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[2019] ZALMPPHC 56
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Mathebula v Department of Education, Limpopo Province and Another (811/2018) [2019] ZALMPPHC 56 (21 November 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: 811/2018
21/11/2019
In
the matter between:
MATHEBULA
PATRICK SPRINGER
APPLICANT
AND
DEPARTMENT
OF EDUCATION,
LIMPOPO
PROVINCE
FIRST RESPONDENT
GOVERNMENT
EMPLOYEES PENSION FUND
SECOND RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant has brought an application seeking an order that it be
declared that
he is entitled to the sum of R183 092-00 as his pension
contribution benefits from the date of his appointment being the 1
st
January 1979 to the 30
th
May 1989, and that the first
respondent be directed to pay him. In the alternative he is seeking
an order that the first respondent
take all necessary steps or
measures to ensure that his pension contribution benefits from 1
st
January 1979 to 30
th
May 1989, if the first respondent has
paid the said pension contribution benefits to another pension
institution other than the
second respondent, be paid to him.
[2]
The background facts are that the applicant alleges that he was
employed on the 1
st
January 1979 by the old the Republic
of South Africa in the Department of Education as an educator. From
8
th
January 1980 he worked under the homeland of Gazankulu
still as an educator. During 1989 the school in which he was an
educator
was incorporated to the former Republic of Venda. After the
new dispensation in 1994 the school he was working at was
incorporated
to Northern Province now Limpopo Province. He continued
working at that school until he went into retirement during February
2016.
[3]
Before he went into retirement, on the 30
th
May 2012 he
enquired about his pension benefits from the second respondent. He
was told that his pension benefit will be calculated
from 1
st
June 1989 up to date of his retirement and not from January 1979. He
followed up the matter to rectify the situation up to the
date of his
retirement. However, his pension payment was calculated from the 1
st
June 1989 to date of his retirement being the 29
th
February 2016 despite having contributed to the pension fund from 1
st
January 1979. Even after the pension pay-out he tried to resolve this
matter amicably with the respondents to no avail, hence the
launching
of the present application.
[4]
Both respondents are opposing the applicant’s application. The
first respondent
has raised two points
in limine
, that of
prescription and that of failing to first refer the dispute to the
Pension Fund Adjudicator. However, on the day of the
hearing of the
matter, the first respondent abandoned the second point
in limine
,
and proceeded only with that of prescription.
[5]
According to the first respondent’s point
in limine
of
prescription, the applicant became aware of his pension shortfall
during 2012 when he visited the second respondent. It is the
first
respondent’s contention that the applicant’s claim has
prescribed as he has waited for seven years to bring an
application
to seek a declaratory order for the 10 years pension shortfall. The
applicant’s submission is that prescription
started to run when
he went into retirement and the date of retirement is the date he
became aware of the debt.
[6]
In terms of Section 12(1) of the Prescription Act
[1]
(the
Act), prescription shall commence to run as soon as the debt becomes
due. Section 12(3) of the Act provides that the debt shall
not be
deemed to be due until the creditor has knowledge of the identity of
the debtor and of the facts from which the debt arises,
provided a
creditor shall be deemed to have such knowledge if he could have
acquired it by exercising reasonable care.
[7]
In
Kruger
v National Director of Public Prosecutions
[2]
Zondo DCJ said:
“
In Truter the
Supreme Court of Appeal dealt with the meaning of the phrase “debt”.
It said:
‘
For the purpose of
the Act, the term ‘debt due’ means a debt, including a
delictual debt, which is owing and payable.
A debt is due in this
sense when a creditor acquires a complete cause of action for the
recovery of the debt, that is, when the
entire set of facts which a
creditor must prove in order to succeed with his or her claim against
the debtor is in place or, in
other words, when everything has
happened which would entitle the creditor to institute action and
pursue
his
or her claim”.
[8]
In the case at hand, the applicant became aware that he will be short
paid of his
pension benefits on the 30
th
May 2012. After
discovery of that, he took initiatives to resolve the matter amicably
with the respondents. The Principal of Djunani
Primary School were
the applicant used to work, on the 7
th
August 2014 also
wrote a letter to the first respondent informing it that the
applicant has started teaching on 1
st
January 1979. On the
5
th
August 2016 the first respondent wrote a letter to the
applicant informing him that his Z125 forms for the amendment date of
entry
to the department has been forwarded to the second respondent
for their attention. On the 14
th
November 2016 the first
respondent wrote a letter to the applicant requesting him to submit
copies of salary advices from 1979
to 1987 to their offices for them
to process the matter further in order them to speed up the process
with the second respondent.
[9]
On the 5
th
May 2017 the first respondent wrote to the
applicant informing him that it has received copies of his salary
advices from SITA
and that they only cover for the period 1994 to
1997 and that they will not serve any purpose. All these efforts were
an attempt
to resolve the matter amicably. However, in my view, the
applicant has acquired complete knowledge of his cause of action when
payment of his pension benefit was done. He was now certain that
there was a short-payment of his pension benefit. It would have
been
premature for the applicant to launch his application before he was
certain as to what figure has he been paid and how much
was the
shortfall, and for which period. Even though he was informed during
2012, it was not yet certain that the respondents will
not reconsider
their positions taking into consideration the attempts that was made
in trying to resolve this matter.
[10]
Before payment of his pension benefit, the applicant would not have
known whether the respondents have calculated
his pension pay
correctly or not. It will only be after payment that it will be
certain for him that that there was shortfall.
His pension payment
was paid during 2016. In my view prescription for the applicant’s
claim started to run in 2016 after
the actual payment of his pension.
Negotiations with the respondents after payment was made did not
interrupt prescription. He
has launched his application on the 7
th
February 2018 within the three years period. It follows that the
first respondents point
in limine
has no merit and stand to
fail.
[11]
In the result the following order is made:
11.1 The first
respondent’s point
in limine
of prescription is
dismissed with costs on party and party scale.
MF KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT : ADV TD SIBIYA
INSTRUCTED BY
: MG MABUNDA ATTORNEYS
COUNSEL FOR 1
ST
RESPONDENT : ADV M KHANYEZA
INSTRUCTED BY
: STATE ATTORNEY
POLOKWANE
COUNSEL FOR 2
ND
RESPONDENT : ADV LF MOLETE
INSTRUCTED BY
: DM5 INC
DATE OF HEARING
: 21 OCTOBER 2019
DATE OF JUDGEMENT
: 21 NOVEMBER 2019
[1]
Act 68 0f 1969
[2]
[2019]ZACC 13; 2016(6) BCLR 703 (CC)