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[2022] ZAFSHC 98
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Fourie v Vrystaat Munisipale Pensionfond and Others (2973/2021) [2022] ZAFSHC 98 (20 May 2022)
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: 2973/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ALETTA
CORNELIA FOURIE (
née
ERASMUS
Applicant
and
VRYSTAAT
MUNISIPALE PENSIONFONDS
1
st
Respondent
REGISTRATION
NUMBER: 12/8/412
MALCOM
NEIL CAMPBELL N.O.
2nd Respondent
FRITZ
FOURIE
3
rd
Respondent
IDENTITY
NUMBER: [....]
HEARD
ON:
03 FEBRUARY 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 10h00 on 20 May 2022.
[1]
The issue to be determined in this matter is whether a non-member
spouse is entitled
to the share of the pension benefit assigned to
her in terms of a decree of divorce issued after the pension benefit
was withheld
by a Pension Fund in terms of section 37D(1)(b)(ii) of
the Pension Funds Act 24 of 1956 (“The PFA”) as security
pending
the determination of the civil claims instituted by the
employer against the member.
[2]
The applicant claims payment of the amount of R12million against the
first respondent
a pension fund organization (The Fund) duly
registered in terms of section 4 of the PFA. The claim is premised on
the grounds that
the payment is due to her by virtue of a decree of
divorce incorporating a settlement agreement in terms of which the
third respondent,
a former employee and member of the Fund allocated
a portion of his accrued pension benefit or interest to the
applicant.
[3]
The background facts are generally of common cause: the third
respondent was the Fund’s
chief executive officer until he
retired on 31 July 2017 barely three weeks after an on-site
inspection of the Fund revealed financial
irregularities in the
administration of the Fund which were attributed to the third
respondent as the chief executive officer of
the Fund. The Fund was
subsequently placed under the curatorship of the second respondent
(the Curator) and civil claims were instituted
against the third
respondent to recover the misappropriated funds.
[1]
[4]
On 6 October 2017 the Curator invoked the provisions of section
37D(1)(b)(ii) of the
PFA and withheld the third respondent’s
pension benefit pending the determination of the civil claims
instituted by the Fund
and the Curator in respect of the damage
caused to the Fund by reason of the third respondent’s
misappropriation of funds.
[5]
Approximately
a month later, on 15 November 2017 the third respondent apportioned
R12million of his retained pension benefit to
the applicant in
accordance with their divorce settlement agreement
[2]
which provides thus:
“
2.2.2
Ingevolge Ar 7 vandie Wet op Egskeidings 70 van 1979 sal ‘n
bedrag gelykstaande
aan
R12,000,000.00
&Twaalf Miljoen Rand)
van
die Verweerder se gesegde netto pensioenbelang en/of pensioenvoordele
in die Pensioenfonds bekend as die VRYSTAAT MUNISIPALE
PENSIOENEFONDS
en waarvan die Verweerder op 31 Julie 2017 afgetree het (met
lidnommer: 0450000), op datum van toestaan van ‘n
finale
egskeidingbevel, die Eiseres toekom.
2.2.3
Ingevolge Artikel 37D (4) (b) (ii) (bb) van die Pensioenwet oefen
die Eiseres reeds hiermee haar keuse uit die gemelde pensioenfonds
die volle bedrag van R12 000,000.00 (Twaalf Miljoen Rand) wat
kragtens paragraaf 2.2.2hierbo deur die pensioenfonds aan haar
betaalbaar is aan haar uitbetaal moet word en kom die partye ooreen
dat die Hof gelas dat die gemelde bedrag vry van enige aftrekkings
en/of belasting in die Eiseres se volgende bankrekening inbetaal word
naamlik:
NAAM VAN
REKENINGHOURE: MEV A C FOURIE
BANKNAAM: NEDBANK-
TJEKREKENING
REKENINGNOMMER:
[....]
KROONSTAD
TAK
”
[6]
During May 2019, the third respondent launched an application against
the Fund and
the Curator in this court under case number 2367/2019
seeking payment of his entire pension benefit. The Fund and the
Curator opposed
the application and simultaneously launched a
counter-application wherein they sought an order authorizing the Fund
and the Curator
to retain the third respondent’s pension
benefit pending the finalization of the civil claims. This matter was
settled, the
parties took an order by agreement on 6 February 2020
essentially agreeing that the application be postponed
sine
die,
the
third respondent would be paid only an amount of R2million and
payment of the rest of the pension benefit namely, R19 739 733.41
was suspended pending the final determination of the civil claims.
[3]
[7]
The summary of the parties’ contentions is the following: i
t
is the applicant’s case that she was not a party to the
proceedings in which the third respondent agreed to the retention
of
his pension benefit therefore, the Fund and Curator are not entitled
to disregard the divorce order by withholding her portion
of the
benefit along with that of the third respondent.
[8]
The
third respondent abides by the decision of this court.
[9]
According to the Fund and the Curator, the applicant is not entitled
to the payment
she seeks on the following grounds namely, that:
9.1.
The divorce order upon which the applicant relies as the basis of her
claim is a
nullity. At the time of the divorce, the third respondent
had no pension interest to apportion to the applicant. He retired and
exited the fund before the divorce and his pension benefits which had
accrued to him were subsequently withheld by the Fund in
terms of
section 37D (1) (b) (ii) of the PFA and also by virtue of mutual
agreement between the Fund, the Curator and the third
respondent
pending the finalization of the civil claims the Fund and the Curator
has instituted against the third respondent for
the recovery of the
misappropriated funds. Pursuant to section 7(8)(b) of the Divorce
Act,
[4]
the retention of the
third respondent’s pension benefit applies
mutatis
mutandis
to
the applicant as a non-member spouse;
9.3.
The Fund as was not a party to the divorce proceedings accordingly,
the order is
unenforceable against the Fund. It does not constitute a
judgment debt against the Fund; and
9.4.
Any claim that the applicant might have had against the Fund has
prescribed as it
was not instituted within three years from the date
the debt allegedly became due and payable.
[10]
With regard to the challenge regarding the validity and
enforceability of the divorce order against
the Fund, sections 7(7)
(a) and 7(8) (b) of the Divorce Act provide that at the time of a
divorce, a member’s pension interest
will be considered as part
of his assets in the determination of the patrimonial benefits to
which a non-member spouse may be entitled
to and, once a court has
granted a decree of divorce awarding a non-member spouse a portion of
a member’s pension interest,
the Fund
must
(I
emphasize) deduct the apportioned pension interest and pay it over to
the non-member spouse minus the deductions allowable in
terms of
section 37D (1) (b) (ii) of the PFA. Accordingly, it is not a
required that the Pension Fund be cited as a party to the
proceedings.
[11]
A pension interest in these circumstances is a benefit that accrues
to a member when he exits
the Fund upon resignation
[5]
in other words, it is a benefit that accrues to a member if his
membership and employment is terminated on the date of the divorce.
[12]
In this matter, the third respondent’s pension interest ceased
to be an asset to which
the applicant would be entitled to in terms
of section 7(7) when he resigned from his employment and the Fund
approximately four
(4) months before the divorce. As a result, the
provision in the divorce order directing the Fund to pay a portion of
his pension
interest to the applicant is ineffectual.
[6]
[13]
As regards the applicant’s entitlement to the withheld pension
benefits, section 37D (1)
(b) (ii) of the PFA read with section
7(8)(b) of the Divorce Act,
permits the
Fund as an employer of the third respondent to deduct any amount for
which the third respondent is liable to the Fund
for damage caused by
reason of his misappropriation of funds and in
the
Fund and also
for the purpose of determining the pension
interest to which the applicant would have been entitled to at the
time of the divorce.
[14]
The claims instituted against the third respondent in total amount to
R76 552 041.00.
The amount exceeds
the
third respondent’s pension benefit significantly the Fund was
thus entitled to withhold the entire pension benefit pending
the
finalization of the claims.
[15]
The provisions of section 7(8)(b) of the Divorce Act
apply
mutatis mutandis
to the applicant’s right to the portion
of the third respondent’s pension benefit.
[16]
Prescription is governed by the Prescription Act. Sections 11 (a)
(ii) and (d), 12(1) and (3)
of the Prescription Act are the relevant
provisions in this matter. They essentially provide that a judgment
debt shall be extinguished
by prescription after a lapse of 30 years
since it became due and any other debt prescribes after three years.
A debt is deemed
to be due when the creditor had knowledge of the
identity of the debtor and of the facts from which the debt arises.
[17]
In asserting the basis of her claim, the applicant alleged that her
claim against the Fund is
for unpaid pension benefits which were due
and payable to her as per the divorce order incorporating a Deed of
settlement granted
on 15 November 2017. In terms of this order, the
Fund was ordered to pay her a portion of the third respondent’s
pension
benefit within fourteen (14) days after the order was
issued.
[7]
Based on these facts,
as at the date of the divorce order the applicant had knowledge of
both the facts from which the debt arises
and the identity of her
debtor.
[18]
Upon receipt of the Fund’s opposing papers, the applicant
sought to modify her claim in
her replying affidavit and the heads of
argument by categorizing it as a demand to release assets under
attachment to which Prescription
does not apply, alternatively a
judgment debt which prescribes after 30 years. There is also a
belated variation of the date on
which the debt became due. The
applicant alleges that the debt only became due on 6 February 2020
when the Fund was granted an
order to withhold the third respondent’s
pension benefit or on the date of this judgment. Another version is
that the attachment
of the applicant’s pension is continuous
wrong therefore prescription runs from day to day.
[19]
It is trite that an
applicant
for relief must (save in exceptional circumstances) make her case and
produce all the evidence she desires to use in support
of her case in
her case, in her founding affidavit. An applicant is not permitted to
supplement her case in the replying affidavit.
[8]
[20]
On the facts of this matter it is
quite clear from the
applicant’s founding affidavit that her claim is a claim for
unpaid monies which were due and payable.
I therefore agree with
counsel for the Fund and the Curator that the applicant’s claim
prescribed on 15 November 2020. I’m
of the view that the Fund’s
“debt” to wit, the obligation to pay the portion of the
third respondent’s
pension benefit to the applicant has been
extinguished by prescription.
[21]
In conclusion, I’m of the view that no proper case has been out
for the granting of the
order sought by the applicant. The applicant
is not entitled to the payment she seeks. I have consequently arrived
at the conclusion
that the application ought to be dismissed.
[22]
There is no reason why the costs should not follow the result.
[23]
In the premises, the following order is granted
:
(1)
The application is dismissed with costs.
(2)
The applicant shall pay the respondents’
costs, including the costs of two counsel.
N.S.
DANISO, J
APPEARANCES:
Counsel
on behalf of Applicant:
Adv. C. Ploos van Amstel, SC
With
him:
Adv. P. Ploos van Amstel
Instructed
by:
Wessels & Smith
BLOEMFONTEIN
Counsel
on behalf of 1
st
and 2
nd
Respondents:
Adv. C. Joubert, SC
With
him:
Adv. N. Mauritz
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
[1]
The Fund and the curator issued summons in this court under case
number
879/2019,
2972/2019 and 4184/2019.
[2]
Annexure “ACF3” on the applicant’s founding
affidavit is a copy of the settlement agreement.
[3]
Annexure “ACF4” of the applicant’s founding
affidavit is a copy of the judgment granted by Daffue, AJP in that
regard.
[4]
Act 70 of 1979.
[5]
Section 1, supra at fn 4.
[6]
De Kock v Jacobson and Another
1999 (4) SA 346
(W) at 350.
[7]
Paragraphs 11, 25 and 35 of the applicant’s founding
affidavit.
[8]
Bayat
and others v Hansa and Another
1955
(3) SA 547
(N)
at
553D;
Poseidon
Ships Agencies
(
PTY
)
LTD
v African Coaling and Exporting CO
(
Durban
)
(
PTY
)
LTD
and
Another
1980
(1)
SA
313
(D) at 315 E-H and 316A.