About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 559
|
|
Msimango v Ekurhuleni Metropolitan Municipality and Another (1224/14) [2015] ZAGPPHC 559 (7 August 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 1224/14
DATE: 07 AUGUST 2015
DAPHNEY PATRICIA
MSIMANGO
..............................................................................
APPLICANT
And
EKURHULENI METROPOLITAN
MUNICIPALITY
........................................
1st
RESPONDENT
MUNICIPAL EMPLOYEES PENSION
FUND
...................................................
2nd
RESPONDENT
JUDGMENT
KHUMALO J
[1] The Applicant in this matter is
seeking payment of her pension benefits from the 1st Respondent, her
erstwhile employer, and
the 2nd Respondent, subsequent to her
dismissal on 22 November 2013 due to misconduct and embezzlement of
money she collected that
was due to the 1st Respondent.
[2] Applicant was employed as a cashier
at the 1st Respondent's offices and during that time the 1st
Respondent accused her of failing,
alternatively neglecting to bank
in the 1st Respondent's account proceeds of sale of prepaid
electricity amounting to R635 142.00
( Six Thousand and Thirty Five
Thousand One Hundrend and Forty Two Rand) ("the amount"). A
disciplinary enquiry set up
by the 1st Respondent found her guilty of
gross negligence and misconduct, leading to her dismissal.
[3] Following the dismissal, the 1st
Respondent sent Applicant an acknowledgement of debt for the amount
for her signature that
Applicant refused to sign. 1st Respondent also
instituted against her proceedings in the criminal court for theft
and fraud and
in the civil proceedings for determination of
liability. Both proceedings are still ongoing. Applicant
alleges though that she is still to be
served with the civil summons issued against her. In the interim she
has not been paid her
pension benefits.
[4] As a result the Applicant alleges
that since the 1st Respondent is not in possession of an
acknowledgement of debt and there
is no judgment against her, she is
entitled to the payment of her pension benefits as the 1st Respondent
has no right in terms
of s 37D of the Pension Funds Act, 24 of 1956
("the Act"), to deduct any amount therefrom.
[5] The Respondent contends that the
Applicant is entitled to her pension benefits, alleging that her
claim for payment is premature
due to the pending proceedings
instituted to determine her liability.
APPLICABLE LAW
[6] Section 37 of the Act reads:
"A registered fund may-
(a) deduct any amount due by a member
to his employer on the dsate of his retirement or on which he ceases
to be a member of the
fund, in respect of-
(b)
(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 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."
[7] Applicant's contention was based on
the restrictive interpretation of the relevant statute as propagated
in Absa Bank Ltd v
Burmeister
2004 (50 SA 595
(SCA) at par 14, that
that the provisions of s 37D that regulates the deductions from
pension funds must be interpreted restrictively.
Mr Basson,
Applicant's counsel then referred to a passage in Highveld Steel &
Vanadium Corporation Ltd v v Oosthuizen
2009 (4) SA 1
(SCA) on [6]
where Maya JA referred to the Absa Bank decision where the court
pronounced that in its view the legislature would
have said so
expressly had it intended to vest courts with the implicit power to
protect an employer by preserving its right pending
an action to
ascertain whether or not it is owed money. The court then concluded
that a finding that such implicit power existed
would allow employers
to cause tremendous hardship to ex-employees by instituting and then
delaying actions.
[8] This is what the Applicant's
Counsel actually alleged of the 1st Respondent, that it issued
summons since Applicant's dismissal
in November 2013 however by the
time the
Applicant deposed to an affidavit the
summons has not been served. This resonated with the premise of Mr
Basson's argument that
the Applicant has been dismissed since 2013
and therefore is being prejudiced by the 1st Respondent's delay in
not proceeding with
the action that it has instituted.
[91 However reliance on Maya JA's
reference to Absa Bank was not done cogently as when due regard is
placed on her further analysis
and considerations in the matter, it
becomes evident that Maya JA, after testing the efficacy of the
remedy that is afforded by
section, concluded that s 37D created a
scope for the Fund to exercise its discretion whether or not to
accede to a request to
withhold a members benefits pending resolution
of the employer's claim. The practicalities of the environment under
which such
cases take place was considered. Specifically, the fact
that in many cases the employers only suspect dishonesty on the date
of
termination of an employee's service with the consequence that
pension benefits are paid before the suspected dishonesty can be
properly investigated. Also that, it has to be accepted as a matter
of logic that it is only in few cases that an employer will
have
obtained a judgment against its employee by the time the latter's
employment is terminated because of the lengthy delays in
finalising
cases in the justice system. It would then result in the employer
finding it difficult to enforce an award made in its
favour by the
time judgment is obtained against the employee.
[10] Maya JA then disagreed that the
tense used by the legislature in s 37 D (1) (B) (ii) (aa) and (bb),
in the words 'has in writing
admitted liability' and 'judgment has
been obtained' reflects an intention that either proof or liability
must be available on
termination of the employment contract.
Similarly having a difficulty with the contention that the words 'as
soon as possible'
in rule 7.3 require payment of the pension benefits
to be effected immediately upon termination of an employee's service.
[11] She further argued that to give
effect to the manifest purpose of the action, its wording must be
interpreted purposely to
include the power to withhold payment of a
member's pension benefits pending the determination or
acknowledgement of such member's
liability. The Fund in that instance
was found to have a discretion to withhold payment of the Respondent
pension benefit in the
circumstances.
[12] Therefore having accepted that the
Fund has a discretion we must determine if in this instance such a
discretion was properly
exercised in view of the Applicant's
complaint that the summons were delayed and the 1st Respondent seem
to want to await the findings
of the criminal court before proceeding
with the determination of liability. Counsel for the 1st Respondent,
although confirming
that they are waiting for the outcome of the
criminal matter refuted the allegation that the civil proceedings are
being delayed
for that purpose. He argued that the matter is being
proceeded with.
[13] The submission on awaiting the
criminal proceedings is ill advised as that cannot determine the
liability of the Applicant,
therefore the matter should proceed
simultaneously with proceedings in the civil court to determine
liability.
[14] The fact that the proceedings have
commenced notwithstanding the delay is to be taken into consideration
in weighing the prejudice
that each party may suffer as a result of
the court's decision. It is evident that the 1st Respondent is taking
the matter seriously
as it has also taken legal steps to get the
matter prosecuted as well. As the proceedings for the determination
of liability has
been commenced with, it would not be unjust for the
payment of the benefits to be delayed and await the outcome of the
civil proceedings.
[15] On the other hand since the
Applicant was entitled to come to court as it had seemed at the time
of instituting these proceedings
the 1st Respondent was delaying the
finalization of the proceedings determining her liability, it would
therefore be unjust to
saddle her with costs. Under the circumstances
It is therefore ordered 1. The
Application is dismissed each party to pay its own costs.
N V KHUMALO J JUDGE OF THE HIGH
COURT GAUTENG DIVISION: PRETORIA
For the Applicant: J L BASSON
Instructed by: MAENETJA ATTORNEYS
PRETORIA
For the 1st Respondent: M C MAKGATHO
Instructed by PRINCE MUDAU &
ASSOCIATES C/O MASHEGO ROMAGAGA PRETORIA