000420, 000423, 000422 and 000419 are false as concern Motheba and 'Nyane but not for others. It was being argued in that regard that this showed that the Fifth
Respondent was not only negligent but it did not apply acceptable professional standards in dealing with the matter to the extent that the monies were being paid to strangers. See Temporary Travel Document page 70 and Temporary Travel Document page 72. The contention is that the documents relate to wrong persons not to the ladies (deponents) who have different but proper identity documents. See the supporting affidavits of Motheba (Motheba Malelu) 'Nyane ('Mahlompho Lefuo). The funds may have ended up in wrong hands but it does not necessarily mean that the Fifth Respondent's allocation of funds was on wrong basis.
I must remark that while it may end up being that the ladies Nyane and Motheba were not duly paid their share of the fund which I thought they should or should have pursued I did not see how such, even if I were to conclude that there has been wrong payment that, would support the Applicant's prayers for dissolution of the Fund and transfer of fund to Applicant on that score or on the alleged ground of the Firth Respondent's malfeasance or mildly put wrong doing or neglect.
My initial impression was that if the Deceased's nomination was valid in terms of Part 14 Rule 8. Hence it id did not matter that the five other children of the family were already majors at the time of Deceased's death according to the
10 meaning of the Rule. It reads:
"Subject to the prescription laid down by the Fund, a member may, in writing, designate a person (and revoke such a designation in writing) to receive benefits of his death."
It means therefore that one could nominate one major child or minor child or dependent's including one spouse without any fetter. This above rule can only be read with Part 14 Rule 9 (c) and it is inconsistent with Part 14 Rule 7. Part 14 Rule 9(c) is not an extension of Rule 7 but it is an extension of the principle that a nominee need not necessarily be a dependent. It is consistent with Part 14 Rule 8. Rule 9(c) says:
"If a member has a dependant and the member has also designated in writing to the Fund a nominee to receive the benefit or such portion of the benefit as is specified by the member in writing to the Fund the Fund shall within twelve months of the death of such member pay the benefit or such portion thereof to such dependent as nominee in such proportion as the management may deem equitable. (My emphasis)
This is not suggestion that the Board can overrule a nomination in favour of a dependent where the dependent has been left out of the arrangement. So that I agreed with Miss Sephomolo for the First Respondent that remitting the funds to the Master (First Respondent) was a mere mechanism in or to comply with the Administration of Estates Proclamation. It could not be interpreted as a derogation from the basis that the Deceased stood having made his own
nomination. which was just being executed in such a manner to effectively bring it to fruition. Such a proportioning would resultantly and effectively be done by the First Respondent. According to this Rule a dependant can be a nominee.
Part 14 Rule 7 which is the rule that Applicant says the Fifth Respondent should have resorted to, in the circumstances that a proper nomination from had not been filled by the Deceased, reads as follows:
"If the fund deems fit owing to particular circumstances, the Fund may pay benefits payable to a member in terms of the rules to member dependants". (My emphasis)
The use of the word "may" suggests a discretion possessed by the Fund to pay out, supposedly, the way it chooses. According to the Applicant the correct step on the part of the Fund would have been to pay out to the minor child and to the Applicant who is spouse and dependants in accordance with the interpretation that "dependant includes spouse". I did not agree that the Part 14 Rule 7 was the proper and operative one. I concluded by accepting Respondent's version that a valid nomination had been made by the Deceased on the basis of Part 14 Rule 8.
The next and decisive aspect would then be about a seriously disputed issue of fact, It is this one as to whether the alleged nomination by Deceased was
valid. I have found it easy to resolve the problem. The answer is to be found within the context that the Respondents do not even suggest nor do they deny that it was in fact the Deceased who signed. Mr. Van Mollen for Managing Director of the Third Respondent when faced with the suggestion that the Applicant did not sign the form says at paragraph 15 of the opposing affidavit:
" Contents of this paragraph are disputed and Applicant is put to proof thereof. Nomination forms are issued to employees to fill and bring back to the Human Resource Manager's office. How these forms arc filled is up to the members themselves. Having pursued the late Khopiso Nkama's file I have discovered that his handwriting has never been the same which lead one to the conclusion that he must have requested someone to write for himself. I attach the two letters when he applied for a leave and mark them Annexure LFM 6(a) and LFM 6(b) respectively." (My emphasis)
Indeed the two signatures referred to above are distinctively different even to an untrained eye. It may even be true that as the Applicant says in her replying affidavit the true writing of the Deceased is the one shown in M"5" as he has previously stated in her founding affidavit. If this aspect is true what does it achieve? I would hardly find that it makes a good and convincing case on the papers as they are that the form was not signed by the Deceased. One would start off by questioning the motive by some unknown person for making that kind of an allocation and even more as to why it has excluded the Applicant as the Applicant herself quite naturally and understandably seeks an answer. I did not find that I would decide this point in favour of the Applicant in the absence
of further evidence. I would choose the Respondent's version in the circumstances that there is no sufficient proof of Applicant's averment on the question of the Deceased's writing. Neither is Respondent's version on the aspect far-fetched or clearly untenable. See Mamatlakala Maphisa v Pule Lechcko and Others 1995-96 LLR 269 at 273.
One of the intriguing questions, was why did Applicant not opt out for dissolution of the whole fund and not only for the trust fund with the First Respondent? (See prayer 1(b). Perhaps this was based on the foresight that her eldest son was not performing his guardianship duties well over this portion of the fund in which the minor child was to benefit.
As I decided the best that the Applicant could achieve was that she be substituted as guardian in favour of the minor child 'Mathapelo for the purpose of administering the trust fund.
I did not find that it was just to award any costs. There will therefore no order as to costs.