About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2023
>>
[2023] ZAGPPHC 442
|
|
Royal Bafokeng Platinum Limited and Others v Momentum Metropolitan Life Ltd and Others [2023] ZAGPPHC 442; 64286/2021 (19 June 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
number: 64286/2021
Date
of hearing: 15 June 2023
Date
delivered: 19 June 2023
(1)
REPORTABLE:
YES
/ NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/ NO
(3)
REVISED.
DATE:
19/06/2023
In
the matter between:
ROYAL
BAFOKENG PLATINUM LIMITED First
Applicant
BAFOKENG
RASIMONE MANAGEMENT
SERVICES
(PTY) LTD Second
Applicant
ROYAL
BAFOKENG RESOURCES
PROPERTIES
(RF) (PTY) LTD Third
Applicant
and
MOMENTUM
METROPOLITAN LIFE LTD First
Respondent
FUNDSATWORK
UMBRELLA
PENSION
FUND
Second
Respondent
FUNDSATWORK
UMBRELLA
PROVIDENT
FUND Third
Respondent
THE
PENSIONS FUNDS ADJUDICATOR Fourth
Respondent
SEFAKO
ABIOT LUCAS DIKGOLE Fifth
Respondent
KHOMEDI
SIMON MOHAPI Sixth
Respondent
LAWRENCE
LUCKY KHUNOU Seventh
Respondent
OPPURTUNIA
TSHEBOENG RANTSHO Eighth
Respondent
THERESA
BAILE LEHOBYE Ninth
Respondent
OTHUSITSE
EDWARD MASUDI Tenth
Respondent
KGOTLAETSILE
JERRY SEBOGODI Eleventh
Respondent
ITUMELENG
JONATHAN SENNE Twelfth
Respondent
(AND
THE LATE ESTATE)
MPOLOKENG
SUZAN MATSOSO Thirteenth
Respondent
JUDGMENT
SWANEPOEL
J:
[1]
Applicants seek leave to appeal against the dismissal of their
application in which they sought the setting
aside of the Pensions
Fund Adjudicator's ruling in respect of fifth to thirteenth
respondents' pension interest.
[2]
Applicants take issue with the interpretation placed by this Court on
the word "dishonesty" in section
37 D (1) (b) (ii) (bb) of
the
Pension Funds Act, 1956
. Applicants contend that it is reasonably
possible that another Court would come to a different interpretation
of the word, and
that leave to appeal should be granted in terms of
section 17 (1) (a) (i) of the Superior Courts Act, 2013 ("the
Act").
This issue was extensively argued, and I have not heard
any new argument which would move me to believe that another Court
would
come to a different finding. Therefore the application should
fail on that ground.
[3]
Applicants also seek leave to appeal in terms of section 17 (1) (a)
(ii) of the Act. They do so on the basis
that there are allegedly
conflicting views on the issue of whether misconduct, within the
meaning of section 37 D of the
Pension Funds Act must
contain an
element of dishonesty. In Moodley v Local Transitional Council of
Scottburgh Umzinto North and Another[1999] JOL 5652
(D) the Court
held that the common denominator of the words used in
section 37
D
was the element of dishonesty. That interpretation was followed in
South African Broadcasting Corporation SOC Ltd v South African
Broadcasting Corporation Pension Fund and Others
2019 (4) SA 606
(GJ)
at para 81.
[4]
However, in Msunduzi Municipality v Natal Joint Municipal
Pension/Provident Fund and Others
2007 (1) SA 142
(N) the Court said
the following:
"Counsel for the
fourth respondent relies on what was said in Moodley v
Scottburgh/Umzinto North Local Transitional Council
and another to
the effect that 'misconduct' must have an element of dishonesty. I
have been invited to disagree with that decision.
I am, with respect,
by no means convinced it is right. I hold no firm views on it because
it is not necessary for current purposes."
[5]
Not only was the above remark obiter, in fact the learned Judge
merely expressed her reservations about Moodley,
without expressing a
firm view one way or the other. Leave to appeal has been granted in
cases where there were express judgments
which contradicted one
another
[1]
. This is not such a
case. In Msunduzi the learned Judge did not make a finding on the
issue, and even if she had, it would have
been obiter. Against this
tentative remark in Msunduzi one finds the various cases in which the
dishonesty element has been emphasized.
In my view this is not a
matter in which certainty requires the attention of the Supreme Court
of Appeal.
[6]
Finally, applicants say that the judgment has implications for its
contractual relations with its employees,
and that they should
therefore be allowed to appeal the judgment in terms of section 17
(1) (a) (ii) of the Act. There is little
to no evidence in the papers
what these implications may be, and Mr Franklin did not pursue this
argument with any vigour. Suffice
it to say that I do not believe
that applicants' contractual relationship with its employees
constitutes, in the circumstances
of this case, a compelling reason
to grant leave to appeal.
[7]
I make the following order:
[7.1] The
application for leave to appeal is dismissed with costs.
SWANEPOEL
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
COUNSEL
FOR PLAINTIFF: Adv
A. Franklin SC
ATTORNEY
FOR PLAINTIFF: Webber
Wentzel Attorneys
COUNSEL
FOR DEFENDANT: Adv.
V. Makofane
ATTORNEYS
FOR DEFENDANT: Kubayi
and Kubayi Inc
DATE
HEARD: 15
June 2023
DATE
OF JUDGMENT: 19
June 2023
[1]
Nova Property Group Holdings Ltd and Others v Cobbett and Another
2016 (4) SA 317
(SCA) (MandG Centre for Investigative Journalism NPC
as amicus curiae)