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[2023] ZAKZPHC 142
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Umgungundlovu District Municipality v Natal Joint Municipal Pension Fund and Another (7187/2022P) [2023] ZAKZPHC 142 (23 November 2023)
FLYNOTES:
PENSION
– Withholding of benefit –
Claim
by employer
–
Overpayment
of travel allowance – Employment terminated after misconduct
findings – Employee not admitting liability
and employer
having instituted action but not having obtained judgment –
Confirmation of rule nisi – Withholding
payment pending
determination of action or acknowledgement of such member’s
liability – Letter from pension fund
not final refusal to
withhold the monies so final relief not granted – Fund
interdicted from paying amount pending
it making final decision on
employer’s written request to withhold such monies –
Pension Funds Act 24 of 1956,
s 37D(1)(b).
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NO:
7187/2022P
In
the matter between:
UMGUNGUNDLOVU
DISTRICT MUNICIPALITY
Applicant
And
NATAL
JOINT MUNICIPAL PENSION FUND
First
Respondent
MSAWAKHE
PHINDAKUPHI
JOHANNES
BHENGU
Second
Respondent
ORDER
The
following orders are issued:
1.
The second respondent is granted condonation for
the late filing of his heads of argument.
2.
The rule
nisi
of
17 June 2022 is confirmed and varied to read as follows:
‘
That
the First Respondent is hereby interdicted and restrained from paying
the amount of R416 213.82 or any lesser amount held by
it as a
pension benefit to the Second Respondent pending the First Respondent
making a final decision on the applicant’s
written request to
withhold such monies.’
3.
The second respondent is directed to pay the costs
occasioned by the application.
JUDGEMENT
HENRIQUES
J
Introduction
[1]
This opposed application concerns the confirmation
of a
rule nisi
granted
on 17 June 2022 by Mlotshwa AJ and is opposed by the second
respondent.
[2]
The rule
nisi
of
17 June 2022 reads as follows:
‘
2.1
That
the First Respondent
NATAL
JOINT MUNICIPAL PENSION FUND
,
be and is hereby interdicted and prevented from paying the amount of
R416 213.82 or any lesser amount held by the First Respondent
as a
pension benefit to the Second Respondent;
2.2
That First Respondent be interdicted and
restrained from realising and/or making a payment to an amount of R
R416 231.82 of the
Second Respondent’s pension benefits pending
the finalisation of the civil claim for damages instituted by the
Applicant
against the Second Respondent in the KwaZulu-Natal High
Court in Pietermaritzburg.
2.3
That the First Respondent is directed to withhold
the Second Respondent’s pension benefit in the amount of R416
231.82 pending
finalisation of the claim for damages referred to in
prayer 2.2 above, provided that the First Respondent is not required
withhold
any amount over and above the amount due to the Second
Respondent in terms of its registered rules.’
[3]
In respect of costs although paragraph 3 of the
rule
nisi
in
the notice of motion made provision for costs to be paid by any of
the respondents who unsuccessfully opposed the application,
the rule
nisi
which
was issued did not make provision for such costs and merely reserved
costs. On the subsequent adjournments and extension of
the
rule
nisi
costs were ordered to be costs in the cause.
Issues for determination
[4]
The sole issue for determination is whether the
applicant is entitled to the final interdictory relief pending the
outcome of the
action instituted by the applicant against the second
respondent in this court under case number 6152/2022P. The action
relates
to a claim for damages arising from an overpayment of R416
213.82 to the second respondent arising from his misconduct.
Background to the
application
[5]
It is perhaps useful at this juncture to set out
the common cause, alternatively undisputed, facts which preceded the
application.
The second respondent had commenced his employment with
the applicant on a permanent basis on 2 May 2007 as a Manager: Human
Resources.
In 2021, the internal audit division of the applicant
conducted an audit to determine the cause of the exorbitant travel
allowances
which had been paid, and to provide a report to the
accounting officer with recommendations in terms of the
Local
Government: Municipal Finance Management Act 56 of 2003
.
[6]
The report revealed that there were a number of
overpayments made in respect of the travel allowances of certain
employees including
the second respondent which overpayment emanated
from the pre-existing travel allowance policy. As a consequence, and
after consultation
with employees, a new travel allowance policy was
drafted and approved by the applicant's council for the payment of
travel allowances.
The adoption of such new travel allowance policy
put an end to the payment of excessive travel allowances.
[7]
In July 2022, the applicant addressed
correspondence to all its employees who qualified for car allowances,
including the second
respondent, informing them of the newly approved
travel allowance policy for car allowances of R14 777.73. Pursuant to
such correspondence
the second respondent and 22 employees embarked
on an illegal strike in
July 2022
protesting against
the new travel allowance
policy as well as the new car allowance amounts approved by council.
[8]
In October 2021 the Labour Court dismissed an
urgent application by the second respondent and other employees based
on what they
termed the unilateral change to the terms and conditions
of their employment in which they demanded that the old travel
allowance
policy be reinstated. After the dismissal of the urgent
application in the Labour Court, the second respondent and other
employees
pursued an unfair labour practice dispute which is pending
arbitration.
[9]
In the interim, on 18 November 2021 pursuant to
disciplinary proceedings the second respondent was charged with 10
counts involving
inter alia
gross
dishonesty, gross misconduct, gross dereliction of duty. After a
disciplinary hearing on 22 February 2022, the Chairperson
of the
disciplinary enquiry, Ms Hlengwa, found the second respondent guilty
of 8 of the 10 misconduct counts and recommended the
summary
dismissal of the second respondent. Pursuant to such recommendation
the applicant terminated the second respondent's employment
on 4
March 2022.
[10]
It was only during the course of the disciplinary
proceedings in December 2021, the applicant discovered that the
second respondent
had received an overpayment of his travel allowance
in the amount of R416 213.82 and had unduly benefitted at the
applicant’s
expense. On 27 May 2023, the applicant discovered
that the second respondent had resigned his membership of the first
respondent
and had on 23 April 2022 filed a claim to withdraw his
pension benefits. At no stage prior to this had the applicant been
informed
by the second respondent that he intended to withdraw his
pension benefits from the first respondent.
[11]
Subsequently, after confirming with the first
respondent that the applicant had filed a claim to withdraw his
pension benefits,
on 30 May 2022 the applicant wrote to the first
respondent invoking the provisions of s 37(D) of the Pensions Fund
Act 24 of 1956
(the Act) requesting the first respondent to withhold
payment of his pension benefits pending the finalisation of its civil
claim
for damages.
[12]
On 3 June 2022 a response was received from the
first respondent merely repeating the provisions of s
37(D)(1)
(b)
(ii).
All the letter did was reiterate what the requirements for a
deduction of pension benefits were in terms of s 37(D)(1)
(b)
(ii)
for monies to be withheld.
Such letter did
not in any way deal with the merits of the request.
[13]
On 13 May 2022 the applicant instituted an action
against the second respondent which action is being defended.
[14]
In opposition to the application the second
respondent disputes that his membership terminated with the first
respondent due to
his dismissal by the applicant.
In
addition, he challenges the lawfulness of the dismissal.
The
basis for seeking the interdict has also been disputed and that he
will not be able to pay or satisfy any damages claim should
the
applicant succeed in its action against him. He denies that any
damages which the applicant suffers is due to dishonesty or
misconduct on his part. He submits that the reason for proceeding
with the withdrawal of his benefit was as he needed to fund the
litigation instituted by the applicant against him.
[15]
In addition, he pleads that the application is
premature and ought to be referred and dealt with by the Pension
Funds Adjudicator
and seeks to have the application dismissed on an
attorney and own client scale.
[16]
In reply, the applicant submits that the order
being sought is for a preservation of funds limited to an amount of
R416 213.82 and
that such order is premised on the provisions of s
37(D)(1)
(b)
(ii)
of the Act.
It does not seek to preserve
all the pension funds due to the second respondent, but only a
limited amount to ensure that it will
obtain redress in due course.
[17]
Prior to the hearing of the opposed application
the matter served before Acting Judge Wallis who directed a query to
the parties
which read as follows:
‘
2.
Acting
Judge
Wallis
requests
that
the
parties
be
in
a
position
to
address
the
following
questions:
(a)
Does the First Respondent's letter of 3 June 2022
(annexure DRMN6) constitute a final refusal to withhold?
(b)
What do the parties contend is the test for relief
when the Court is moved for interdictory relief in respect of pension
fund benefits.
In this regard, the parties are referred to:
i.
SA Metal Group Pty Ltd v Jeftha and others
[2020] (1) BPLR 20 (WCC);
ii.
Tongaat Hulett Sugar South Africa Ltd v Tongaat
Hulett Pension Fund 2010 and others
(AR
27/2022) [2023] ZAKZPHC 34 (3 March 2023);
iii
Hansen + Genwest Pty Ltd v Corporate Selection
Umbrella and others
[2023] JOL 57697
(GJ);
(c)
If it should be determined that annexure DRMN 6 is
not final, then depending on the test against which the claim is to
be assessed,
whether the existing relief is competently formulated.’
[18]
The court provided the parties an opportunity to
file supplementary written submissions. Only the applicant took up
the invitation.
Regrettably, such further submissions did not
pertinently deal with queries raised by the acting judge.
The legal position
[19]
The
requisites for a final interdict are trite but it may be helpful to
remind ourselves of what they are. The requisites are a
clear right,
an injury actually committed or reasonably apprehended and the
absence of some similar protection by any other ordinary
remedy.
[1]
The
requirement for establishing a clear right involves proof on a
balance of probabilities and the applicant has to show that he
has a
clear or definitive legal right. In relation to the second
requirement an applicant must show that the clear right has been
infringed by the respondent to his prejudice, prejudice being actual
or potential. In respect of the third requirement, an applicant
must
establish that a final interdict is the only appropriate form of
relief and that there is no other alternate remedy.
[20]
The section upon which the applicant relies to
protect its right to pursue the recovery of money allegedly
misappropriated by its
employee is section 37D(1)
(b)
(ii)
of the Act. This section provides as follows:
‘
(b)
deduct
any amount due by a member to his employer on the date of
his
retirement or on
which
he
ceases
to
be
a
member
of
the
fund,
in
respect
of-
(i) . . .
(ii) compensation
(including any legal costs recoverable from the member in a matter
contemplated in subparagraph
(bb)
) in respect of any damage
caused to the employer by reason of any theft, dishonesty, fraud or
misconduct by the member, and in
respect of which-
(aa)
the
member
has
in
writing
admitted
liability
to
the
employer;
or
(bb)
judgment has been obtained against the member in
any court, including a magistrate's court,
from
any
benefit
payable
in
respect
of
the
member
or
a
beneficiary
in
terms
of
the
rules
of
the
fund,
and pay
such
amount
to
the
employer
concerned’.
[21]
The second respondent has neither admitted
liability, nor has he pertinently dealt with the serious allegations
made against him
by the applicant. On the other hand, the applicant
has not obtained judgement against the second respondent in any court
of law.
[22]
The
locus
classicus
in
relation to the provisions of section 37 is the decision in
Highveld
Steel and Vanadium Corporation Ltd v Oosthuizen
.
[2]
The issue in
Highveld
Steel
was
whether the board of the respective pension funds had the power to
withhold payment of pension benefits due to an employee,
pending the
outcome of the damages action to be instituted. Maya JA writing for a
full court held that:
‘
.
. . the object of s 37D(1)
(b)
is
to protect the employer's right to pursue the recovery of money
misappropriated by its employees.’ (footnote omitted)
[23]
Such approach was supported by the plain wording
of the section and was correct. The court recognised the practical
difficulties
which may render the efficacy of such a remedy
meaningless as employers may only suspect dishonesty after
termination of an employee’s
service and fund membership with
the consequence that pension benefits are
often
paid
out
before
the
suspected
dishonesty
can
be
properly
investigated.
In addition, it may only be in a small number of
cases that an employer is able to obtain judgement against an
employee at the time
the latter's employment is terminated. Maya JA
disagreed with the contention that either proof of liability must be
available on
termination of employment or a judgement obtained.
[24]
Later
in the judgment the court held the following:
[3]
‘
[19]
Such an interpretation would render the protection afforded to the
employer by s 37D(1)
(b)
meaningless,
a result which plainly cannot have been intended by the legislature.
It seems to me that to give effect to the manifest
purpose of the
section, its wording must be interpreted purposively to include the
power to withhold payment of a member's pension
benefits pending the
determination or acknowledgment of such member's liability. The Funds
therefore had the discretion to withhold
payment of the respondent's
pension benefit in the circumstances. I daresay that such discretion
was properly exercised in view
of the glaring absence of any serious
challenge to the appellant's detailed allegations of dishonesty
against the respondent.
[20] Considering the
potential prejudice to an employee who may urgently need to access
his pension benefits and who is in due course
found innocent, it is
necessary that pension funds their discretion with care and in the
process balance the competing interests
with due regard to the
strength of the employer's claim. They may also impose conditions on
employees to do justice to the case.’
(footnote omitted)
[25]
During the course of argument various criticisms
were levelled in relation to the manner in which the applicant
pleaded its case.
It is correct that the charge sheet indicating the
various charges which the second respondent faced was not annexed.
One is not
able to discern from such document apart from the
allegations in the founding affidavit and in the replying affidavit
that the
dismissal of the second respondent related to allegations of
misconduct and/or dishonesty. In addition, only the first two pages
of the summons are annexed. The full particulars of claim have not
been annexed so the court is not aware of the averments and
the cause
of action which the applicant relies on for its claim in the action.
Once again inferences must be drawn from the affidavit
and oral
submissions.
[26]
Our
courts have been critical of legal practitioners who annex annexures
to affidavits without dealing with the contents thereof.
This
has been pertinently been dealt with in
Swissborough
Diamond Mines (Pty) Ltd and others v Government of the Republic of
South Africa and others
[4]
where
the court said the following:
‘
Regard
being had to the function of affidavits, it is not open to an
applicant or a respondent to merely annexe to its affidavit
documentation and to request the Court to have regard to it. What is
required is the identification of the portions thereof on
which
reliance is placed and an indication of the case which is sought to
be made out on the strength thereof. If this were not
so the essence
of our established practice would be destroyed. A party would not
know what case must be met.’
[27]
These
sentiments were echoed in
Minister
of Land Affairs and Agriculture and others v D & F Wevell Trust
and others
[5]
where
the court said the following:
‘
A
party cannot be expected to trawl through lengthy annexures to the
opponent's affidavit and to speculate on the possible relevance
of
facts therein contained. Trial by ambush cannot be permitted.’
[28]
A further cause of concern relates to annexure
DRMN 6 and the query submitted by Acting Judge Wallis. The parties
were invited to
file supplementary heads. Only the applicant took up
the invitation. It was submitted on behalf of the applicant that the
letter
of 3 June 2022 by the first respondent constituted a final
refusal to withhold the monies. Ms Ntuli indicated that the first
respondent
had elected not to enter the proceedings and the applicant
was at a loss as to what to do. She submitted however, that the
applicant
had requested the first respondent to withhold the pension
benefits and has obtained an order in that regard. The first
respondent
has either failed to respond or unreasonably refused to
acquiesce necessitating the obtaining of the interim order.
[29]
The applicant takes the stance that the first
respondent was required to ask the second respondent to make
representations relating
to the applicant's request to withhold a
portion of his pension benefits. It concedes that it is not in a
position to explain whether
the first respondent had made such
enquiries as the first respondent has not filed an affidavit nor has
it opposed the proceedings.
In addition, Ms Ntuli could not explain
why any follow up correspondence was not sent by the applicant’s
attorney requesting
a final decision.
[30]
There was however, a concession in the
supplementary written submissions and during the course of argument
by the applicant, that
all that the first respondent did in such
correspondence was repeat the requirements of section 37D(1)
(b)
(ii)
and therefore it could have been construed as a final refusal.
[31]
During the course of the submissions on behalf of
the second respondent Mr Mahlobo indicated that there is no clear
indication from
the papers that the requirements of s 37(1)
(b)
(ii)
have been met. There is no direct evidence that the amount owing to
the applicant emanates as a consequence of theft, dishonesty,
fraud
or misconduct by the second respondent. He conceded that based on the
judgement in
Highveld Steel
the
section was wide enough to cover cases still pending before court,
provided however that the requirements of the section were
met.
[32]
He
submitted that there was insufficient evidence before the court that
the amount due to the applicant emanated from misconduct
by the
second respondent. In support of this submission he relied on the
decision in
Boshoff
v Iliad Africa trading (Pty) Ltd t/a Builders Market Welkom
[6]
where
the court stated the following:
‘
I
pause to point out that it is not every civil judgment that can be
enforced by an employer against an employee through the provident
fund. The section specifies the genus of claims that may be enforced
by the employer against the employee and directly recovered
by the
employer from the provident fund. An employer’s recourse
against the provident fund is an avenue available only in
very rare
cases. The golden thread which runs through all such exhaustively
classified genus of debts or claims is a
causa
tainted
by an element of discreditable or untrustworthy conduct on the part
of an employee towards his employer –
vide
ss
(1)(b)(ii) of section 37D.’
[33]
The basis for the applicant's interdict as pleaded
against the second respondent arises from an overpayment for travel
expenses,
rather than it suffering a loss as a consequence of
dishonest conduct. Consequently, it cannot invoke the section.
[34]
As an
alternate argument he submitted that there was a dispute of fact and
that the court cannot grant a final order given the circumstances.
[7]
He
submits that the basis for the claim once again is that the second
respondent unduly benefited at the expense of the applicant
in the
amount claimed emanating from an overpayment of travel allowances.
[35]
The second respondent has indicated that on the
applicant's own version the travel allowance policy was amended after
an audit report
and investigation submitted to council. This new
policy was challenged by the second respondent and other employees of
the council
on the basis that it constituted an unfair labour
practice as it constituted a unilateral change to the terms and
conditions of
their employment. Although they were unsuccessful in
the Labour Court in the urgent application, it is common cause that
the unfair
labour practice is pending as a dispute currently awaiting
arbitration and has not been finally determined.
[36]
In the result he submitted that there was a
dispute of fact and the court could not in those circumstances grant
a final interdict.
It is correct that the second respondent has
contented himself with a bare denial and has not specifically set out
facts to challenge
the allegations in the founding affidavit. He has
merely denied that the amount owing was as a consequence of
misconduct and indicates
rather that it was as a consequence of an
overpayment of travel allowances by the applicant.
[37]
He refrains from engaging with any substantive
allegations made in the applicant's affidavit, firstly in relation to
the fact that
the amount owing arises from any misconduct, theft or
dishonesty on his part, although he admits that he was dismissed
pursuant
to a disciplinary
enquiry
pertaining
to
misconduct.
Secondly,
he
does
not
indicate
that
the
applicant if successful in the action will be able to recover the
monies owing from him in the event of it obtaining a judgement.
All
he says is that he is presently unemployed and denies that he will
not be able to satisfy any judgement if obtained.
[38]
In essence, what the applicant seeks is an order
that a portion of the pension benefit due to the second respondent is
withheld
pending resolution of its claim against the second
respondent.
[39]
The
purpose of section 37D(1)
(b)
of
the Act is to protect an employer's right to pursue recovery of
misappropriated monies.
[8]
[40]
Although
s 37D(1)
(b)
does
not specifically make provision for the withholding of a benefit,
having regard to
Highveld
Steel
[9]
it is
evident that to give effect to the purpose of s 37, which is to
protect an employer's right to recovery of misappropriated
monies,
the wording in the section must be interpreted to include the power
to withhold payment of the member’s pension benefits
pending
the determination of an action or acknowledgement of such member’s
liability. Whilst s 37D of the Act must also be
read in conjunction
with the relevant rules of the applicable fund, a member also
includes a former member who has not received
all his benefits that
may be due to him or her from the fund.
[10]
[41]
In my view, given the
prima
facie
facts alluded to in the founding
affidavit and the annexures it is evident that the allegations made
by the applicant point to the
fact that the second respondent
received payment of the amount claimed arising from dishonesty and
misconduct. The second respondent
has not disputed this pertinently
in his affidavit and has not put up any contrary evidence to
challenge this. In my view, the
allegations and annexures
to
the
founding
affidavit
are
sufficient
to
prima
facie
point
to
the
second respondent's misappropriation of funds.
There is no dispute of fact.
[42]
The applicant is constitutionally enjoined when it
involves public monies in keeping with the principles of good
corporate governance
and administration, to take all necessary steps
to recover monies inadvertently paid over or misappropriated in the
public interest.
The applicant has indicated the monies due are as a
result of misconduct. Interestingly enough, the second respondent has
not challenged
the allegations of misconduct relied on by the
applicant in this application. Thus, the applicant has satisfied the
first requirement
for a final interdict.
[43]
In relation to the irreparable harm the applicant
has indicated that the second respondent is unemployed and does not
have any assets
to satisfy any judgement it may obtain in due course.
The second respondent has merely denied this and has not placed any
facts
before the court to gainsay this. Thus the applicant has
satisfied the requirement for irreparable harm.
[44]
Turning now to consider the balance of
convenience, the applicant submits that the balance of convenience
favours the grant of the
interdict pending finalisation of the
action. It relies on the fact that the first respondent has not
indicated that it would withhold
the amounts due pending the
finalisation of the action. The applicant is not without an alternate
remedy.
Once the first respondent has made
a final decision on whether or not to withhold such benefits the
procedure relating to a referral
to the Pensions Fund Adjudicator can
be invoked.
Consequently, it has not
satisfied the requirement that it has no alternate remedy.
[45]
The second respondent was found guilty in a
disciplinary enquiry and dismissed and he was unjustifiably enriched
at the expense
of the applicant as a consequence of his misconduct.
An action has been instituted against the second respondent, which
has not
been finalised. The applicant has not been able to obtain an
admission of liability in writing from the second respondent, nor
does it at this stage have a judgement. The amount
sought
to
be
withheld
represents
the
amount
owing
to
the
applicant
as
a consequence of the second respondent's
misconduct and the applicant does not have any alternative remedy
should the order not
remain extant until the finalisation of the
action.
[46]
I disagree. Once the applicant acknowledges that
DRM6 is not a final decision, then it has regrettably not established
the requirements
for final relief. At best for the applicant, it is
entitled to an order, pending a final determination from the first
respondent
as to whether it intends to withhold or not withhold the
benefits. This final decision by the first respondent is not the end
of
the matter. The Act and regulations contain a procedure which
involves the Pension Funds Adjudicator, which the parties will be
entitled to invoke depending on the decision.
Costs
[47]
The usual rule in relation to costs is for the
costs to follow the result.
When the urgent
application was instituted, the applicant did not seek an order in
which the costs formed part of the rule
nisi
as is the practice in this Division.
The notice of motion however contained a separate order for costs.
Consequently, given that
the second respondent has been unsuccessful
in his opposition there is no reason to depart from the usual rule
relating to costs.
Order
[48]
There is what can only be a typographical error in
the amounts reflected in the rule
nisi
issued.
Having
regard to the annexures the correct amount is R416 213.82.
[49]
In the result the following orders are issued:
1.
The second respondent is granted condonation for
the late filing of his heads of argument.
2.
The rule
nisi
of
17 June 2022 is confirmed and varied to read as follows:
‘
That
the First Respondent is hereby interdicted and restrained from paying
the amount of R416 213.82 or any lesser amount held by
it as a
pension benefit to the Second Respondent pending the First Respondent
making a final decision on the applicant’s
written request to
withhold such monies.’
3.
The second respondent is directed to pay the costs
occasioned by the application.
Henriques J
Case
Information
Date
of Hearing
24
May 2023
Date
of Judgment
23
November 2023
Appearances
Counsel
for the Applicant
NTL
Ntuli
Instructed
by
Mhlanga
Inc.
C/O
Stowell & Company
295
Pietermaritz Street
Pietermaritzburg
sumayan@stowell.co.za
Ref:
SNorgot/MHL264/0027
Counsel
for the Second Respondent:
LA
Mahlobo
Instructed
by
Austen
Smith Inc
1
Highgate Drive
Redlands
Estate
1
George McFarlane Lane
Wembley
Pietermaritzburg
cathy@austensmith.co.za
(Ref:
E3B0108/22)
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and released to SAFLII.
The
date and time for hand down is deemed to be 09h30 on 23 November
2023.
[1]
Setlogelo
v Setlogelo
1914
AD 221
at 227
[2]
Highveld
Steel & Vanadium Corporation Ltd v Oosthuizen
[2008]
ZASCA 164
;
2009 (4) SA 1
(SCA) para 16.
[3]
Highveld
Steel supra
paras
19 – 20.
[4]
Swissborough
Diamond Mines (Pty) Ltd and others v Government of the Republic of
South Africa and others
1999
(2) SA 279
(T) at 324F – G.
[5]
Minister
of Land Affairs and Agriculture and others v D & F Wevell Trust
and others
[2007]
ZASCA 153
;
2008 (2) SA 184
(SCA) para 43 at 200D-E.
[6]
Boshoff
v Iliad Africa Trading (Pty) Ltd t/a Builders Market Welkom
[2012]
ZAFSHC 4
para 24.
[7]
Plascon-Evan
Paints Pty Ltd v Van Riebeck Paints (Pty) Ltd
1984
(3) SA 623 (A).
[8]
South
African Broadcasting Corporation Soc Ltd v South African
Broadcasting Corporation Pension Fund and others
2019
(4) SA 608
(GJ);
Twigg
v Orion Money Purchase Pension Fund and another (1)
[2001]
12 BPLR 2870 (PFA);
Highveld
Steel supra
para
16.
[9]
Highveld
Steel supra
para
19.
[10]
Absa
Bank Ltd v Burmeister and others
2004
(5) SA 595
(SCA).