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[2010] ZAGPPHC 31
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Skenjana v Minister of Health and Another (23650/08) [2010] ZAGPPHC 31; (2010) 31 ILJ 2026 (NGP) (26 March 2010)
FMT
IN THE HIGH
COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
26
MARCH 2010
NOT
REPORTABLE
CASE NO:
23650/08
In the matter
between
MALUNGISA LEO
SKENJANA APPLICANT
And
THE MINISTER OF
HEALTH 1
ST
RESPONDENT
THE
GOVERNMENT
EMPLOYEES
PENSION FUND 2
ND
RESPONDENT
JUDGMENT
MSIMEKI, J
INTRODUCTION
[1] The
Applicant, in this application, sought an order in the following
terms:
“
1. That
the respondents’ actions of unilaterally deducting the
applicant’s pension benefits be declared unlawful and
set
aside.
That
the respondents be and are hereby ordered and directed to pay the
applicant’s pension benefits to the applicant forthwith.
That
the respondents be and are hereby ordered to pay the costs of this
application.
That
the court grant such further and or alternative relief as it deems
appropriate.”
BACKGROUND
FACTS
[2] The
application was brought about by the deductions that were made from
the Applicant’s pension benefits resulting in
the Applicant
receiving no benefits at all. The Applicant had been employed by the
first Respondent. He, during such employment,
contributed to the
second Respondent by way of monthly deductions that were made from
his salary. On 19 March 2004 the Applicant
resigned from his
employment. He alleges that he, on the last day of his employment,
completed the necessary documents for the
processing and payment of
his pension money by the Respondents. He instructed his lawyers to
pursue the matter when he did not
receive the money. Upon enquiring,
his lawyers were informed that the pension money had been utilised to
pay the money that he
at the time had been owing. The money, the
first Respondent contended, had been used to pay for: settlement of a
debt for leave
without pay, the bursary debt, settlement of a debt in
respect of a library book that he had failed to return, salary
overpayment
and for settlement of garnishee orders that had been
obtained against him. The debts, according to the first Respondent,
amounted
to R34.651.73.
THE ISSUES
[3] The
Applicant contends that the Respondent acted wrongfully and
unlawfully when the deductions were made while the first Respondent
averred that the deductions had been lawfully made. It is also to be
determined whether the Applicant should have been informed
of the
deductions before such deductions were made.
[4] Only the first
Respondent opposed the application. The second Respondent did not
file its opposing documents.
COMMON CAUSE
FACTS
[5] The
following facts are common cause:
5.1 The Applicant
had been employed by the first Respondent;
5.2 Contributions
were made to the second Respondent on behalf of the Applicant;
5.3 The Applicant
resigned from the first Respondent’s employment;
5.4 Deductions
were made from the Applicant’s pension benefits;
5.5 The
Applicant had a bursary debt;
5.6 The
Applicant used a book which he did not return to the information
centre;
5.7 The
Applicant was overpaid;
5.8 There
were garnishee orders against the Applicant;
5.9 The
Applicant was aware that money was deducted from his salary to pay
those who had obtained the garnishee orders.
[6] It is the
first Respondent’s contention that the Applicant was duly
notified of his debts and that the Applicant was in
any event aware
of such debts as deductions were made from his salary in respect of
some of the debts. The deductions, according
to the first Respondent,
were perfectly lawful. The Applicant denies this.
[7] Government
employees pensions are regulated by the Government Employees Pension
Law, 1996. (“The Act”). The relevant
section of the Act
that Mr Matebese and Mr Ngobese on behalf of the Applicant and the
first Respondent respectively, have referred
to is section 21.
Section 21(3)
provides:
“
Notwithstanding
the provisions of subsection 1 or of any other law -
any
amount which is payable to the employer or the Fund by any member in
the employment of such employer on the date of his or
her retirement
or discharge, or which the employer is liable to pay in respect of
such member;
any
amount which has been paid to any member, pensioner or beneficiary in
accordance with the provisions of this Law and to which
such member,
pensioner or beneficiary was not entitled;
…
.;
any
amount, plus interest at the rate determined by the Board after
consultation with the actuary, due to the Fund in respect
of an
amount for which the Fund becomes liable under a guarantee furnished
in respect of a member for a loan granted by some
other person to
that member in terms of the rules, may be deducted from the benefit
payable to such member, pensioner or beneficiary
under this Law in a
lump sum or in such instalments as the Board may determine”
(my
emphasis)
[8] To
support his submission, Mr Matebese, on behalf of the Applicant,
heavily relied on section 21(1) of the Act while, Mr Ngobese,
on the
other hand, contended that section 21(3)(a) and (b) of the Act
support his view and submission.
[9] The Applicant
agrees that he has been overpaid. This is so because he resigned on
19 March 2004 yet he had been paid for the
whole month. He accepts
the debt for the library book which he did not return. He knows about
the garnishee orders and was aware
that deductions were made from his
salary in respect thereof.
[10]
Section
21 (1) of the Act provides:
“
No
benefit or right in respect of a benefit payable under this Act shall
be capable of being assigned or transferred or otherwise
ceded or of
being pledged or hypothecated or, save as is provided in
section 26
or
40
of the
Maintenance Act, 1998
and section 7 (8) of the Divorce
Act, 1979 (Act No. 70 of 1979), be liable to be attached or subjected
to any form of execution
under a judgment or order of a court of
law.”
Section
21 (3) excludes section 21(1) in its operation. Section 21(1) deals
with what should not be done. This is what is prohibited.
The
prohibition does not extend to the provisions of section 21(3)(a) and
(b). Section 21 (3)(a) and (b) deal with the deductions
from a
members pension benefits that are allowed. These are amounts which
are payable to the employer or the Fund by any member
in the
employment of an employer or which the employer is liable to pay in
respect of an employee or a member.
Clearly any amount
which a member was not entitled to which was paid to the member in
accordance with the provisions of the Act
may be deducted from the
benefit payable to such member. The amount to be deducted may be in a
lump sum or in such instalments
as the Board may determine. The
section has thus given the Board the discretion to exercise when such
deductions are made. This
is denoted by the use of the word ‘may’
in the section.
[11] It must be
borne in mind that the deductions were made in order to settle the
Applicant’s debts. These are the debts
that the Applicant, in
any event, would have had to pay. Surely the settlement of the debts
ought to be welcome news. The Applicant,
in the circumstances of his
case was perfectly aware that deductions were made from his salary
and that the money so deducted was
used to settle the debts to which
the garnishee orders related. These are the debts which the Applicant
was obliged to pay. He,
no doubt, had consented that such deductions
be made from his salary. The first Respondent was liable to pay the
money deducted
from the Applicant’s salary in accordance with
what the garnishee order provided or directed. The resignation of the
Applicant
from his employment with the first Respondent in no way
extinguished the Applicant’s debts covered by the garnishee
orders.
The fact that the first Respondent did not, in the
“withdrawal from the Fund” form specify what the
Applicant’s
liability to the State or the employer was in
respect of, in my view, does not mean that there was
misrepresentation on the part
of the first Respondent. The
submission, on behalf of the Applicant, that the first Respondent
misrepresented to the second Respondent
by stating in item 22 of the
form “SWP1” that the R38.636.67, represented salary debt,
in my view, has no substance.
Annexure “B”
to the Founding affidavit clearly shows the amounts that were
deducted and the items in respect of which
such deductions were made.
[12] The proper
reading of Section 21(3) of the Act clearly evinces that no consent
is required from a member before deductions
are made from the benefit
payable to such member. The section only gives the Board the
discretion to make such a deduction either
in a lump sum or in such
instalments as the Board may deem fit. The submission by Mr Matebese
on behalf of the Applicant, that
the Applicant’s consent was
needed before the deductions were made, has no merit.
It seems to me
that the items in respect of which the deductions were made do not
surprise the Applicant. He knows about the bursary,
the library book,
the overpayment and the garnishee orders. The leave without pay and
the leave credits appear to be familiar to
the Applicant. The
Applicant’s unhappiness seems to be based on the fact that
consent was not first sought and found before
the deductions were
made. As I have already pointed out the unhappiness is not supported
by section 21 (3) of the Act which seems
to exclude the consent of a
member in such instances. Mr Ngobese’s submission that the
Applicant’s consent is rendered
unnecessary by section 21 (3)
is, in my view, correct. A court order, in my view is also
unnecessary. I do not think it is necessary
to deal with the issue of
consent any further. The deductions, in any event, were made to
settle the debts that the Applicant had.
This, in my view, was
proper.
[13] Some
of the Applicant’s contentions seem to be empty denials as it
can clearly be verified from the first Respondent’s
annexures
that money was paid on behalf of the Applicant. The nearest example
is the amount of R9245.00 which the first Respondent
paid in respect
of the Applicant’s bursary. The first Respondent has produced
proof while the Applicant has produced none.
According to him the
Department paid on his behalf an amount ‘in the region of
R2.500.00.’ This can never be convincing
to anyone. The
deductions that were made from the Applicant’s pension benefit
were properly made in terms of section 21(3)
(a) and (b). The consent
that the Applicant alleges was necessary before the deductions were
made was unnecessary.
[14] If,
indeed, the Applicant avers that there are serious and material
disputes of fact, which cannot be resolved on the papers,
then and in
that event, the Applicant should not have followed the route that he
took that of motion proceedings. It is clear from
what I have said
above that the Applicants’ application should fail.
[15] In the result
the order that I make is as follows:
The application
is dismissed with costs.
MW
.
MSIMEKI
JUDGE
OF THE HIGH COURT
Heard
on: 10 February 2009
For the Applicant:
Adv. Z. Z. Matebese
Instructed by: Z. S.
Jojo Attorneys C/O Ngomane Inc.
For
the I
s
'
Respondent: Adv. I. P. Ngobese
Instructed
by: The State Attorney