About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 32
|
|
South African Local Authorities Pension Fund v Mohokare Municipality and Another (4145/2021) [2023] ZAFSHC 32 (3 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4145/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SOUTH
AFRICAN LOCAL AUTHORITIES PENSION
FUND
Applicant
And
MOHOKARE
MUNICIPALITY
First Respondent
THE
MUNICIPAL MANAGER OF THE MOHOKARE
Second Respondent
MUNICIPALITY
JUDGMENT
BY:
C
REINDERS, J
HEARD
ON:
8 SEPTEMBER 2022
DELIVERED
ON:
3
FEBRUARY 2023
[1]
The applicant is the South
African Local Authorities Pension Fund (hereafter “the
Fund”).
This is an application to declare Mohakare Municipality (the first
respondent, hereafter “the Municipality”)
and the Second
Respondent (as Municipal Manager of the Municipality) in contempt of
court. Reference to the respondents jointly
will hereafter be “the
respondents”.
[2]
The genesis of this application is a dispute between the municipality
and the Fund
in respect of the former’s alleged failure to
effect payments to the Fund for the benefit of its (the
municipality’s)
employees. The dispute was referred to the
Pension Fund Adjudicator (the “Adjudicator”) which
dispute was resolved
when the determination dated 30 July 2020 was
handed down. The applicant was the complainant and the first
respondent was the respondent
in the proceedings.
[3]
The determination of the Adjudicator reads:
“
6.1.1 The
respondent is ordered to provide contribution schedule for August
2016 to November 2018 and January 2019 and April 2019
to the
complainant in order to facilitate the computation of its outstanding
contributions, within five weeks of this determination;
6.1.2 Should the
respondent fail to comply with paragraph 6.1.1, the complainant is
ordered to reconstruct the contribution schedules
based on the
information already in its possession, within two weeks of the
respondent’s failure to submit the schedules;
6.1.3 The complainant is
ordered to compute the arrear contributions and late payment interest
owed by the respondent in terms of
section 13A (7) of the Act, within
one week of receiving the contributions schedules in terms of either
paragraphs 6.1.1 or 6.1.2
(whichever is applicable);
6.1.4 The complainant is
ordered to transmit to the respondent its computation and details of
how it computed the arrear contributions
and late payment interest
within three days of completing them;
6.1.5. The respondent is
ordered to pay the complainant arrear contributions for the period
August 2017 to April 2019, plus late
payment interest as computed in
paragraph 6.1.3, within two weeks of receiving the computations from
the complainant; and
6.1.6 The complainant is
ordered to update the records of the respondent’s employees who
are its members within one week of
receipt of payment from the
respondent.”
[4]
Section 30(O) of the Pension Fund Act 1956 makes provision for
enforcement of the
Adjudicator’s determination:
“
30 (O)
Enforceability of determination
(1)
Any determination of the Adjudicator shall be deemed to be a
civil judgment of any court of law had the matter in question been
heard by such court and shall be so noted by the clerk or the
registrar of the court, as the case may be.
(2)
A writ of warrant of execution may be issued by the clerk or the
registrar of the court in question and executed by the sheriff of
such court after expiration of a period of six weeks after the date
of the determination on condition that no application contemplated
in
section (P) has been launched.
Section
30 (P) entails the right of an aggrieved party to approach the High
Court for relief where such party is aggrieved by the
determination.
[5]
The applicant moves for orders in the following terms:
“
1.
Declaring that the first respondent is guilty of contempt of court;
2.
Directing the first respondent to comply with the determination
within a period of five days
from date of the order;
3.
Failure to comply as ordered, then the duly authorised representative
of the first respondent,
Mr Selby Selepe, in his capacity as the
Municipal Manager of the first respondent, be committed to prison for
contempt of court
for a period of 12 months and a fine of R1 million;
4.
Costs of the application on the Attorney and own client and scale.”
[6]
The deponent to the applicant’s founding affidavit states that
the applicant
seeks to enforce the determination which, according to
the applicant, compelled the municipality to pay “some
specified moneys”
over to the applicant. It is clear from the
notice of motion (as quoted in the previous paragraph) that I am
called upon to firstly
find the municipality in contempt of court,
order compliance with “the determination”, failure
whereof the second respondent
be committed to prison for contempt of
court.
[7]
The respondents oppose the relief claimed on several grounds, amongst
others that
the purpose of contempt proceedings is not to enforce a
monetary judgment and that there was in any event compliance with the
determination.
[8]
The requirements for an order of contempt is trite: The applicant has
the onus to
prove (a) that a court order was granted; (b) that the
court order was served on the respondent or that the respondent had
knowledge
of the court order; and (c) that the court order was not
complied with by the respondent. If the applicant proves these
requirements
a presumption arises that the respondent’s
non-compliance is wilful and mala fide. Once the applicant has
satisfied the requirements
to prove contempt, an evidentiary burden
rests on the respondent to show reasonable doubt.
Should
the respondent fail to discharge this burden, contempt will have been
established.
[1]
[9]
In its answering affidavit the respondents do not deny either the
existence of the
determination or knowledge thereof. The issue
between the parties is rather whether there was compliance with the
determination,
and if not, the wilfulness and mala fides of such
non-compliance.
[10]
As the applicant is moving for an order of committal to jail the
applicable standard of proof
is beyond a reasonable doubt.
[2]
[11]
In the opposing papers the respondents contended that it was not in
contempt of the order. It
was submitted that on a proper reading of
the order, there was a duty upon the applicant in terms of paragraph
6.1.2 of the order
to reconstruct the contribution schedules based on
the information in its possession in case respondents failed to
provide the
contribution schedules referred to in para 6.1.1 of the
order. Once same had been computed, it was to be forwarded to the
respondent
where after the respondents were to pay same as envisaged
in 6.1.5. Respondents submitted that applicant failed to do so. It
stated
that applicant in its founding affidavit omitted to inform the
court that the respondents’ chief financial officer and
officials
of the applicant had a meeting on 9 November 2020 where an
outstanding amount was agreed upon. The respondents were required to
prepare a repayment plan which was done. It attached the plan to its
papers. The plan makes provision for payments up and until
June 2028.
[12]
Applicant in its replying papers did not seriously dispute the
allegations regarding the meeting
and payment plan, but simply made
the remark to the effect that “a year has since passed”
(with reference to the date
when the affidavit was attested to) and
that the respondents “however failed to indicate if they have
paid in terms of para
6.1.5 of the order or determination”.
[13]
I am not convinced that the above explanation of the respondents
regarding the meeting and suggested
payment plan can be rejected as
false beyond a reasonable doubt and am inclined to accept that this
is exactly what has happened.
The respondent is therefore not in
wilful default as suggested by applicant in its founding papers. The
order that the respondents
therefore be found guilty of contempt of
court cannot be sustained and stands to be dismissed.
[14]
In passing I might mention the following. I have referred herein to
the determination of the
adjudicator as an order. Section 30 (O)(1)
of the Pension Act deems an adjudication to be a civil judgment by a
court of law. I
have therefore referred thereto as an order. I am not
convinced however that such an order is an order for which I can
convict
an entity or person for contempt of court. Notwithstanding
what the statute ordains, it remains an adjudication made by an
adjudicator
who is not a judge nor a magistrate. It most definitely
is not an order issued by a court. It is an adjudication made by the
adjudicator
in terms of the specific act where a dispute has been
referred to it.
[3]
[15]
In my view section 30 (O)(1) simply statutorily elevates such a
determination to have the effect
of a civil judgment by a court of
law to facilitate the easy process of issuing a warrant to execute.
It would appear to me that
the applicant, instead of filing an
application to have the respondent held in contempt, should have
issued a warrant (having noted
the judgment with the clerk or
registrar of the court as the case may be). I would therefore have
dismissed the application on
the basis that the order was not an
order made by a competent court.
[16]
It is common cause that the first respondent is a member of the fund.
The complaint before the
adjudicator was that the municipality had
failed to pay contributions for the periods January 2015 to November
2018 and January
2019 to April 2019 in an estimated amount in the
region of 34 million rand. Counsel for the applicant invited me to
make any order
I deem fit to coerce respondent to effect payment,
suggesting that parties may be ordered to revise a payment plan.
Counsel for
the respondents submitted that applicant could have made
the payment plan an order of court. This matter had been finalised by
the adjudicator and I am not required to rehear that matter. I was
not called upon to adjudicate the application as a review or
an
appeal. I therefore refrain from making any comment safe to
strenuously urge upon the respondent and/or its representatives
and
remind them of the statutory and/or legal duty and imperative to see
to it that the calculated amounts (which does not belong
to any of
the respondents) be paid to the applicant.
[17]
The usual cost order is to have it follow the event. Respondents are
rather vague on payment,
and in this instance I intend to order each
party to pay its own costs.
[18]
In the circumstances I make the following order:
18.1 The
application is dismissed.
18.2 Each party to
pay its own costs
C
REINDERS, J
On
behalf of applicant:
Adv N Ralikhuvhana
Instructed by:
Prince Mudau and
Associates
c/o Webbers Attorneys
BLOEMFONTEIN
On
behalf of respondents:
Adv MC Louw
Instructed by:
Peyper Attorneys
BLOEMFONTEIN
[1]
Fakie
NO v CCII Systems (Pty) Ltd
2006 4 SA 326 (SCA)
[2]
Matjhabeng
Local Municipality v Eskom Holdings Ltd and Others
2018 (1) SA 1
(CC) at para [61]
[3]
See the reasoning of Dewrance AJ in
Mantsho
v Managing Director of the Municipal Employees Pension Fund
2015 JDR 1399 (GP) with reference to similar findings in respect of
other tribunals.
See
also:Joint Municipal Pension Fund and Another v Marthinus and
Another
, [2007] 1 BPLR 94 (W)
at 97 the court,
wherein
Snyders J (as she then was), after
analysing sections 30M read with section 30O, said the following:
"The purpose of
section 30M read with section 30O, is to give effect to the
determination by the Second Respondent not to
create jurisdiction
for the purpose of an appeal as submitted. The proceedings allowed
in terms of section 30P is not an appeal
in the usual narrow sense
of the word, the section specifically states that.
The
argument that the present proceedings are an appeal effectively from
a judgment of this Court is, in my view, fallacious.
The
determination by the Second Respondent is not a judgment by this
Court. It is deemed to be for a specific purpose of giving
effect
thereto
. That is the interpretation on the clear wording
of the Act, apparent from sections 30M, 30O and 30P. The
legislature, in my
view, refrained from referring in section 30P to
a Court (as referred to in section 30O(1)). If it did, the First
Applicant's
submission would have been perfectly valid
."
(own emphasis added)