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2023
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[2023] ZAFSHC 229
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Fourie v Vrystaat Munsipale Pensoenfonds (4184/2019; 879/2019) [2023] ZAFSHC 229 (29 May 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
No:4184/2019
Case
No: 879/2019
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
FRITZ
FOURIE
Applicant
and
VRYSTAAT
MUNSIPALE PENSOENFONDS
Respondent
IN
RE:
Case No:4184/2019
Case
No: 879/2019
In
the matter between:
MALCOLM
NEIL CAMPBELL N.O.
1
st
Plaintiff
VRYSTAAT
MUNICIPALE PENSIOENFONDS
2
nd
Plaintiff
[Registration
Number: 12[....]2]
And
FRITZ
FOURIE
1
st
Defendant
HB
RAUTENBACH
2
nd
Defendant
PH
MOTSOENENG
3
rd
Defendant
L
RABULANA
4
th
Defendant
PW
DE BRUIN
5
th
Defendant
R
COETZEE
6
th
Defendant
WJ
BOTES
7
th
Defendant
ELLOIS
SLABBERT
8
th
Defendant
HEARD
ON:
23 MAY 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 16h00 on 29 May 2023.
[1]
The applicant filed an interlocutory application on 23 May 2023
consisting of Parts A and B seeking leave
to amend his plea in case
number 4184/2019 and urgent interdictory relief for the payment of
interest on his pension benefit and
the payment of legal costs. Part
B was set down for argument on Friday 26 May 2023. The application
was postponed to 26 May 2023
after the applicant’s argument on
Part A was presented with directions that the respondent should file
its opposing affidavits
by 15h00 on Wednesday, 23 May, and the
applicant to file his replying affidavit, if so inclined, by 15h00 on
Thursday 24 May 2023.
The parties obliged and the respondent filed
its written argument titled the respondent’s Note on Argument
in Interlocutory
Application just before the commencement of the
hearing.
[2]
At the start of the hearing of the application, Mr Snellenburg, who
acted on behalf of the applicant, informed
the court that he
retracted some of his earlier submissions as it had come to his
attention that a similar amendment sought in
case number 879/2019,
which he thought had been effected, was not effected at all. He
sought the same amendment in both cases and
launched an application
for the substantive amendment in cases 879/2019 and 4184/2019 for the
inclusion of the sixth special plea.
I shall deal separately with the
reliefs sought in Parts A and B.
[3]
The relief sought in Part A reads as follows:
“
2.
Leave be granted to the applicant to amend his plea (as
first defendant) in case number: 4184/2019 by including
paragraph 5A
after the existing paragraph 5 and before paragraph 6 which reads as
follows:
“
5A
Sixth Special Plea
5A1 The First
Plaintiff instituted the action, in his nominal capacity, as Curator
of the Second Plaintiff [Die Vrystaatse
Munisipale Pensioen Fonds-
henceforth referred to as “the Free State Pension” where
convenient] by virtue of an appointment
purportedly made in terms of
section 5(10) of the Financial Institutions (Protection of Funds)
Act, Act 28 of 2001 [the Financial
Institution Act].
5A.2 The First
Plaintiff’s appointment provided that he had, amongst others,
the following powers and duties:
5A.2.1
Paragraph 14 states that:
“
subject
to what is stated in paragraph 15, the First Plaintiff is empowered
to take control and manage the fund, and any other person-
including
but not limited to the Board of Management and Officer involved with
the fund’s administration, now vested with
the management of
the business- is hereby divested thereof, subjected to paragraph 15
below”
5A.2.2
Paragraph 14.1 of the Letter of Appointment provides that the First
Plaintiff is authorised to take control
of, manage and investigate
the business and operations of and concerning the Fund, together with
all assets and interests relating
to the Fund, the authority to be
exercised subject to control of the register in accordance with the
provisions of section 5(6)
of the Financial Institution Act, and with
all rights as may be pertaining thereto.
5A.2.3
Paragraph 14.2 provides that First Plaintiff is vested with all
executive powers, which ordinarily be vested
in, and exercised by,
the Board and Principal Officer of the Fund (Second Plaintiff)
whether by law or in terms of the Rules of
the Fund.
5A.2.4
Paragraph 14.9 provides that the First Plaintiff is permitted to
engage, after consultation with the Registrar,
such assistance of
legal, accounting, administrative or other professional service of a
technical nature, as the First plaintiff
may reasonably deem
necessary for the performance of his duties and to defray reasonable
charges and expenses thus incurred from
the assets held under control
of the Fund.
5A.2.5
Paragraph 14.10 provides that the First Plaintiff is empowered to
institute and prosecute any legal proceedings
on behalf of the Fund
(Second Plaintiff) and to defend any litigation against the fund.
5A.2.6
Paragraph 15 provides that the First Plaintiff’s duties and
powers set out in paragraph 14 of the
Terms of Appointment are
subject to the following:
5A.2.6.1
That notwithstanding the Curatorship, the Board will retain control
over [and continue to have
all the powers granted to it under the PFA
(Pension Fund Act) and its rules] in respect of the following:
5A.2.6.1.1 The
High Court litigation presently pending under case number 67954/2015
regarding the validity or otherwise or
Regulation 34(4) issued under
the PVA, in which application the Registrar is a party; and-
5A.2.6.1.2 The
SALGA Nation Treasury Pension Fund rationalization dispute; and-
5A.2.6.1.3 Any
alteration or change in the investment of the Fund’s assets,
excluding the regular payments of benefits
and/or pensions to members
and payments to the staff and services providers to the Fund in terms
of their respective contracts.
5A.3 The
appointment letter is dated 8 September 2017, the action under
consideration was issued on/about 22 February
2019.
5A.4 The
Second Plaintiff was represented by the First Plaintiff and the
action is instituted by the First Plaintiff
on behalf of the Second
Plaintiff. Its Principal Officer, Board and any other person was
effectively divested of control, save
for the powers expressly
excluded in paragraph 15, which have been dealt with and Curator is
the only person who has authority
to institute and prosecute an
action.
5A.5 The
Second Plaintiff did not, nor could it, take any decision to
institute and prosecute the action.
5A.6 The
Second Plaintiff did not have any locus standi when the action was
instituted, and did not, and could not pursue
the claim.
5A.7 The
First Plaintiff’s appointment was withdrawn, and he is no
longer capable to pursue the claims.
5A.8 The
claims were not prosecuted to finality, by the First Plaintiff, in
terms of section 15(2) of the Prescription
Act, and as a result, all
the claims have prescribed.
5A.9
Alternatively, it is denied that the second plaintiff was validly and
lawfully appointed, or could be appointed
as independent trustee.
WHEREFORE the First
Defendant prays that the Plaintiff’s claims be dismissed with
costs.
2.
Costs pertaining to the application for leave amend only in the event
of opposing the application.
3.
Further and/or alternative relief.”
[4]
The respondent opposed the application stating that it was sent to
the respondent’s attorneys per email
at 20h17 on Monday 22 May
2023 and issued on the morning of 23 May 2023 and set down for
hearing before the commencement of the
consolidated cases which were
to commence on the latter day. In the main, the argument was that the
urgency on which the applicant
relied was self-created and the
respondent stood to suffer prejudice as the respondent had not
prepared for the trial on the basis
that an amendment had been
effected in case number 879/2019 as required by the applicable
Uniform Rule. Inherent in the amendment,
it was contended, was the
withdrawal of the admission of the respondent’s locus standi as
paragraph 4 of the Particulars
of claim containing the description of
the respondent, was and remained admitted by the applicant.
[5]
It is indeed so that a fact that is admitted is eliminated from the
issues to be tried and the plaintiff is
relieved of the duty of
bringing evidence to establish it.
[1]
The
withdrawal of the admission of the respondent’s
locus
standi
,
it was contended, would cause irreparable prejudice to the respondent
since the decision to withdraw Mr Campbell’s curatorship
was
informed at that stage by the admission of the respondent’s
locus
standi
.
On the contrary, the applicant argued that the termination of the
curatorship was that it had come to an end and the curator was
duly
relieved of his duties as evidenced by the correspondence to that
effect.
[6]
Uniform
Rule 28 regulates the amendments of pleadings and documents. Rule
28(10) provides that
the
court may, notwithstanding anything to the contrary in this rule, at
any stage before judgment, grant leave to amend any pleading
or
document on such other terms as to costs or other matters as it deems
fit. In
Moolman
v Estate Moolman,
[2]
it
was stated that:
“‘
[T]he
practical rule adopted seems to be that amendments will always be
allowed unless the application to amend is mala fide or
unless such
amendment would cause an injustice to the other side which cannot be
compensated by costs, or in other words unless
the parties cannot be
put back for the purposes of justice in the same position as they
were when the pleading which it is sought
to amend was filed.”
[7]
Where a party would be no worse off if the amendment were granted
with a suitable order as to costs than if
his adversary’s
application or summons were dismissed unamended and proceedings were
commenced afresh, there is no prejudice
in granting the amendment:
the mere loss of the opportunity of gaining time is not in law
prejudice or injustice
[3]
.
[8]
In
Vinpro NPC v President of the Republic of South Africa and Others
,
[4]
the full bench of the Western Cape Court summarised the principles
relating to amendments as follows:
“
[25]
On this score, it is trite law: that
a court is vested with a discretion as to whether to grant or refuse
an amendment: that an
amendment cannot be granted for the mere asking
thereof: that some explanation must be offered therefor: that this
explanation
must be in the founding affidavit filed in support of the
amendment application: that if the amendment is not sought timeously,
some reason must be given for the delay: that that party seeking the
amendment must show prima facie that the amendment
has
something deserving of consideration: that the party seeking the
amendment must not be mala fide: that the amendment must not
be the
cause of an injustice to the other side which cannot be compensated
by costs: that the amendment should not be refused simply
to punish
the applicant for neglect and that mere loss of time is no reason, in
itself, for refusing the application.”
[9]
A court is not obliged to consider prejudice to the other side where
an amendment to a pleading retracting
an incorrectly admitted legal
consequence is being sought, for only the law would be prejudiced if
cases were to be decided on
what parties might in ignorance have
agreed the law to be. The discretion of the court to relieve a party
from the consequences
of an admission made in error in a pleading
should not be exercised in any other way than by granting an
amendment of that pleading.
[10]
In
POTTERS
MILL INVESTMENTS 14 (PTY) LTD v ABE SWERSKY & ASSOCIATES AND
OTHERS
[5]
it
was held that “A court was not obliged to consider prejudice to
the other side where an amendment retracting an incorrectly
admitted
legal consequence was being sought, for only the law would be
prejudiced if cases were to be decided on what parties might
in
ignorance have agreed the law to be.”
[11]
The applicant has to prove that he did not delay the application
after he became aware of the material upon which he
proposes to rely.
He must explain the reason for the amendment and show prima facie
that he has something deserving of consideration:
a triable issue.
Three cases are currently pending between the parties under case
numbers 879/2019, 8414/2019 and 2972/2019. The
first two have been
consolidated and were set down for hearing on 23 May 2023. The third
was set down for trial on 11 April 2023
but had to be postponed to
October 2023 as the applicant filed an intention to amend two days
before the start of the trial. That
amendment sought to introduce the
same special plea as is sought in the present cases. The tardiness on
the papers is inescapable
but the delay in bringing forward an
amendment is, in itself, in the absence of prejudice, no ground for
refusing an amendment.
In the absence of prejudice to the other
party, leave to amend may be granted at any stage, however careless
the mistake or omission
may have been, and however late the
application for amendment may be.
[6]
[12]
Having looked at the long history of the “
thrust and parry”
between the parties in the various cases, I find that the applicant
does have a triable issue which is deserved of consideration
and full
ventilation. The respondent sought the dismissal of the application
with a punitive costs order. The applicant conceded
that he was
liable for the payment of the wasted costs brought about by the late
filling of the application.
[13]
The relief sought in Part B reads as follows:
“
1.
Condonation be granted for non-compliance with process, form and time
periods for service, insofar as relevant.
2. The
respondent immediately makes payment to the applicant, in casu, of
the monthly interest earned on the investment of
the applicant’s
pension benefit, the amount of such investment being R 19, 739,
733.41, at the Money Market rate of return
applicable to the relevant
Money Market account, maintained by the Fund’s administrators
from time to time for purpose of
holding the investment of the
applicant’s pension benefit, for the months of November 2022,
December 2022, January 2023,
February 2023, March 2023, April 2023.
3. In the
event of the respondent failing or refusing to immediately make
payment of the amounts in terms of paragraph
2 above, the trial
stands down until payment of the aforesaid amounts have been made.
4. The
respondent be ordered to pay the aforesaid monthly interest in terms
of the court order punctually to the applicant.
5. That
the respondent pays the applicant’s legal costs (as first
defendant) until date, upon presentation of
the invoices by my legal
practitioners in terms of the decision of the executive committee of
the respondent, taken on 28 February
2017, and specifically item 2
thereof as well as such fees and expenses as may become payable in
future with regards to the proceedings.
6. Costs
regarding the relief for payment of the monthly interests, such costs
to include the costs occasioned by the
employment of 2 counsel.
7.
Further and/or alternative relief.”
[14]
The question that arises in this Part is whether the applicant should
have approached the court in the manner that he
did. Mr Joubert, on
behalf of the respondent, did not think so and contended that the
applicant had ample time and opportunity
to pursue by other means the
two reliefs sought in this Part. The applicant’s reliance on
the resolution that his legal fees
were to be paid by the respondent,
he argued, had long been rescinded by the curator on assuming his
duties, a fact of which the
applicant was fully aware.
[15]
The claim for the pension interest is ensconced in the agreement
between the parties which was made an order of the court
on 06
February 2020. The order provided that the payment of any pension
benefits to which the applicant was entitled, was suspended
pending
the final determination of the actions instituted by the respondents
under case numbers 879/2019, 2927/2019 and 4184/2019.
The amount of R
2 000 000.00, which included all interest on the investment
of the applicant’s pension benefit
from December 2018 until 31
January 2020 was paid to the applicant. The monthly interest on the
investment of the applicant’s
pension benefit was payable
monthly in arrears. These monthly payments were effected until 7
December 2022 when the respondent
began to set off the monthly
interest payments against the taxed bill of costs in the amount of
R 667 000.00 incurred
in case number 879/2019. According to
the respondent, the remainder of the monthly interest in the amount R
62 593.31 was
paid to the applicant on 07 May 2023.
[16]
According to the respondent, the applicant was invited on 11 October
2022 and November 2022 to effect payment in respect
of the taxed bill
of costs but to no avail. On 13 December 2022, the applicant’s
attorneys requested payment of the monthly
interest for the month of
December from the respondent’s attorneys. On 14 December 2022 a
demand was made to the respondent’s
attorneys to pay the
monthly interest failing which a warrant of execution would be
issued.
[17]
The applicant stated that the service of the warrant of execution was
a futile exercise as the respondent was no longer
at its Kroonstad
offices. The forwarding address that was furnished by the
respondent’s employee yielded no results with
the consequence
that the applicant had no other remedy but to approach the court in
the manner that he did. The respondent stated
in its affidavit that
the warrant which was issued on 20 January 2023 could not be served
on 20 April 2023 due to the respondent’s
service address not
being in the jurisdiction of the sheriff of the court. Since 20 April
2023, the applicant did nothing to pursue
obvious, quick, and
cost-effective recourse such as sending to warrant to the
respondent’s legal representative despite being
invited to do
so.
[18]
The respondent contended that the substantial redress available to
the applicant since 07 December 2022 included:
(i) Writing
to the respondent to demand payment;
(ii) Serving a writ
of execution on the respondent’s legal representatives, as
requested; and
(iii) Instituting
urgent mandatory relief to compel the respondent to pay his monthly
interest. The applicant failed to do
so.
[19]
The applicant’s urgency was self-created as he was aware that
he would not be receiving the monthly interest as
early as 11 October
2022 and the set off against his monthly interest payment commenced
as early as 07 December 2022. Since these
dates, the applicant had in
his position all of the necessary information and documents to
institute proceedings to enforce the
payment of the interest claim.
Instead, he only launched this application on an urgent basis on the
eve of the hearing of this
matter.
[20]
The difficulty that the applicant has in this application is urgency.
During argument, when this question was posed to
Mr Snellenburg, the
latter’s response was that the urgency lay in the ongoing wrong
of the monthly payments not being paid
to the respondent. Looking at
the facts of this case and the applicant’s own version, any
urgency in the matter is entirely
self-created. Since December 2022,
the applicant knew about the payments which were withheld and the
half-hearted attempts at the
execution of the warrant are not
convincing. The applicant failed to show the urgency which would
entitle him to the relief sought
in the application on an urgent
basis. This part of the application must fail.
[22]
It is trite that the successful party is entitled to an order for
costs.
[23]
Accordingly, I make the following orders:
Order:
1.
Part A
1.1
The applicant (as the defendant) is hereby
granted leave to amend the pleas in accordance with the notice given
by him on 22 May
2023.
1.2
The applicant is to pay the respondent’s
wasted costs which shall include the employment of two counsel.
2.
Part B
The urgent application
contained in Part B is struck from the roll with costs for lack of
urgency.
MHLAMBI,
J
On
behalf of the Applicant: Adv
N Snellenbug SC,
Adv
Van Rensburg/ Adv L Moeng
Instructed
by: EG
Cooper Majiedt
77
Kellner Street
Westdene
Bloemfontein
On
behalf of the respondent: Adv. DC
Joubert SC, Adv N Mauritz
Instructed
by: Symington
& De Kok Attorneys
169B
Nelson Mandela Drive
Westdene
BLOEMFONTEIN
[1]
Erasmus:
Superior Court Practice: RS 20, 2022, D1-331.
[2]
1927
CPD 27
at 29.
[3]
Erasmus:
Superior Court Practice: RS 20, D1-332.
[4]
(1741/2021)
[2021] ZAWCHC 261
(3 December 2021); Nala Local Municipality v LFC
Meule (Pty) Ltd (Unreported, FB Case No 617/2018 dated 14 March
2022.
[5]
2016
(5) SA 202 (WCC)
[6]
Trans-Drakensberg
Bank Ltd (Under Judicial Management) v Combined Engineering (Pty)
Ltd and another
1967 (3) SA 632
(D).