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[2019] ZAGPPHC 31
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Mashamaite v Morgan Beef Investments (PTY) LTD and Others (28767/17) [2019] ZAGPPHC 31 (20 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA ,
GAUTENG
DIVISION, PRETORIA
CASE
NO: 28767/17
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:20/02/2019
In
the matter between:-
MOKETE
HERBERT MASHAMAITE
Applicant
and
MORGAN
BEEF INVESTMENTS (PTY) LTD
First Respondent
(Registration
No: 2001/023826/07
LIBERTY
CORPORATE
Second Respondent
M V
MAKELAARS
CC
Third Respondent
JUDGMENT
SELEKA
AJ:
[1]
The applicant in this matter is a former employee of the first
respondent (Morgan Beef Investments (Pty) Ltd), formerly
known as Morgan Abattoir (Pty) Ltd. The applicant was employed by the
first respondent from 7 January 2011 to September 2016 when
he
resigned from his employment with the first respondent as a
Blackman.
[2]
He pursues the present application in
terms of an amended notice of motion, which was
further amended during argument
to abandon paragraph 4 thereof. The
relief now sought in the notice of motion (as amended) reads:
"1.
The second respondent be ordered to compute the late payment interest
on the amount of R26 636.39 by
the first respondent in terms of
Section 13A(7) of the Pension Funds Act, 24 of 1956 (as amended),
within fourteen (14) days of
receipt of the Court Order.
2.
The second respondent
is
ordered to transmit to the first
respondent its computations in prayer 1 above, within three (3) days
of completing it.
3.
The first respondent is ordered
to pay to the second respondent
an amount of R26
636.39
as
arrear contributions together with
late payment interest as computed in accordance with prayer 1 above,
within seven (7) days of
receiving the computations from the second
responden.t
4.
5.
That the first respondent be ordered to pay the costs of the
application on attorney and client scale."
[3]
This relief is sought against the
backdrop of the facts that follow.
[4]
In May 2012, and apparently by virtue of
his employment with the first
respondent, the
applicant became a member of a provident fund administered by the
second respondent ("Liberty"). To that
end, monthly
deductions were made from the applicant's salary for a period of 4
years and 4 months, from May 2012 to September
2016. These
deductions were described on his salary slip as
"PROVIDENT
FUND".
The amount of deductions started at R438.37 and
increased annuallyto more than R600.00. In view of the
terminology used
by the first respondent to define the deductions,
i.e. provident fund, the applicant understood that the
deductions
were being made to pay for his member
contribution to the provident fund.
[5]
Following his resignation, the applicant
made enquiries, on two occasions, with the first respondent regarding
his provident pay-out,
but received no assistance. He then enlisted
the services of his attorneys of record to submit a claim, on his
behalf, directly
with Liberty. On 6 February 2017, his attorneys
addressed a letter to Liberty requesting a statement of balances of
the applicant's
pension benefits (p24). Liberty responded by letter
dated 7 February 2017 to which was attached what Liberty referred to
as
"member investment summary
for the period 03/02/2017 to 06/02/2017".
The
document shows the closing investment value as R17 100.63 (p26). It
bears the scheme name as "Morgan
Abattoir
(Pty) Ltd, the scheme number: 0030262701,
the member name: Mr MH Mashamaite (being
the applican)t, and
member number: M203160B.
[6]
On 10 February 2017, the applicant's
attorneys send a letter to the third respondent (MV Makelaars)
in which they complained
that the provident fund benefits were far
lower than what the applicant had contributed, and requested the
third respondent
to account on certain information (p31).
[7]
The third respondent replied and
provided some information which included a letter from Liberty dated
7 March 2017, to which was
attached another member investment
summary, but for the period 01/05/2012 to 30/09/2016, showing a
closing investment value of
R16 469.08, as well as a statement in
relation thereto (p35).
[8]
The member investment summary for the
period 3/2/2017 to 6/2/2017, with a closing value of R17 100.63,
shows the investment portfolio
as Liberty Institutiona l Money Market
Fund, comprising contributions only from the employer recorded as
"Employer AVG: R1 151.11"
and
"Employer
Contributions: R15 949.52"
(p26).
[9]
The member investment summary for the
period 1/5/2012 to 30/9/2016, with a closing value of R16 469.08,
shows three (3) investment
portfolios namely Multi Manager
Growth, Liberty Institutional Money Market Fund and Liberty Stable
Growth Fund, comprised
of contributions in the same manner as above,
namely:
"Employer AVG: R1
128.80"
and
"Employer
Contributions: R15 340.28"
(p35).
[10]
None of these documents show
contributions by the employee, i.e. the applicant, even though they
both reflect him as a member, with
member number M203160B.
[11]
It was this realisation that triggered
the dispute in the present application, with the applicant contending
that the provident
fund deductions from his salary had not been paid
to Liberty and, therefore, demanding to know where were the
deductions went to
(FA14/19 & p47).
[12]
The issue was raised with the first
respondent by letter dated 1O March 2017. (p47). The response
from the first respondent
was that the matter has been escalated
to its broker and the first respondent will get back to the
applicant's attorneys
no later than 22 March 2017 (p50).
[13]
However, the first respondent failed to
respond, necessitating another letter from the applicant's
attorneys dated 24 March
2017, complaining of the first respondent's
failure to respond and affording it a further time to respond, until
28 March 2017.
The applicant's attorneys warned that another failure
to respond would leave the applicant with no option but to take legal
action
(p52).
[14]
There seems to have been no response
again from the first respondent.
[15]
On 5 April 2017, the applicant's
attorneys addressed another letter to the first respondent providing
it with certain documentation
relating to 'member
benefits statement as at 1 May 2012' from Liberty, a
detailed statement of contributions
(which is the same as
the second of the two member investment summaries referred to above
for the period 1/5/2012 to 30/9/2016)
and copies of two (2) of the
applicant's payslips reflecting provident fund deductions (p54). The
applicant's attorneys requested
to be provided with the name of the
fund into which the provident fund deductions were paid.
There seems also to have
been no response to this letter from the
first respondent (FA16/24).
[16]
In its answering affidavit, and as
explanation for the failure to respond, the first respondent simply
states that it was seeking
legal representation, as it was entitled
to (AA105/45). However, this response fails to explain the
first respondent's
failure to
respond
as it had undertaken to do
"no later than 22 March 2017"
and the continued silence thereafter.
(17)
In any event, the explanation that the first respondent was already
seeking legal representation during the correspondence
in
March/April 2017, lacks credibility when read
with the allegation in paragraph 7 of its own answering
affidavit, which shows that it was only
after the present application had been
instituted that the first respondent
managed
to brief legal representatives on 15 May 2017 regarding the matte.r
There is no explanation as to what transpired
between March
2017 and this date regarding legal representation that the first
respondent says was entitled to see.k
[18]
Furthermore, the reasons
proffered for the late filing of the
answering affidavit
show that the
above allegation cannot be true. On
the first respondents
version, contact with Liberty and
Discovery to obtain information was only made in June 2017 (AA87/11).
There is not allegation
or evidence tendered to show that steps to
obtain information from Liberty and Discovery
were taken
during the correspondence in
March/April
2017.
[19]
Mr Lauw, for the first respondent,
submitted during argument that there were attempts by the first
respondent before and after the
application was instituted to engage
with the applicant in order to resolve the matter. However, his
submission is not borne out
by the facts in the papers.
[20]
In the papers, the delay in filing the
answering affidavit is said to have been caused by the first
respondent's failed attempt
to obtain the fund rules. It is not said
to have been as a result of attempts to amicably resolve the matter
with the applicant.
In any event, it is odd that the employer would
subscribe its employees to a fund of which the employer has no rules.
[21]
According to the papers, as appears from
the applicant's replying affidavit, settlement discussions between
the parties were initiated
in July 2017, after the first respondent
had filed its answering affidavit (RA221/4-5).
[22]
The present application was served on
the first respondent on 26 April 2017 (p76),
after its repeated failure
to respond to the applicant's
attorneys. On 15 May 2017, the first respondent delivered
its notice of intention
to oppose and on 27 June 2017 served its
opposing affidavit (pp79 & 81). There is no an iota of evidence
to show that at any
time during this period the first respondent
addressed the queries raised by the applicant's attorneys.
[23]
Only the first respondent opposes the
application.
[24]
In its answering affidavit, the first respondent alleges that the
provident fund deductions were indeed paid over to the fund
administered by Liberty and to Discovery Life (p92/19).
[25]
The first respondent seeks to
substantiate this averment by relying on calculations
made by it in a document marked
"annexure B" (p96/31) . As
stated, annexure B is a document generated by the first respondent
itself. The document does
not originate from Liberty or Discovery and
its contents are not confirmed by either of the two entities.
More importantly,
annexure B simply records the amount of deductions
made against the applicant's salary from 2012 to 2016. It contains no
explanation
as to where the provident fund deductions were paid and
why the member investment summary from Liberty does not show
contributions
by the member. It is also not disclosed who
exactly of the first respondent prepared this annexure B and where
and how the
other figures thereon were derived and accounted for.
[26]
When I asked Mr Louw why the member's
contribution is not reflected in the member investment summary from
Liberty, he said that
he did not know, but also that his client
cannot be expected to interpret Liberty's document. This is indeed an
unfortunate response
by the employer's representative. The first
respondent, as the employer, should have taken the trouble to
understand the document
and, if necessary, obtain explanations from
Liberty that will clarify the position. One can infer from the
response that the first
respondent did not care to do so.
[27]
The first respondent's averments that
the applicant became a member of Group Life Insurance Policy with
Discovery, are not substantiated.
The first respondent has not
attached any documentation to show that the applicant was a member of
Group Life Insurance Policy
with Discovery. The documents marked E1
to E5, to the answering affidavit, fail to prove this averment, as
the documents do not
bear any reference to Discovery or Discovery
Group Life Insurance Policy, are not on Discovery's letterhead and
have not been confirmed
by Discovery. In reply, the applicant
disputes their authenticity on the basis that the documents do not
have any letterhead whatsoever
to show that they were indeed received
from Discovery Life. The applicant further states that he was never
advised or consulted
by the first respondent on any contribution to
Discovery Life (p230/27.5).
[28]
The only documents provided in the
papers with any measure of certainty are those in relation to the
provident fund with Liberty.
However, those are the documents that
show no contribution by the member. Annexure B, furnished by the
first respondent, does not
explain this anomaly, nor is it explained
in the answering affidavit.
[29]
Further, the first respondent seeks to make averments on how
contributions were calculated based on the fund rules, but has
failed
to provide those rules. The first respondent correctly acknowledges
that it cannot make any submission in regard to the
fund rules when
it does not have the rules and has not produced them. In
any event, the first respondent has
not shown anywhere that
provident fund deductions made against the applicant's salary
were indeed paid over to Liberty.
[30]
The first respondent's case takes a
bizarre twist when the first respondent, whilst contending that
payment was made to Liberty,
alleges at the same time that there is
uncertainty as to whether the provident fund imposed an obligation on
both the employer
and the employee to make contributions. The first
respondent cannot have it both ways. Either the member, i.e. the
applicant, made
contributions to the provident fund or did not.
If he did not make contributions, the question is why did the first
respondent
continue making deductions from his salary and where did
the money go to, if it is not been accounted for in Liberty's own
records.
The first respondent's allegation and, indeed, contention
that the first respondent has paid the provident fund deductions over
to Liberty is irreconcilable with the alleged uncertainty (p103/40).
[31]
Although the applicant accepts that
annexure B may correctly reflect a record of so-called provident fund
deductions made against
his salary, he contends that annexure B
is still deficient as it fails to explain the zero-contribution shown
against his
name on Liberty's records.
[32]
The first respondent only makes an
allegation that payment was made to Liberty, but has not provided any
evidence to show this allegation.
It is common cause that the
documents from Liberty only show employer contributions. In the
absence of evidence to show that provident
fund deductions from the
applicant's salary were indeed paid over to Liberty, the first
respondent's opposition to the relief sought
must fail.
[33]
As regards Discovery life
policy, the first respondent's case is
a non-starter.
Deductions
alleged to have been made for this policy are not reflected and/or
itemised in the applicant 's payslip.
The
applicant does not even know whether
the policy exists. He was never
informed of such policy
and never consented to signing up for it. There is no a single trace
in the papers of a document from Discovery
confirming its existence.
As the first respondent is the one who has made the allegation of the
existence of this policy,
it was incumbent on it to establish
its existence. The first respondent has failed to do so.
[34]
In the result, I make the following order:
34.1
The first respondent is ordered to pay
to the second respondent an amount of R26 636.39 as arrear
contributions for the applicant's
provident fund, together with late
payment interest.
34.2
The second respondent is ordered to
compute the late payment interest on the said amount of R26 636.39
within 14 days of service
of this order on the second respondent.
34.3
The first respondent is to pay the said
amount within seven (7) days of receipt of interest calculations from
the second respondent.
34.4
The first respondent is ordered to pay
the costs of this application.
PG
Seleka
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA