ESKOM PENSION AND PROVIDENT FUND Applicant
and
BRIAN MOLEFE First Respondent
ESKOM HOLDINGS SOC LIMITED Second Respondent
THE COMMISSIONER FOR THE SOUTH AFRICAN Third Respondent
REVENUE SERVICES
This judgment is handed down electronically by circulation to the parties/their legal
representatives by email and through uploading same on the electronic file of this matter on
Caselines. The date of delivery of this judgment is deemed to be the of J uly 2025.
ORDER:
1. The appeal is upheld with costs to be paid by the First Respondent of both the
Appellant and the Third Respondent , the costs will include the costs of two counsel
where so employed on scale C.
2. The order of the court a quo in relat ion to paragraphs 2,3,4,5 and 6 are set aside
and substituted with the following order :
a) The matter is referred to oral evidence to determine the amount payable by the
Appellant to the First Respondent, befo re a different J udge.
b) The First Respondent must discover all documents relating to the calculation
and flow of money as well as all documents it intends to use during the leading
of evidence within 15 days of this order.
c) The Appellan t must discover all documents relating to the calculation and flow
of money and all documents he intends using during the leading of evidence
within 15 days of the filing of the documents referred to in the previous
paragraph .
d) The actuaries may file supplementary reports afte r receiving the documents
referred to above and must do so at least 45 days prior to the matter being heard.
e) The costs of the application will be costs in the referral to evidence.
JUDGMENT
TOLMAY , J (TEFFO , J and FRANCIS -SUBBIAH , J CONCURRING)
Introduction
1. This matter deals with a further chapter in a long -standing dispute between t he
appellant (“Mr Molefe ”) and the respondents. This time the dispute between Mr Molefe and
the first respondent (the Fund) is about the amount that he must repay the Fund. The court
a quo ordered the Fund to repay certain amo unts to the second respondent (Eskom) .
Eskom in turn was directed to pay the post-tax value of certain amounts to Mr Molefe and
Mr Molefe was ordered to repay certain amounts to the Fund.
2. The Supreme Cour t of Appeal ( “SCA”) granted leave to appeal to the Full Court
against the entire judgment and order(s) (including the order as t o costs) of the court a
quo1. Eskom filed a notice to abide. The cross -appeal, by the F und was not proceeded
with, and correctly so, as leave to appeal was not granted by the court a quo , nor sought
before the S CA.
1 The order of the court a quo , per Davis J, that is sought to be impugned reads as follows:
“1. The Eskom Pension and Provident Fund (the Fund) is directed to repay to Eskom Holdings Soc Ltd (Eskom)
the following amounts:
1.1. The amount of R 30 103 915,62 being the amount found by the full court on
25 January 2018 to have been unlawfully paid to the Fund, together with
interest at the prescribe d mora rate from date of the unlawful payment to date
of repayment thereof.
1.2. The amount of R 1 345 461,79, constituting Eskom’s employer contributions
on behalf of Mr Molefe (inclusive of Fund interest less applicable
administration fees) together with furt her mora interest from 31 October 2019
to date of repayment thereof.
1.3. The amount of R 727 547,64, constituting the total of Mr Molefe’s own monthly
pension contributions (inclusive of Fund interest less administration fees)
together with further mora intere st from 31 October 2019 to date of payment
thereof.
1.4. The amount of R 123 332,98, constituting Mr Molefe’s performance bonus
pension contributions (inclusive of Fund interest less administration costs)
together with further mora interest from 31 October 2019 to date of payment
thereof.
2. Eskom is directed to pay Mr Molefe the post -tax value of the amounts referred to in paragraphs 1.3
and 1.4 above.
3. Mr Molefe is ordered to repay the Fund the amounts of R 7 981 727,94 and R 2 003
812,70 together with mora interest thereon from 31 October 2019 to date of repayment The Fund
is entitled to set-off against the above amount due by Mr Molefe, the net ba lance of the Transnet
Retirement Fund lumpsum received from or on behalf of Mr Molefe, upon receipt of a tax directive
from the South African Revenue Service in respect of the Tax payable on such amount, inclusive of
accruals thereto subsequent to 31 October 2019.
4. The payment referred to in paragraph 3 above shall be made within 10 days after the set -off
contempl ated in paragraph 4 has occurred.
5. Mr Molefe is ordered to pay the costs of the Fund and of SARS, such costs to include the costs of
two counsel where employed .”
4 3. The litigation to recover the amounts paid in relation to Mr Molefe’s employment
at Eskom has a long history . During the first round of litigation the Full Court of the Gauteng
Division, Pretoria, dealt with three separate but consolidated applications in which Mr
Molefe was involved, namely the Democratic Alliance v Minister of Public Enterprises and
Others: Economic Freedom Fighters v Eskom Holdings Limited and Others; Solidarity
Trade Union v Molefe and Others . 2 The questions before that Full Court were :
a) Whether Mr Molefe’s admission as a member of the Eskom Fund was
lawful.
b) Whether the lump -sum transfer from the Transnet Retirement Fund to the
Eskom Fund was lawful.
c) Whether the monthly contributions (including performance bonus
contributions) made by Eskom to the Fund on behalf of Mr Molefe were
lawful.
d) Whether payment by the Fund of a statutory lump sum pension to Mr
Molefe was lawful .
e) Whether payment of a monthly pension by the Fund to Mr. Molefe was
lawful.
4. The court held in Solidarity as far as repayment by Mr Molefe is concerned ,
as follows:
“It is declared that any payment or sum of money received by Mr Molefe
under any purported pension agreement between him and Eskom is
invalid and Mr. Molefe is ordered to repay such amounts within ten days
of this order.”3
5. The court in Solidarity mentioned the amount of R10 327 074.53 as being the
amount that Mr Molefe had received from the Fund but did not , as the order reflects ,
order repayment of that amount .4 The Fund was a party to that application and in a
counterapplication sought repayment of the amounts paid to Mr Molefe. Despite the
counterapplication not being granted , the Fund did not appeal that judgment . The SCA
and the Constitutional Court refused Mr Molefe’s application for leave to appeal and
the Fund abided by the decision.
2 [2018] ZAGPPHC 1. (Solidarity)
3 Id at para 82(c).
4 Id at para 6.
5
6. In the application that preceded the appeal before us , the Fund said it was
seeking the implementation of the order granted in the Solidarity judgment . The Fund
however claimed , in the amended notice of motion, R7 981 727.94 and R2 003 812.90
respectively from Mr Molefe. This amount does not resemble the amount stated in
Solidarity as having been paid to Mr Molefe.
7. At the heart of the dispute between Mr M olefe and the Fund in this matter is the
amount that he must repay. The Fund and Mr Molefe bo th appointed actuaries to
resolve this dispute. After a meeting between them , supplementary affidavits were
filed. The transcript of the meeting between the actuaries, their reports and the
supplementary affidavits filed reflect that the actuaries and the parties could not reach
an agree ment about the flow of money , or the method that should be followed to
calculate the amounts that must be repaid by Mr Molefe. According to Mr Molefe ‘s
appointed actuary he must repay an amount of R 1 490 920,88 . This is in stark contrast
to the amount claimed by the Fund .
8. Despite the disputes between the actuaries , the court a quo was satisfied that
the joint minutes by the actuaries disposed of any factual disput e and concluded that
a mere mathematical calculation was required to determine the amount that was
payable . The court a quo , concluded that an amount of R 7 981 727.94 was paid to Mr
Molefe.5 The court a quo applied a table to determine the amount of tax plus interest
up to 31 October 2019 and concluded that the total amount of tax plus interest due is
an amount of R2 417 144.39.6 The Fund argued that an amount of R2 003 812,70 was
repayable by SARS to it.7 The court a quo however found that Mr Molefe should repay
the amount to the Fund and not SARS.8
Grounds of appeal
9. Despite raising other defences in the papers , only four grounds of appeal were
raised on behalf of Mr Molefe before us. I therefore limit the discussion to these p oints:
a) The matter was capable of resolution through mediation and the court was
implored to direct the parties in terms of Rule 41A(3) (b) of the Uniform Rules
5 Id. Paras.3.1 -3.13.
6 Id. Par.3.14.
7 Id. Par.3.16.
8 Id. Par.4.7.
6 of Court to mediation.
b) The application that was before the Court raised material disputes of fact
known to the first respondent at the time of launching it. For that reason, the
application ought to have been dismissed with costs as the dispute should
have been dealt with by way of action proceedings.
c) The issues before the Court were determined by the Full Court and
confirmed by the SCA and Constitutional Court and could not be revisited
by the court.
d) Judicial deference requires the Court not to resolve the actuarial disputes .
Mediation
10. As far as mediation is concerned it was argued on behalf of Mr Molefe that the
Court should have exercised its discretion and referred the dispute to mediation in
terms of Rule 41A(3)(b) which reads as follows:
“A Judge, or a Case Management Judge referred to in rule 37A or a court may
at any stage before judgment direct the parties to consider referral of a dispute
to mediation, whereupon the parties may agree to refer the dispute to mediation ”
11. It was correctly conceded during argument , that a court sitting on appeal could
not refer a matter to mediation as the language of Rule 41 A(3)(b) states that a direction
to mediation should occur before judgment. We were, however, implored to still
consider the appropriateness of mediation in order to provide the courts with guidance
in this regard. I do not deem it appropriate to, within the context of this case , come to
any general conclusions regarding mediation.
12. Suffice it to say that the court a quo correctly recogni sed that the dispute
between Mr Molefe and the Fund simply contemplates a determination of the “correct
calculation ” of the amount to be paid by Mr Molefe .9 The court a quo concluded
correctly that aspects that could have been mediated were already addressed through
the appointment and interactions of the actuaries and the filing of the joint minute.10
9 Judgment , court a quo par.5.1.3 .
10 Id. Par.5.1.8.
7 13. The only people that could have assisted in the determin ation of the disputed
amount were the two actuaries and a perusal of the transcript of their meeting, their
reports and the joint minute s filed by them make it clear that t hey were not able to come
to a mutually acceptable solution. To have referred the matter to mediation woul d have
been an exercise in futility.
Referral to evidence and deference to experts
14. The second ground of appeal relates to the alleged misdirection by the court a
quo in concluding that the factual disputes raised by Mr Molefe could be resolved on
the papers.11 This ground is closely connected to the ground of appeal that the court a
quo should have deferred to the actuaries and should not have calculated the amount
itself. I therefore deal with these two grounds simultaneously.
15. The court a quo held that there were no factual disputes that could not be
determined on the papers . The issues involved a mere mathematical calculation and
the actuaries confirmed in their joint minutes that apart from the differences mentioned
there, they were in agreement.12
16. In the judgment in the application for leave to appeal the court a quo went further
and explained that the di spute between the actuaries was purely based on legal
arguments and not on actuarial principles. The court a quo held that the facts were
simply those already established by the Full Court in Solidarity . The court a quo held
that there was no dispute regarding the payment received , or what has been paid to
SARS. And that the remainder of the disputes were legal arguments that did not fall
within the purview of the experts.13 It was merely a determination as to who should
make the repayments and to whom .14The actuaries brought out a joint minute and as
a matter of principle the parties are bound by the agreement and may not deviate from
the agreement without proper explanation and the consideration of prejudice.15
17. In my view the court a quo over-simplified the dispute. T he respective reports ,
of the actuaries , the supplementary affidavits and the transcript of the meeting between
11 Id. Par.13.
12 Id. Par. 5.2.1.
13 Judgment , application for leave to appeal para 17 .
14 Id. Par.18.
15 HAL obo MML v MEC for Health, Free State [2022]1 ALL SA 28(SCA) .
8 them reveal that there were substantial disputes between the parties, not only factual ,
but also inter alia about the method to be applied to calculate the amount as well as
the flow of money.
18. The Fund’s actuary , Ms Ryan, applied the amounts provided to her by the
Fund’s attorneys and did not independently establish the correctness of the amounts
from source documents . Mr Mathopa, the actuary employed by Mr Molefe, raised this
as an issue . The Fund is of the view that nothing turns on this and explained that the
amounts were provided by it , and the attorneys in turn provided the actuary with them .
19. However, the amount claimed by the Fund did not remain constant and kept on
changing throughout . In the counter application that led to the Solidarity16 judgment,
the Fund indicated that Mr Molefe was paid an amou nt of R10 327 074.53 . Initially , in
this application , the Fund claimed an amount of R4 315 874 . This amount escalated to
R7 796 566 in the amended notice of motion filed during August 2021. In a letter to its
members, the Fund indicated that an amount of R7.9 000 000.00 was paid to Mr Mo lefe
after tax. In a letter dated 19 May 2017 , the Fund’s attorneys were inst ructed that R9
767 743.68 was the gross amount paid to Mr Molefe.
20. The Fund explained in its replying affidavit that the amounts previously claimed
were rectified by the actuarial calculation attached to that affidavit. Significantly,
however, it persisted in this affidavit with the view that the issue regarding the
calculation of the amount should be referred to oral evidence . The Fund explained that
it would not be in the interest of justice to dismiss the application . It is undisputed that
Mr Molefe is indebted to the Fund even on his own version and this narrow point could
be determined by referring it to oral evidence.
21. The Fund, in the papers, indicated that the actuaries should be subjected to
cross -examination due to their divergent view s and conclusions. The Fund requested
the court a quo to refer the matter to evidence. In its argument before us the Fund
disavowed this stance and insisted that there was no dispute of fact that could not be
determined on the papers and that the court a quo was correct in resorting to a
mathematical calculation of the amount based on the information before it. The view of
counsel on behalf of the Fund, during argument before us, cannot be understood to be
16 Supra , fn 2.
9 a concession that the Fund has abandoned the case ma de out in the papers.
22. It was argued on behalf of Mr Molefe that the matter should not be referred to
evidence, but that the application should be dismissed. The argument was that the
factual dispute was foreseeable , and therefore the Fund should have instituted action
proceedings relying on Carrara and Lecuona (Pty) Ltd v Van Den Heever Investments
Ltd and Others .17
23. When considering whether a referral to evidence is appropriate , the starting
point is Rule 6(5)(g) which provides:
“Where an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems fit with a view to ensuring
a just and expeditious decision. In particular, but without affecting the generality
of the a fore going , it may direct that oral evidence be heard on specified issues
with a view to resolving any dispute of fact and to that end may order any
deponent to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear an d be examined and cross -examined as a
witness or it may refer the matter to trial with appropriate directions as to
pleadings or definition of issues, or otherwise. ”
24. In Mamadi and Another v Premier of Limpopo Province and Another ,18 the
Constitutional Court explained:
“The purpose of the court's discretion under this rule to dismiss an application is
to discourage a litigant from using motion proceedings when the court will not
be able to decide the dispute on the papers. This is a waste of scarce judi cial
resources and prejudicial to the respondent. An applicant should not be able to
use motion proceedings when the worst outcome is confined to
a referral to oral evidence or trial. Rule 6(5)(g) thus vests a power in courts,
where motion proceedings have been inappropriately used in this way, to
penalise a litigant through dismissal without rendering a final decision. In short,
therefore, a dismissal in terms of rule 6(5)(g) serves to punish litigants for the
17 1973(3) SA 716 (T) p.720.
18 [2022] JOL 54408(CC) at para 42 and 44.
10 improper use of motion proceedings.”
…
This does not mean that an applicant in a rule 53 application is entitled, as of
right, to have a matter referred to oral evidence or trial. General principles
governing the referral of a matter to oral evidence or trial remain applicable.
Litigants should, as a general rule, apply for a referral to oral evidence or trial,
where warranted, as soon as the affidavits have been exchanged. Where
timeous application is not made, courts are, in general, entitled to proceed on
the basis that the applicant has accepted that factual disputes will be resolved
by application of Plascon -Evans. Likewise, where an applicant relies
on Plascon -Evans, but fails to convince a court that its application can prevail
by application of the rule, a court might justifiably refuse a bela ted application
for referral to oral evidence. A court should however proceed in a rule 53
application with caution. An applicant might institute proceedings in good faith in
terms of rule 53, in order to secure the advantages of the rule and on the basis
that the application can properly be decided by application of Plascon -Evans,
only for the respondent to later show that this is not so. In these circumstances,
provided the dispute of fact which emerges is genuine and far -reaching and the
probabilities ar e sufficiently evenly balanced, referral to oral evidence or trial, as
the case may be, will generally be appropriate. ”19
25. The ques tion to ask when considering whether to refer an application to oral
evidence is:
“On the basis of the Wallach test, it would appear that the critical question in this
regard is: Is there material which could be placed before the Court which could
inform an evaluation of these contentions, the resolution of which is critical to the
determination of the main application?”20
26. The Court has a discretion to refer a matter to oral evidence. This is a discretion
in the true sense , and should not be easily interfered with21, but if the discretion was
19 Id. Par.44.
20 Shoprite Holdings Ltd v Oblowitz and others [2006] 3 All SA 491 (C).
21Trencon Construction (Pty) Limited v Industrial Development Corporation of South Africa Limited and
another [2016] JOL 33413 (CC ) para 88 ‘When a lower court exercises a discretion in the true sense,
it would ordinarily be inappropriate for an appellate court to interfere unless it is satisfied that
this discretion was not exerc ised:
". . . judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it
11 not properly exer cised, a court on appeal may interfere. In this instance , the court a
quo resorted to its own calculation and ignored the different experts’ views , the
disputes reflected in their reports and the fact that the amount claimed did not remain
consistent. All these factors point to the fact that oral evidence and cross -examination
are required to properly determine the dispute.
27. It is trite that experts may not usurp the adjudicative functions of the courts, but
it is also acknowledged that courts routinely rely on expert evidence in a variety of
fields.22 We were referred to Minister of Environmental Affairs and Tourism and Others
v Phambili Fisheries (Pty) Ltd and Another ,23 where the importance of judicial
deference was stressed. This was confirmed by the Constitutional Court in Bato Star
Fishing v Ministe r of Environmental Affairs and Tourism .24 Although these matters dealt
with review applications and the deference to the decision -maker’s decision was made
in another context, we were implored to apply the same principle here. In this matter ,
a referral to evidence will in any event not lead to the usurpation of the powers of the
court. Evidence will assist the court in establishing the disputed amount.
28. The amount determined by the court a quo did not reflect the calculations of the
actuaries. The amount ultimately awarded by the court a quo is at odds with the
calculations of the actuaries and the amount claimed by the Fund.
29. To determine whether the court a quo should have resorted to its own
calculation , a closer look is required at the views of the actuaries. The joint minutes set
out the aspects that they disagree on. To interpret the disagreements, one must refer
to their respective reports . In the report dated 19 November 201 9 compiled by Ms
Ryan, it is recorded that she was requested to comment on the correctness of the
calculations made by the Fund. It would seem then that she did not independently
determine the actual payments made to Mr Molefe from the source documents. This
had reached a decision which in the result could not reasonably have been made by a court properly
directing itself to all the relevant f acts and principles"(footnote omitted).
An appellate court ought to be slow to substitute its own decision solely because it does not agree with
the permissible option chosen by the lower court. ’
22 South African Human Rights Commission Obo Jewish Board of Deputies v Masuku and Another
(South African Holocaust and Genocide Foundation and others as amici curiae) [2021] JOL 52146
(CC) para. 145. Gentiruco Ag v Firestone Sa (Pty) Ltd 1972 (1) Sa 589 (A) At 616. Salem Party Club
and Others v Sale m Community and Others 2018 (3) SA 1 (CC) par.63.
23 Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd and
Another (32/2003, 40/2003) [2003] ZASCA 46
24 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism 2004 (4) SA 290 (CC)
par.48 .
12 issue was raised by Mr Mothapo , during the meeting of the actuaries as confirmed by
the transcript of the meeting.
30. Ms Ryan continues to identify three issues that her opinion deals with. They are
the following:
a) The calculation of the special contribution required to fund the additional
retirement benefit .
b) The calculation of the Fund benefits; and
c) The calculations of the accrual of interest.
31. She then procee ds to clarify that her opinion is confined to the specific issues
mentioned and is not a comprehensive analysis nor should it be construed as
confirmation of any matter not specifically confirmed. She confirmed the correctness
of the calculation and th e correct application of actuarial factors. What is significant is
the exclusion from her opinion of, inter alia , the correctness of the data and personal
information applicable to Mr Molefe and used in the calculations. The inference that
can be drawn from this is that she did not independently form an opinion from the data
provided to her. This concern was raised by Mr Mothapo during their meeting .
32. Mr Mothapo concluded in his report that Mr Molefe owes the Fund R1 490
920.88. The actuaries came to vastly different conclusions. The amount ultimately
awarded by the court a quo is at odds with the calculations of the actuaries and the
amount claimed by the Fund.
33. For all the above reasons I conclude that t he court a quo erred when it
proceeded to do the calculation, able as a judge may be, judges should proceed with
caution when experts disagree especially when the supporting evidence indicate s that
there are facts that need clarification. In such instances evidence is required to
determine the issue. Only if this is done will the court be able to execute its function as
arbiter of the dispute properly .
34. It was argued on behalf of Mr Molefe that the application should be dismissed
as the dispute was foreseeable. I do not agree, it was only when the experts failed to
agree, and the supp lementary affidavits were filed that it became clear that this limited
dispute could not be resolved on paper. Because the court a quo already expressed a
13 view on the amount payable, it will be in the interest of justice that the evidence be
heard by another judge.
The court could not revisit the dispute between the parties
35. The argument that the dispu te has already been determined and could not be
revisited by this Court has no merit. The liability was determined , but the amount
payable remained in dispute as is abundantly clear from the papers. It is this amount
that needs to be established. Solidarity25 did not establish the amount payable, and it
is this amount that the Fund requires of this Court to determine.
SARS ’s continued involvement in the matter
36. It was argued that South African Revenue Service’ s (“SARS”) attendance at the
hearing was not required and that it should not be awarded costs. The appeal was,
however, against the whole of the judgment and orders granted. The heads of
argument filed on behalf of Mr Molefe also took issue with whether the portion of tax
that was withheld and paid over to SARS is refundable .
37. Only belatedly in the submissions filed for purposes of the hearing , it became
clear that this issue was laid to rest. SARS is concerned with the interpretation of the
Income Tax Act and in so far as the computation by Mr Molefe and the Fund seek to
circumvent the provisions of inter alia , section 190 of the T ax Administration Act, which
deals with refun ding taxes. SARS has an interest in the litigation. It was correctly
argued that SARS cannot sit idly by when it has obtained a judgment that clarifies the
pertinent legal position on fundamental legal principles pe rtaining to refunds and
implementation of tax legislation. SARS is therefore entitled to its costs and the costs
should follow the result of the appeal.
The failure to provide security
38. There is one remaining aspect and that is even though the Fund and SARS
requested security for costs in terms of Rule 49(13) of the Uniform Rules of Court, no
security was provided for by Mr Molefe. The Court requested the parties to file
25 Supra , at fn 2.
14 submissions in this regard. Only counsel on behalf of Mr Molefe complied even as he
did so rather belatedly. The proverbial horse has bolted. None of the respondents
brought an application to compel security, neither did they file any submissions despite
the invitation to do so. The respondents did not apply to the SCA in terms of section
17(5) of the Superior Courts Act that security for costs be provided, they did not object
to lodgement of the record of appeal and the Fund set the matter down for hearing.
These facts jus tify the conclusi on that respondent’s acquiescence to the prosecution
of the appeal and nothing further needs to be said in this regard.
Costs
39. The costs should follow the result and the Fund should pay the costs of the
appeal.
The following order is made:
1. The appeal is upheld with costs to be paid by the First Respondent of both
the Appellant and the Third Respondent , the costs will include the costs of
two counsel where so employed on scale C.
2. The order of the court a quo in relat ion to paragraphs 2 ,3,4,5 and 6 are set
aside and substituted with the following order :
a) The matter is referred to oral evidence to determine the amount payable by
the Appellant to the First Respondent, before a different Judge.
b) The First Respondent must discover all document s relating to the calculation
and flow of money as well as all documents it intends to use during the
leading of evidence within 15 days of this order.
c) The Appellant must discover all documents relating to the calculation and
flow of money and all document s he intends to use during the leading of
evidence within 15 days of the filing of the documents referred to in the
previous paragraph.
d) The actuaries may file supplementary reports after receiving the documents
referred to above and must do so at least 45 days prior to the matter being
heard.
e) The costs of the application will be costs in the referral to evidence.
16 Date of Hearing : 12 February 2025.
Date of Judgment : 11 July 2025.