Ndlovu v Employment Bureau of Africa Limited – Teba & Another (CIV/APN/ 142 of 98) [2002] LSCA 65 (6 August 2002)

CIV/APN/142/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter between 'MASOPHIA N D L O VU APPLICANT and T HE E M P L O Y M E NT B U R E AU OF AFRICA LIMITED - TEBA 1s tR E S P O N D E NT ' M A T H A BO T H A K A L E K O A LA 2N DR E S P O N D E NT J U D G E M E NT Delivered by the Honourable Mrs. Justice K. J. G U NI On the 6TH August, 2002 The applicant in this matter is ' M A S O P H IA N D L O V U. She is the sister of the late M O J A L E F A A R ON THAKALEKOALA. The 1st respondent is T HE E M P L O Y M E NT B U R E AU OF AFRICA - commonly known as TEBA. The 1st respondent operates as a recruitment and/or employment Agency for the Mining Industry of the Republic of South Africa. It is through the 1st respondent that the late M O J A L E FA A R ON T H A K A L E K O A LA was recruited from here in L E S O T HO to go and work in the mines in the REPUBLIC OF S O U TH AFRICA. The 2nd respondent is the widow of the LATE A R ON M O J A L E FA THAKALEKOALA. The deceased worked for LORAINE G O LD MINES LTD - a South African company. He worked for the said Mine at W E L C O ME in the province of O R A N GE FREE STATE. At the time the deceased was recruited, prior to his engagement as a miner at the said location, he entered into a contract for the benefit of the third party - his sister, the applicant herein. In terms of that contract he appointed this applicant - his o wn sister, as his death beneficiary. The fact of this applicant's appointment as the deceased's death beneficiary is evidenced in Annexure "BB" attached to the Founding Affidavit. The 2nd respondent does not dispute the fact of the said appointment. The 2nd respondent does not challenge or question her late husband's right or authority to make the said appointment. The deceased had further indicated his o wn sister - this applicant as his next of kin. This indication is also supported by the production of Annexure "CC" attached to the found Affidavit. Both these facts - the appointment of the applicant as the deceased's death beneficiary and his next of kin, have been unequivocally admitted by the 2nd respondent, who is the only party opposing this application. Acting upon the deceased's apparent instructions and indications, the 1st respondent gave a death report to this applicant w h en her brother - M O J A L E FA A R ON T H A K A L E K O A LA died on 13th January 1998, at W E L C O ME in the REPUBLIC OF S O U TH AFRICA. The applicant was also given by the 1st respondent an advance payment of four thousands maloti (4 000.00) towards the funeral expenses of her late brother. There is no dispute that the applicant handed that whole amount to the deceased's family to be used for that specific purpose of meeting the costs of burial of the deceased. However, before the deceased was buried, the 2nd respondent sued this applicant in CIV/APN/30/98. In that application the 2nd respondent sought amongst other remedies, an order of court, directing this applicant and the 1st respondent - TEBA, to release to her (The widow of the deceased) the proceeds of the insurance - commonly called death benefits of the deceased. TEBA is also acting here on behalf of the insurance company. That application was immediately withdrawn. According to the 2nd respondent, she withdrew the said application because she was included amongst the members of the deceased's family to w h om this applicant handed over that advance payment of an amount of four thousands maloti for the purpose of meeting the costs of burial of the deceased. According to the applicant the 2nd respondent withdraw her application on the realisation that she had no valid grounds for that suit. To this applicant's surprise the 2nd respondent surreptitiously approached the 1st respondent to seek the release to her by the 1st respondent those death benefits. The 1st respondent obliged without further ado as requested by the 2nd respondent. W h en this applicant approached the 1st responded in order to claim and enforce her right as the death beneficiary, the 1st respondent rejected her claim on the grounds that she is not the widow of the deceased. This dispute arose. The applicant is not claiming heirship of the deceased's estate. She is not claiming a portion of the deceased estate. R A K O TO Vs KATIBA CIV/APN/15/90. Her claim is based purely on the terms of that contract which was entered into between her late brother and the insurance company for the benefit of the third party. The applicant is that third party w ho was appointed as a death beneficiary by her late brother. She did not accept that her claim to enforce her rights arising out of that contract for the benefit of the third party could be frustrated on the grounds that she is not the widow of the deceased. The applicant, then approached this court and obtained the rule Nisi in the following terms:- "(a) That the 2nd respondent be ordered and directed to release death benefits of that Insurance for the benefit of the third party) in the sum of sixty-four thousands, three hundred and eighty-seven maloti (64 387.97) and ninety-seven lisente. "(b) That the 2nd respondent pays costs of this application. A1though that rule Nisi was sought and issued out against both the 1st and 2nd respondent, only the 2nd respondent has opposed the confirmation of the said rule Nisi. No papers have been filed on behalf of the 1st respondent. In fact the Rule Nisi does not order nor direct the 1st respondent to do anything. The applicant's case as made out from the papers filed of record, is to the effect that she is the appointed death beneficiary of her late brother. She is entitled to receive the proceeds of the insurance contract which was entered into between her late brother and the insurance company represented by TEBA. Those proceeds do not form part of the deceased estate. R A K O TO Vs KATIBA (supra). She is not claiming the heirship of the deceased estate. Her rights arise out of that contract. She contents that she has established the principle or -concept of STIPULATIO-ALTERI-which-must-be-app!ied-and enforced. LOUISA A ND P R O T E C T OR OF SLAVES Vs V AN D ER B E RG (1830) 1 M 4 7 1. The 2nd respondent seems to deny that there is no such principle or concept in the L AW OF T HE REPUBLIC OF S O U TH AFRICA. The 2nd respondent contents that the proper law of the contract is that of the REPUBLIC OF SOUTH AFRICA. The statute law of the REPUBLIC OF S O U TH AFRICA according to the 2nd respondent has drastically changed that institution of STIPULATIO ALTERI as announciated in the case law of this kingdom. The main system of law applicable in L E S O T HO and the REPUBLIC OF S O U TH AFRICA is R o m an Dutch law. The institution of STIPULATIO ALTERI is part of R O M AN D U T CH Law. Being part of the R O M AN D U T CH L A W, this principle of STIPULATIO ALTERI is therefore part of the civilian system of law applicable within this jurisdiction - (LESOTHO A ND REPUBLIC OF S O U TH AFRICA). R A M A H A TA Vs R A M A H A TA 1985-90LLR 488(C of A). R A K O TO Vs KATIBA and Another CIV/APN/15/90 . There seems to be no argument that the proper law of this particular contract is that of T HE REPUBLIC OF S O U TH AFRICA. That is the law which must be given effect to. As I have pointed out earlier on, the main system of law in The REPUBLIC OF S O U TH AFRICA is the same as the civil law applicable in Lesotho. That being the case the R O M AN D U T CH L AW institution of STIPULATIO ALTERI similarly apply in S O U TH AFRICA as it does in LESOTHO. The alleged drastic statutory changes made to affect the application of the principles of STIPULATIO ALTERI were not put nor indicated to me. My search for the relevant statute, rules and/or regulations which allegedly reversed the position held in R A M A H A TA Vs R A M A H A TA 1985 - 90 LLR. 488 (C of A), was unsuccessful. The foreign law must be given effect to when it is a proper law of the contract. R A M A H A TA Vs RAMAHATA(supra). The difficulty arises when that law is not known and its existance as such is in doubt or totally unknown. There is no way the unknown law or non-existing law can be applied. The known and existing position of the law on this subject of STIPULATIO ALTERIO remains recognised and enforceable as pronounced in the cases of both the High Court and Court of Appeal in this kingdom; such as M O T O K OA Vs M O TA and T E BA CIV/APN/360/00 K A P HE Vs T E BA and Another 1991-92 LLR & LB Page 16; R A K O TO Vs KATIBA A ND Another CIV/APN/15/90, R A M A H A TA VS R A M A H A TA 1985-90 LLR 488. For these reasons the rule is confirmed as prayed with costs. K. J. G U NI J U D GE For applicant For respondent - - Mr. S. Phafane Mr. T. Molapo