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[2021] ZAGPJHC 388
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Massyn Vervoer CC v Road Freight & Logistics Industry Provident Fund and Others (24470/2017) [2021] ZAGPJHC 388 (1 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24470/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
01/06/2021
In
the matter between:
MASSYN
VERVOER
CC
Applicant
and
ROAD
FREIGHT & LOGISTICS INDUSTRY PROVIDENT FUND
First Respondent
PENSION
FUNDS ADJUDICATOR
Second Respondent
SHERIFF
OF THE HIGH COURT, WITBANK
Third Respondent
SA
TRANSIT SERVICES
CC
Fourth Respondent
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 01 June 2021
JUDGMENT
YACOOB
J:
1.
On 08 June 2017 the
Pension Funds Adjudicator (“the PFA”), the second
respondent in this matter, made a determination
against the applicant
(“Massyn”) in favour of the first respondent (“the
Fund”), in terms of section 30M
of the Pension Funds Act, 24 of
1956 (“the Act”), directing Massyn to submit outstanding
contribution schedules for
January 2016 – January 2017 within
two weeks, directing the Fund to calculate the contributions and
interest owed either
in terms of those schedules or in terms of
schedules it reconstructs itself, and ordering Massyn to pay the
outstanding contributions
and interest.
2.
On 14 June 2017 Fund
filed the determination in this court in terms of section 30O of the
Act, which give the determination the
force of an order of court.
During October 2019 a writ of execution was obtained for payment of
an amount that was calculated on
the basis of schedules eventually
provided to the Fund.
3.
The applicant,
(“Massyn”) seeks the setting aside of a determination by
the Pension Funds Adjudicator (“the PFA”)
made against it
and in favour of the first respondent (“the Fund”), the
setting aside of the noting of the award, and
of the writ of
execution issued on 31 October 2019 pursuant to the noting. It also
seeks the stay of the sale of the goods attached
under the writ,
pending the determination of this application. However that last head
of relief was later obtained in urgent court.
4.
The Fund complained to
the Pension Funds Adjudicator that Massyn Vervoer had not paid
contributions on behalf of its employees who
were members of the
Fund. The determination records that Massyn had been requested to
respond to the complaint before the determination
and had not done
so. Massyn does not deny that it had been requested to respond.
5.
Massyn contends that it
does not have any employees who are or were members of the Fund, and
that the determination should not have
been made against it. Massyn
also contends that this is not an application for review, but simply
an application for “setting
aside”. Massyn contends also
that this court did not have jurisdiction as the noting ought to have
been done only in the
Gauteng division or the Mpumalanga division.
6.
I will state upfront
that there is no merit to the jurisdiction point. Mr Krüger
erroneously relied on the erstwhile limited
jurisdiction of this
court, when it had a smaller jurisdiction than the Gauteng division.
However since January 2016 the Gauteng
division and the Gauteng Local
division shared concurrent jurisdiction, and at the time the
determination was noted this court
had jurisdiction.
7.
I proceed now to set
out the facts leading up to this application, after the determination
was made.
8.
During 2018, the Fund’s
attorneys and Massyn and its attorneys corresponded about the
outstanding amount, and about the determination.
For convenience,
where I refer to correspondence from “the Fund” this
includes correspondence from the Fund’s
attorneys, and
reference to correspondence from Massyn includes correspondence from
its attorneys, unless otherwise indicated.
9.
The letters from the
Fund were addressed to “Massyn Vervoer” and referred to
the determination against “Massyn
Vervoer CC” and the
debt of “Massyn Vervoer CC”.
10.
In the first letter, on
14 August, 2018, addressed to “frans@massynvervoer.co.za”
the Fund states that since Massyn
had not submitted the outstanding
schedules, the Fund had reconstructed the schedules using information
it already had, to calculate
the outstanding contributions, and
informs Massyn of the amount due, both in respect of outstanding
contributions and interest.
This letter is annexed to the founding
affidavit.
11.
Next Massyn annexes a
letter to the founding affidavit from the Fund dated 29 August 2018,
which refers to a response from Massyn
on 22 August 2018, in which
Massyn apparently disputes the calculation, but which is not annexed
to the papers. The Fund expresses
its willingness to recalculate the
amounts if the payroll schedules for the period are provided.
12.
Although Massyn has not
provided its own letter of 22 August 2018, the Fund annexes it to the
answering affidavit. There is no suggestion
in the letter that the
determination is against the wrong entity.
13.
The letter of 29 August
is addressed to SA Transit Services (the fourth respondent) trading
as Massyn Vervoer CC.
14.
On 12 March 2019 the
Fund wrote again to Massyn, informing it that the payroll schedules
had been provided by the fourth respondent
trading as the first
respondent and informing it of the new amounts calculated. Massyn
again does not annex those payroll schedules,
nor any correspondence
emanating from its office. The letter from the Fund refers to an
allegation that Massyn has transferred
to another fund, but nothing
about Massyn being the wrong party or not being an employer or
contributor.
15.
The schedules provided
by Massyn to the Fund have been annexed to the Fund’s answering
affidavit. However there is nothing
in those schedules which
indicates by whom the employees are employed.
16.
Massyn annexes to its
papers proof of payment by the fourth respondent to a provident fund,
it is not clear that it is the same
fund as the Fund. However these
are two payments in September and October 2018 and do not prove that
payment for the period at
issue was made. In addition, the amounts
are far less than the amount owing. Further, there is no indication
as to which employees
these payments referred to.
17.
This application
to set aside the determination was instituted in February 2020, two
years and eight months after the determination.
18.
According to Massyn,
the fourth respondent employs the employees whose contributions are
the subject of the determination. It says
that at the time of the
determination it had no employees who were members of the Fund, and
that the fourth respondent “had
employed the members of the
first respondent”. It provides no proof of this. The
implication of the allegation is that the
fourth respondent took over
the employees at some point, but Massyn does not disclose when the
fourth respondent took over these
employees. Nor does it provide any
evidence that the Fund was informed that the employees are now
employed by the fourth respondent.
19.
In the replying
affidavit, Massyn then contradicts itself, saying that Massyn had no
employees “at any stage” (rather
than at the time the
determination was issued). In any event the relevant time is the
period for which the contributions were owing,
rather than when the
determination was issued.
20.
According to Massyn,
the fourth respondent trades under the name Massyn Vervoer and is
apparently a related entity. It is noted
that the member of the
fourth respondent, according to its letterhead, is a trust whose
trustee is “FB Massyn”, the
same initials and surname as
the deponent to the founding affidavit. However the deponent does not
take the court into his confidence
regarding the nature of the
relationship. However the CIPC report on Massyn discloses that the
same trust is its member. In the
replying affidavit for the first
time it is disclosed that the deponent to the two affidavits and the
trustee are not the same
person, but that they are father and son
with identical names.
21.
It is also worth noting
that email correspondence annexed by the Fund to its answering
affidavit shows a certain Frans Massyn (it
is not clear which Frans
Massyn this is) corresponding with the Fund’s administrator
regarding the contributions arrears,
that that person’s emails
have a signature referring to Massyn Vervoer, that the relevant email
address is frans@massynvervoer.co.za
and that there is no reference
anywhere on those emails to the proper employer being the fourth
respondent. These emails were in
2015 and 2016, and it will be
remembered that the relevant time is January 2016 – January
2017.
22.
Massyn does not annex
any proof of the fourth respondent’s registration with the Fund
as a contributing employer, or of its
list of employees. Nor does it
make any disclosure of what its own position is, to bolster the bald
allegation that it is not a
contributing employer and that it does
not have employees.
23.
According to Massyn the
Fund has attached a truck belonging to the fourth respondent, who
Massyn contends is the correct party against
whom the determination
should have been taken, to sell in execution of the debt. Massyn
seeks an order staying the sale of the
truck, pending the
determination of this application, but that order has already been
given in an urgent application. If I were
to deal with that head of
relief, it is not clear what
locus
standi
Massyn has
to seek any relief regarding a truck it does not own.
24.
Massyn does not annex
any proof of authority or resolution for the bringing of this
application.
25.
The Fund in its
answering affidavit annexes the proof of registration of Massyn with
the Bargaining Council for the Road Freight
Industry. It alleges that
Massyn was taken over by the Fund in a bulk transfer when the Fund’s
contributions began to be
administered separately from the Bargaining
Council in 2013. The registration form refers to Massyn Vervoer CC
and was completed
in 2003 by Mr Frans Barend Massyn who appears to
have the same ID number as the Mr Massyn who is the representative
trustee on
Massyn’s CIPC report.
26.
The Fund also annexes a
form filled in by a former employee attempting to claim benefits on
retirement, which was endorsed by the
employer “Massyn Vervoer”
and on which there is no mention of the fourth respondent. It
includes the same “file
number” as that referred to in
the registration form.
27.
Mr Massyn in reply
confirms that all employees of both Massyn and the fourth respondent
use the same domain name for the email addresses.
He complains that
the Fund fails to differentiate between the corporate identities of
Massyn and the fourth respondent. However
it is clear that, until the
launching of this application, Mr Massyn and those people
representing Massyn and/ or the fourth respondent
also did not
differentiate between the two.
28.
Mr Massyn contends that
the registration with the Bargaining Council does not prove which
entity was registered. There is no merit
to this contention. On the
papers before this court it is clear that the Bargaining Council
registered Massyn. It is also clear
that the distinction now sought
to be relied upon in this court was never brought to the attention of
the Fund or any of its representatives,
or the PFA, at any point
before this application.
29.
Mr Krüger
submitted for Massyn that it mattered not that the procedure for a
review was not followed, as the relief sought
was the same. An
application for rescission was also made in argument.
30.
The Fund contends that
the application stands to be dismissed because
30.1.1.
Massyn has not followed
the correct procedure for review proceedings and has prejudiced the
Fund in its defence;
30.1.2.
Massyn has no
locus
standi
regarding
the relief in prayer four [the stay of the sale of the truck];
30.1.3.
Massyn has annexed no
proof of authority, and there is no indication that the deponent to
the affidavit has any authority or connection
with Massyn;
30.1.4.
Massyn has not proved
that it is the “wrong party”;
30.1.5.
Massyn has not come to
court with clean hands as it has taken advantage of the various
corporate identities Mr FB Massyn (senior)
appears to be the member
of in his capacity as a trustee;
30.1.6.
Massyn cannot seek
rescission as no case has been made out and in any event it is not
the appropriate relief.
31.
I consider that there
is some merit in the preliminary points raised by the Fund but I do
not deal with them. It is clear that,
once one gets to the merits,
Massyn has simply not made out a case. The court is expected to
simply accept the bald allegation
that Massyn has no employees
(whether at the time of the determination or ever) who are members of
the Fund, and that the fourth
respondent does, when there is no proof
of the fourth respondent’s registration or of its employment of
any members of the
Fund.
32.
Even before one
considers the answering affidavit Massyn has made out no case. Once
one considers that the Fund has adduced proof
of Massyn having
registered with the Bargaining Council under the name of Massyn
Vervoer, of it endorsing the retirement application
of its employee
with the name Massyn Vervooer, and the fact that Massyn never
responded to the Fund or the PFA to say that it was
the wrong party,
it is clear that the decks are overwhelmingly stacked against Massyn.
It appears that this application is nothing
more than an attempt to
delay paying contributions for employees who are entitled to have had
those contributions paid and who
are prejudiced in the benefits they
are able to claim.
33.
Far from being a victim
of the Fund’s and the PFA’s confusion, it appears that
Massyn and the fourth respondent and
their controlling entity have
taken advantage of their various corporate identities, the similarity
in the names of Massyn and
the fourth respondent’s trading
name, and the fact that the two Mssrs Massyn have exactly the same
name, to obfuscate and
avoid their indebtedness.
34.
It is also clear that
Massyn has not made out any case for rescission.
35.
For the reasons
set out above, I make the following order:
The application is
dismissed with costs.
S.
YACOOB
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Appearances
Counsel
for the applicant:
TP Krüger SC
Instructed
by:
Jordaan & Smit Incorporated
Counsel
for the first respondent:
Ms L Bedhesi
Instructed
by:
Lennon Moleele & Partners
Date
of hearing:
25
June 2020
Date
of judgment:
01
June 2021