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[2023] ZAFSHC 39
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Weyers v Department of Employment and Labour Free State Provincial Government and Others (231/2022) [2023] ZAFSHC 39 (14 February 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 231/2022
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ELZINA
WEYERS
Applicant
(PREVIOUSLY
COMBRINK / BESTER
And
THE
DEPARTMENT OF EMPLOYMENT AND LABOUR
1
st
Respondent
FREE
STATE PROVINCIAL GOVERNMENT
GOVERNMENT
EMPLOYEES PENSION FUND
2
nd
Respondent
THE
PRINCIPAL EXECUTIVE OFFICER
3
rd
Respondent
GOVERNMENT
EMPLOYEES PENSION FUND
HEARD
ON:
06 OCTOBER 2022
JUDGMENT
BY:
DANISO,
J
DELIVERED ON:
This judgment
was handed down electronically by circulation to the parties'
representatives by email and by release to SAFLII. The
date and time
for hand-down is deemed to be 15h30 on 14 February 2023.
[1]
On 2 March 2021, the applicant resigned with immediate effect from
her employment with the first respondent. At that time the
applicant
had been employed with the first respondent since 2009 and a member
of the second respondent’s pension fund (“GEPF”).
[2]
On 20 January 2022, approximately ten months after her resignation
the applicant launched an application against the respondents
seeking
an order on the following terms:
“
1.
That the First Respondent is directed and compelled to complete and
sign all documents necessary to enable the Applicant to withdraw
unemployment benefits payable to her from the Government Employees
Pension Fund (GEPF) under pension number: 9[...];
2.
Additional to prayer 1, that the First Respondent is directed to
submit the completed and finalized documentation to the Second
Respondent, within 15 days of service of this Court’s order;
3.
The costs of this application are to be paid by the First Respondent
and/or any Respondent who opposes the relied sought in this
application….”
[3]
The application was primarily directed at the first respondent and
the crux thereof was premised on the grounds that pursuant
to her
resignation, the applicant completed all the necessary documents that
would enable her to claim her pension benefits from
the GEPF however,
since then there has been a protracted delay by the first respondent
to sign the said documents with the result
that the applicant has not
been able to claim her pension benefits from the GEPF.
[4]
The application was opposed by the first respondent, essentially on
the grounds that the applicant was indebted to the first
respondent
for unpaid leave in the amount of R50 267.87 therefore, the
first respondent would only sign the required documents
only after
the applicant has signed an acknowledgement of debt. In addition, the
first respondent also filed a provisional counter
application in
terms of which it sought an order that the application be stayed or
postponed pending the finalization of a claim
that intended to
institute against the applicant in that regard.
[5]
At the commencement of the hearing, I was informed that the parties
have settled the matter the only issue which remained for
determination is that of costs.
[6]
The applicant was of the view that the first respondent should be
burdened with the costs because: the first respondent opposed
the
application and also launched a conditional counter-application while
being aware that the first respondent was not entitled
to withhold
the payment of the applicant’s pension benefits without the
applicant having signed an acknowledgement debt or
in terms of a
court order as provided for in S37D(1)(b) of the Pension Fund Act
[1]
(“The Act”) and s21(1) of the Government Employees
Pension Law Act.
[2]
The
applicant ultimately signed the acknowledgement of debt on 6 June
2022 but still, the first respondent did not sign the requirement
documents and insisted on opposing the matter. The first respondent
went further and even filed a further affidavit on the eve
of the
hearing.
[7]
Counsel for the first respondent argued to the contrary and averred
that the opposition and the counter-application was necessary
because
at the time of her resignation, the applicant was indebted to the
first respondent for the unpaid leave. The debt was disputed
in the
applicant’s papers and the dispute existed until the applicant
signed the acknowledgement of debt on 6 June 2022 in
terms of which
she admitted being indebted to the first respondent in the said
amount, the applicant must therefore pay the costs
of this
application including that of the counter-application.
[8]
It is trite that
when
awarding costs, the court has a discretion, which it must exercise
judiciously having regard to the facts of the case and fairness
and
equity to both sides.
[9]
On the facts germane to this matter, at the time when the applicant
launched this application she was aware of the debt that
was due to
the first respondent. In her papers she vehemently disputed the
amount and how it was computed. Despite that denial
and six months
after she launched the application and received the first
respondent’s opposing papers the applicant signed
an
acknowledgement of debt essentially admitting the debt asserted by
the first respondent.
[10]
I am of the view that the applicant’s eventual admission of the
first respondent’s debt militates against her contention
that
these proceedings were necessary to resolve the dispute between the
parties. There
were no exigent reasons for the applicant to
launch these proceedings.
[11]
On the other side, the provisions of s37D(b) (ii) (bb) of the Act
permit a pension fund to deduct any amount due by an employee
to the
employer pursuant to either an acknowledgment of debt signed by the
employee or based on a judgment obtained by the employer
against the
employee.
[12]
In this matter there is no explanation why the first respondent chose
to rather frustrate the applicant’s right to claim
the pension
benefits by refusing to sign the necessary documents instead of
invoking the provisions of s37D(b) (ii) (bb) by obtaining
a judgment
against the applicant.
[13]
In conclusion, I find that both parties are blameworthy for being
embroiled in these proceedings. These are precisely the kind
of
proceedings which the SCA in
S
ocratous
v Grindstone Investments
characterized as an “
unwarranted
proliferation of litigation where our courts are already under severe
pressure due to congested court rolls.”
[3]
[14]
In the circumstances, I grant the
following order:
ORDER
1.
Each party shall be responsible for the payment of its own costs in
respect of both the application and the counter-application.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of the applicant:
Adv. I. Macakati
Instructed
by:
Phatsoane Henney
Attorneys
BLOEMFONTEIN
Counsel
on behalf of the respondents:
Adv D.
De Kock
(first)
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Act No, 24 of 1956.
[2]
Act No, 35 of 2003 (as amended).
[3]
(149/10)
[2011]
ZASCA 8
(10
March 2011) at [16].