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in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG .
Case Number: 2020- 37457
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: NO
23 May 2025
In the matter between:
MAFUBE LOCAL MUNICIPALITY Applicant
And
SOUTH AFRICA N LOCAL AUTHORITIES PENSION FUND First Respondent
ABSA BANK Second Respondent
FIRST NATIONA L BANK Third Respondent
STANDARD BANK OF SOUTH AFRICA Fourth Respondent
THE SHERIFF HEILBRON Fifth Respondent
2
JUDGMENT
NOKO J
Introduction
[1] The applicant launched an application to set aside of a warrant of execution
issued by the Regis trar in this Division . Further , that the goods attached in terms of
the said warrant of execution be released from the attachment . All other parties
except the first respondent are not participating in this lis and as such reference to
the respondent would mean the first respondent.
Parties
[2] The applicant is MAFUBE LOCAL MUNICIPALITY, a municipality as
contemplated in section 2 of the Local Government: Municipal Systems Act
1 with its
principal place of business situated at 6[ …] J[…] H[…] Street, F […], Free State
Province.
[3] The first respondent is SOUTH AFRICA LOCAL AUTHORITIES PENSION
FUND, a fund duly registered in terms of the Pension Funds Act2 with its domicilium
address at c/o Motlatsi Seleke Attorneys, 1st Floor, 6[ …] C[…] Street, Sandton ,
Johannes burg.
[4] The second respondent is ABSA BANK LTD, a bank registered in terms of
the Banks A ct
3 (Banks Act) and also a public company duly incorporated in
accordance with the Company laws of the Republic of South Africa carrying its business at J[…] H[…] Street, F […], Free State Province.
1 Act 32 of 2000.
2 Act 24 of 1956.
.3 Act 94 of 1990.
3
[5] The third respondent is FIRST NATIONA L BANK, a bank registered in terms
of the Banks A ct and also a public company duly incorporated in accordance with
the Company laws of the Republic of South Africa with its business address at 5[ …]
J[…] H[…] Street, F […], Free State Province.
[6] The fourth respondent is STANDARD BANK OF SOUTH AFRIC A, a bank
registered in terms of the Banks A ct and also a public company duly incorporated in
accordance with the Company laws of the Republic of South Africa with its registered address at B […] street , F[…].
[7] The fifth respondent is THE SHERIFF FOR THE DISTRICT OF HEILBRON,
cited in his official capacity appointed in terms of the Sheriffs Act.
4
Background
[8] The background of the disput e between the parties is not contentious. The
applicant deduct s pension fund contributions from its employees on monthly basis
and undertakes to pay same to the first respondent . The applicant failed to forward
the deductions to the first respondent over a period of time. The failure of the
applicant to pay the contributions was referred to the Pension Fund Adjudicator on 4
August 2020 by the first respondent in terms of the Penson Funds Act . The pension
fund administrator duly adjudicated over the referral and made a determination
against the applicant on 4 August 2020 for c ontraven ing section 13A
5 of the
Pension Fund Act and was ordered to pay the amount of 98 million rands .
4 Act 90 of 1986.
5 Section 13A mandates that employers must deposit contributions to pension funds by the sevent h
day of the month following the month for which the contributions are due.
4
[9] The determination by the adjudicator is of the same status with an order of
the high court in terms of section 30( O)(1).6 The said determination was forwarded
to this Division and was made an order of court. The first respondent ultimately
caused a writ of execution to be issued on the basis of the deter mination by the
adjudicator. The fifth respondent was instructed to proceed with the attachment and
accordingly attached the applicant’s bank account s held with the second, third and
fourth respondent s. The applicant was aggrieved by the attachment and instituted
the proceedings to challenge it.
[10] The application was launched in two parts. Part A was for an interim order to
stay the warrant of execution pending the adjudication of Part B being for the setting
aside of the writ of execution. Relief sought in Part A was granted on 15 May 2023.
Parties submissions
Application for the condonation of the late filing of heads of Argument.
[11] In support of the application for the condo nation of the late filing of the heads
of arguments, the attorney, acting on behalf of the applicant, stated that he joined
the current applicant’s attorneys of record during late 2024 and did not have
sufficient time to get up to speed with the details and nature of the matter. He
initially thought that the matter was set down to be heard on 28 of April 2025 but
noted that it would be a holiday and subsequently was informed that the matter was
reallocated to 29 April 2025 . He noted later that the heads of argument which were
filed related to Part A of the application, whereas , this matter was enrolled in
respect of Part B of the application. He immediately made effort s to engage with his
opponents and made a commitment, hoping that his counsel would be available to
settle the head s of argument but unfortunately the counsel was not available. The
parties subsequently managed to have a joint minute signed and filed with the court.
6 Section 30(O)(1) provides that : “Any determination of the Adjudicator shall be deemed to be a civil
judgment of any court of law had the matter in question been heard by such court , and shall be so
noted by the clerk or the registrar of t he court, as t he case may be. ” Emphasis added.
5
[12] The respondent whilst not opposing the application for condonation
demonstrated that the applicant’s nonchalant attention and lack adaisical stance
should be frowned upon and the costs order be granted at a punitive scale.
[13] The submissions put forward by the applicant do not give credence to the
contention that the applicant has been keen to seeing to the finalisation of the
matter. The order regarding the stay of the warrant was made a while ago and it
took few years for the matter to be prosecuted without coherent explanation from
the applicant . In the circumstances , I find the conduct of the applicant amounting to
unreasonable delay and the applicant should be mulcted with costs at a punitive scale.
Merits
[14] The applicant referred to section 30M of the Pension Funds Act, in terms of
which the a djudicator is entitled to refer his findings together with the reasons to the
clerk or the registr ar of the court which has jurisdiction over the matter. In this
instance, the r egist rar of this Court does not have jurisdiction as the applicant is a
resident within the area of jurisdiction of Free State High Court and not within the
jurisdiction of the Gauteng High Court . To this end, counsel argued, the warrant of
the execution issued at this Court should be set aside and be declared pro non
scripto .
[15] The first respondent contends that the determinations of the Pension Fund
Adjudicator, in terms of the Pension Fund Act a ccorded the determination s by the
adjudicator the status of civil judgments and enforceable through the court
processes. Pursuant to the reluctance of the applicant to effect payment in
accordance with the determination by the Adjudicator, the first applicant approached the registr ar of the above court in terms of section 30( O)(2) of the Pension Funds
Act on 29 July 2022 to issue of a writ. The said warrant was accordingly issued on 7
February 2023 and the bank account s of the applicant w ere then attached.
6
[16] The first respondent contends further that the application for resci ssion
brought by the applicant is ill advised especially becaus e rescission rules relates to
rescissions of judgement or orders of court and not warrant of execution. In any
event, the applicant fails to satisfy the requirement as set out in Rule 42(1)(a) of the
Uniform Rules of Court and /or the common law .
[17] Secondly, counsel argued, s ection 30M envisages that the adjudicator would,
after making a determination, also make a decision as to which High Court has jurisdiction to execute the determination that has been made. The decision by the
adjudicator to decide which court would have jurisdiction remains extant until set
aside by the court h aving jurisdiction. It follows , counsel continued, that the
applicant would ordinarily have a recourse, in terms of section 30P of the Pension
Funds Act, to proceed with a judicial review. If a party disregard the decision made
by the adjudicator , his or her conduct would amount to self -help a conduct
proscribed by the courts as illustrated in EFF and Others v The Speaker of the
National Assembly and Another .
7
[18] The applicant in retort contends that s ection 30O of the Pension Funds Act
provide that once an a djudicator has made a determination, that determination shall
have the effect of civil judgement of any court of law. Further, unlike the provisions
of section 30M and section 30O , does not make any reference to jurisdiction. As a
result, “… the words any court should be interpreted to include the court which has
jurisdiction over the course of the matter by which of the determination being made within its geographical jurisdiction” .
Issues
[19] Issues for the determination is to establish if the applicant made out a case
for the relief sought and whether the defences raised by the respondent are valid.
7 [2017] ZACC 47; 2018 (3) BCLR 259 (CC); 2018 (2) SA 571 (CC) .
7
Legal principles
[20] Ordinarily , a warrant of execution can be set aside on the basis, firstly, that
the writ does not conform with the judgment which its issue, secondly, the judgment is not definite and lastly that the causa for the judgment has fallen away.
8
[21] It was also stated in First Rand Bank Limited v Baadjies
9 that:
“In approaching the question of jurisdiction in the context of the present case, the starting point must be found in the provisions of s19 (1) (a) of the
Superior Court Act,
10 which confers jurisdiction, inter alia , ‘… over all persons
residing or being in and in relation to all causes arising … within its area of
jurisdiction and all other matters of which it may according to law take
cognizance… ’ It is trite that a cause based on contract ‘arise s’ where (a) the
contract was entered into; or (b) the contract is or was to be performed ,
wholly or in part; or (c) the particular breach of contract upon which the
plaintiff relies, was committed. The plaintiff has a choice of instituting action
in any of these places .”11
[22] The Supreme Court of Appeal held in Makhanya
12 that:
“… the term ‘ jurisdiction ’, as it has been used in this case, and in the related
cases that I have mentioned, describes the power of the court to consider
and to either uphold or dismiss a claim. And I have also pointed out that it is
sometimes overlooked that to dismiss a claim (other than for lack of
8 See Strydom NO v Kruger and Another [2022] ZANCHC 3 at [8] .
9 [2013] ZAWCHC 116 at para 6.
10 Act 10 of 2013.
11 See also section 21(1) of the Superior Court Act 10 of 2013 states that : “a division has jurisdiction
over all persons residing or being in, and in relation to all causes arising and all offences triable
within , its area of jurisdiction and all other matters of which it may according to law take cogni sance.
12 Makhanya v University of Zululand [2009] ZASCA 69 ; 2010 (1) SA 62 ( SCA).
8
jurisdiction) call for the ex ercise of judicial power as much as it does to
uphold the claim. ”13
Analysis
[23] Sectio n 30M (1) is very specific that the determination should be referred to
the clerk or registrar of the court which has jurisdiction over the lis . The relevant
portion of the section is that “… any court of law had the matter in question been
heard by such court .”14 Though not in clearest terms with perfect interpretation the
section means the court which would have been seized with the matter had it not
been referred to the Pension Fund Adjudicator.
[24] It is trite that the C ourt has jurisdiction over the defendant who o rdinarily
resides or carries business within its area of jurisdiction alternatively if the cause of
action arose within its area of jurisdiction. In casu, the cause of action arose in the
Free State Province and the applicant carries its business in the said province. It
follows that the court which has jurisdiction is the F ree State High Court and not this
Division.
[25] Other arguments raised by the first respondent do not address the essence
of the application serving before me and need not detain me further.
Conclusion
[26] In the premises the ineluctable conclusion is that the registrar has no
jurisdiction and therefore the warrant issued is susceptible to be set aside.
Costs
13 Id at para 52.
14 See also ‘The LAWSA’ , second ed, 2010, vol 20 at p276.
9
[27] It is settled in our jurisprudence that the issue of costs resorts within the
discretion of the court and normally the costs should follow the results. I have
already relayed my displeasure at the way through which the applicant dealt with
the matter and believe that though the applicant is successful the principle that the costs should follow the costs would be departed from in this lis . The applicant had
an opportunity to challenge the adjudicator’s determination had there being any
qualms about its essence otherwise the applicant should have complied therewith
without being compelled to comply therewith. No plausible explanation has been
advanced.
Order
[28] I therefore make the following order.
1. The warrant of execution issued by the Registrar of the above
Honourable Court under case number 37457/2020 is set aside.
2. No order as to costs.
M V NOKO
Judge of the High Court
Gauteng Division, Johannesburg.
DISCLAMER: This judgment was prepared and authored by Judge Noko and is
handed down electronically by circulation to the Parties /their legal representatives by email and by uploading it to the electronic file of this matter on Case Lines. The date for hand- down is deemed to be 23 May 2025 at 14:00.
Date s:
Hearing: 29 April 2025.
Judgment: 23 May 2025
Appearance:
10
For the App ellant : ` LA Roux
Instructed by Peyper Attorneys.
For the Respondent : K Nkabinde
Instructed by Motlatsi Seleke Attorneys.