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[2019] ZALMPPHC 7
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Rapitsi v Standard Bank and Others (2669/2018) [2019] ZALMPPHC 7 (19 March 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 2669/2018
In
the matter between:
SALOME
NNANA RAPITSI
APPLICANT
And
STANDARD
BANK
FIRST RESPONDENT
FIRST
NATIONAL BANK
SECOND RESPODENT
ABSA
BANK
THIRD RESPONDENT
NEDBANK
FOURTH RESPONDENT
CAPITEC
FIFTH RESPONDENT
MOSINA
CHRISTINA MALOPE
SIXTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On 2
nd
of May 2018 the applicant bought an ex-parte urgent
application before Muller J. The applicant obtained an interim relief
wherein
the banking account of the sixth respondent was frozen to the
amount not exceeding R1 000 000.00. It was alleged that the sixth
respondent has received an amount of R1 000 000.00 as a
surviving spouse of the late Masoko Ephafras Rapitsi (deceased).
The
first to fifth respondents, were interdicted from receiving any
instruction in relation to the bank account of the sixth respondent,
including any transfer or withdrawal of any amount to any person/s
pending the finalisation of the declaratory order application
to be
launched.
[2] The
background facts are that the applicant is the daughter of the
deceased. The applicant is
having three siblings and one of them is
still a minor. The applicant's mother and the deceased divorced on
the 30
th
July 2014.
[3]
At the time of his death the deceased was employed by Transnet SOC
Limited. He passed
away on the 30
th
January 2017. At the
time of his death he was a contributing member of Transnet Retirement
Fund underwritten by Momentum Retirement
Administrators (Fund). The
deceased has nominated his four children as the beneficiaries to his
pension benefit.
[4]
According to the applicant after the passing away of the deceased
they went to Transnet
to claim money for burial of the deceased. They
found that the sixth respondent had already lodged a claim but has
not yet been
paid. After the funeral they went back to Transnet to
lodge a claim for pension benefits. After lodging the claim Transnet
assured
them that they will be contacted before payment is made to
enable them to raise any objection should they so wish. The purpose
for that was enable the Fund to pay the benefits to the correct
beneficiaries.
[5]
The applicant stated in her founding affidavit that on the 27
th
April 2018 she was informed by her attorney that an amount of R1 000
000.00 has been paid to the six respondent in her capacity
as the
deceased surviving spouse and that it is alleged that the deceased
had paid lobola for her during 2015. They
dispute that the
sixth respondent was married to the deceased by customary union.
According to the applicant the sixth respondent
is conniving with
other of their family members in order to defraud them of their
pension benefits.
[6]
As proof of payment of the pension benefits to the six respondent,
the applicant in
her founding affidavit has attached a copy of a
resolution dated 19
th
February 2018, taken by the Trustees
of the Retirement Fund. In that resolution the four children of the
deceased, the deceased
ex-wife and the sixth respondent are to paid
the pension benefits of the deceased. The sixth respondent was to be
paid R1 000 000.00
by virtue of being the deceased surviving spouse.
That is what led to the applicant approaching this Court on urgent
basis on the
understanding that payment has already been effected.
[7]
The sixth respondent is opposing the applicant's application.
According to the sixth
respondent, she did not receive any payment
from the Fund. She has also attached copies of her bank statement
from her banking
institution for the period 22
nd
February
2018 to 5
th
May 2018. From the said bank statement there
is no amount of R1 000 000.00 that was paid into her bank account
during that period.
[8]
It is trite that the granting of an interim relief pending an action
is an extra ordinary
remedy which is within the discretion of the
Court to either grant or withhold. The test for granting an interim
relief were formulated
in the well-known case of
Setlogelo
v Setlogelo
[1]
being a prima facie right, a well-grounded apprehension of
irreparable harm, balance of convenience and the absence of any other
satisfactory remedy.
[9]
In
Knox
D’Arcy LTD and Others v Jamieson and Others
[2]
Grosskoft JA
said:
“ …
Thus
in
Messina
(Transvaal) Development CO LTD v South African Railways and Harbours
1929 AD 195
at 215-16 Curlewis
JA
said:
‘
In an application
for an interim interdict pending action, the court has a large
discretion in granting or withholding an interdict.
Where there is
merely a possibility, not practical certainty, of inference or
injury, as in the present case, the Court will be
reluctant to grant
an interdict, especially if the party seeking the interdict will have
other means of redress and will not suffer
irreparable damage. And
the Court is entitled to and must regard the possible consequences,
both to the applicant and the respondent
which will ensure if the
interdict be granted or withheld”
[10]
The first requirement which the applicant in an application for an
interim relief must satisfy
is a
prima facie
right. It is
trite that the right is required to be
prima facie
, though
open to some doubt. The applicant in her founding affidavit has
stated that she is a beneficiary of the deceased and has
therefore a
direct interest to the amount paid to the sixth respondent, in that
should the main application succeed, she stand
to benefit financially
from such payment. The applicant being one of the children of the
deceased and the nominated beneficiaries
stand to benefit directly
should it be found that the sixth respondent is not entitled to
benefit from the deceased pension interest.
For that reason the Court
is satisfied that the applicant has established a prima facie right.
[11]
The second requirement which the applicant must satisfy is to show
that there is a reasonable apprehension
of irreparable and imminent
harm eventuating should the order not be granted. The harm must be
anticipated or ongoing. It must
not have taken place already
(See
Tshwane v City Afriforum
2016 (6) SA 279
(CC) at 360 B-C)).
[12]
The applicant in her founding affidavit has stated that should the
relief she is seeking not
be granted, the sixth respondent shall
freely be able to access her account and that should the money be
depleted, the real possibility
is that she will never recover the
amount that will be due to her. She further stated that it will be a
futile and/or academic
for her to proceed with main application if
the sixth respondent had already depleted the whole benefit paid to
her.
[13]
The purpose of the interim interdict is to prevent the future harm.
The applicant's application was
premised on the fact that the benefit
as at 28th April 2018 was paid into the sixth respondent’s bank
account. That is the
basis upon which the interim relief was granted,
which was to prevent the sixth respondent from depleting the money
that was already
into her bank account.
[14]
However, when the sixth respondent filed her answering affidavit on
the 6
th
June 2018 she attached her bank statement for the
period 22
nd
February 2018 to 5
th
May 2018 which
shows that no such payment was made into her account. The applicant
is relying on a resolution taken on the 19
th
February 2018
as proof that the sixth respondent has been paid. However, on reading
the resolution it shows that it was a resolution
of the trustees of
the Fund who have resolved how to allocate the deceased pension
interest to his ex-wife, the sixth respondent
and his four children.
It was not the actual payment as such. Muller J granted the interim
relief on the basis that the money had
already been paid into the
sixth respondent bank account, whereas that was not the case.
[15]
The applicant's notice of motion was drafted in such a way that it
relates to money already paid into
the sixth respondent’s bank
account. The notice of motion was never amended to include money
still to be paid. Had the applicant
amended its notice of motion, it
was going to be problematic for her to obtain the interim relief
without having joined the Fund
as at that stage they have not yet
effected payments. It is trite that in application of this nature
full facts must be placed
before the Court to enable it to exercise
its discretion properly. In my view, the interim relief was obtained
without the full
facts being placed before the Court.
[16]
The issue that that the Fund was still in the process of paying the
sixth respondent should have been
disclosed to the Court to enable it
to exercise its discretion properly. Failure to disclose that
information to the Court in my
view, is fatal to the applicant’s
application.
[17]
The third requirement which the applicant is required to establish,
is the balance of convenience.
With regard to this requirement there
are two competing interests. Those interests are inextricably linked
to the harm the respondent
is likely to suffer in the event of the
order being granted and the harm likely to be suffered by an
applicant if the relief sought
is not granted.
(See
Tshwane City v Afriforum
supra
at 302 B-C).
[18]
In this case the applicant did not attempt to deal with the
requirement of balance of convenience.
She is merely mentioning it in
passing that the balance of convenience favours the granting of
prayers as in the notice of motion,
as she will suffer grave
injustice if the order is dismissed. She is not stating the grounds
upon which her view is based. The
applicant is required to lay the
basis why she is of the view that balance of convenience favours the
granting of the interim relief.
[19]
The fourth requirement which the applicant is required to meet is the
absence of any other remedy.
The applicant in her founding
affidavit stated that she did not have any appropriate, suitable or
alternative remedy except
the relief she is seeking in her notice of
motion. At the time the application was launched the Fund had merely
made allocation
of benefits and was still in the process of paying.
The Fund in making an allocation of benefits was performing a public
function
and its decision was susceptible to review. The applicant
could therefore have seeked an interim relief against the Fund with
the
purpose of reviewing its decision to allocate the benefits to
sixth respondent. In my view, the applicant had an alternative remedy
and has therefore failed to satisfy the fourth requirements.
[20]
The applicant had obtained the interim relief without placing the
full facts before the Court
for it to exercise its discretion
properly. The applicant in my view, has failed to satisfy the
requirements for the granting of
an interim relief.
[21]
In the result the following order is made
21.1 The interim relief
granted on the 2
nd
May 2018 is discharged.
21.2 The application for
an interim relief is dismissed with costs.
MF.
KGANYAGO J
JUDGE OF THE HIGH
COURT POLOKWANE, LIMPOPO DIVISION
APPEARANCE:
COUNSEL FOR THE
APPLICANT :Adv L
Mohlapamaswi
INSTRUCTED BY
:
PMK Tladi & Associates Attorneys
COUNSEL FOR SIX
RESPONDENT : Adv M Manthata
INSTRUCTED BY
: Machaba Incorporated
DATE OF HEARING
: 27
th
February 2019
DATE
OF JUDGEMENT
: 19
th
March 2019
[1]
[1914] AS 221 at 227
[2]
[1996] (40 SA 348
(A) at 360 H-J