Joina, BBSPF Judgement Set For April
Lebogang Mosikare | Monday March 4, 2019 13:50
BBSPF is made up of employees of Barclays Bank of Botswana – one of the country’s leading commercial banks.
Other respondents in the matter who are cited nominally are Obert Senne, Kebalebile Sihamba, Zibiso Malibamba and Ogomoditse Sihamba respectively. In his final submissions before Justice Lot Moroka on Friday, Joina stated that he was the father of Motlalepula Senne, who is deceased, and who was also a member of the bank’s fund before she died. Joina continued: “BBSPF is sued for failure to pay plaintiff a share of the benefits from funds of the deceased held by the first defendant for distribution to the deceased’s dependents. Evidence shows that the funds were distributed to various relatives of the deceased, leaving out only the plaintiff who is the father. The action is for share of the benefits that the plaintiff and the deceased’s family believe they are entitled to. The family proposed a distribution plan.”Plaintiff Joina led evidence to show that he was dependent on the deceased and demonstrated on several instances when the deceased contributed maintenance to him.
“The defendants’ defence was that the plaintiff did not need support from the deceased, but placed no evidence before court to support its case.
In our respectful submission, the evidence before court demonstrates that all the deceased’s dependents had other sources of support and they were therefore partially dependent upon the deceased. None of the dependents was entirely dependent upon the deceased,” Joina said, adding that by excluding him for being a beneficiary, BBSPF was acting in bad faith when distributing the P526,932.81 benefit. “There was no valid explanation why the plaintiff was excluded from the meeting which distributed the benefit. There is no valid explanation why the family proposal was not put into effect and why the plaintiff was not invited to a meeting that took the decision to exclude him as a beneficiary,” Joina said.
In its filing notice under the subtopic, ‘application of the law to the facts’, BBSPF’s attorney Bonolo Itumeleng said: “It is submitted that BBSPF acted properly in coming to the to the conclusion that the plaintiff was not a dependent. It is submitted that the plaintiff has failed to prove on a balance of probabilities that he depended on the deceased”.
“We submit that the deceased was not legally liable to maintain the plaintiff. As a father to the deceased, liability to be maintained by the deceased would only arise in the event that he was a parent who was indigent and unable to provide the very basic necessities of life for himself. This is not the case. The plaintiff is a working father who described himself as an attorney and a farmer,” Itumeleng said. This, Itumeleng noted, is two different sources of income and additionally, the plaintiff is married in community of property to a secondary school teacher which gives him another source of income.
“Was the plaintiff factually dependent on the deceased? The evidence of the BBSPF is that during the interview with the plaintiff, he stated that he is in fact the one who assisted the deceased financially. The plaintiff confirmed this when he was giving his evidence in court. He stated that he would assist her with her debts and groceries.
He further stated that he paid for the deceased to get international medical assistance in order to be able to have a child… When asked how he depended on the deceased, he was not specific about the details of his dependency,” Itumeleng said.
She added that the fact that the deceased had not listed Joina as a beneficiary in her nomination of beneficiaries forms speaks volume about the nature of their relationship regarding maintenance and dependency.
The plaintiff, Itumeleng said, further complains that BBSPF did not consider the resolution allegedly made by the family on how the distribution was to be carried out.
“It is submitted that while BBSPF can consider many relevant factors when determining how to make a distribution, the wishes of the family are not of primary importance as these may defeat the object of the Retirement Fund Act and the Staff Pension Fund. In any event, the resolution was submitted after the distribution had already been done. The plaintiff was aware of this,” Itumeleng said.
“In his evidence, the plaintiff stated that since the distribution has already been done and the only funds remaining are those in the guardian fund, then in the event he is successful, he should be paid from the guardian fund. It is submitted this would not be in the interest of the minor children who are to benefit from the said funds,” Itumeleng said, adding that the board acted properly in the exercise of its discretion, which decision must therefore stand.
“We pray for the dismissal of the action with costs,” Itumeleng said.