IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2025-119564
In the matter between –
LETAU, NTHABISENG Applicant
And
FUNDS AT WORK UMBRELLA PENSION FUND First Respondent
MOMENTUM METROPOLITAN LIMITED Second Respondent
SOUTH AFRICAN AIRWAYS TECHNICAL (SOC) LTD Third Respondent
By transmission of this judgment by email and uploading on Court Online /
Caselines the judgment is deemed to be delivered
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) JUDGMENT : 24 AUGUST 2025
..........................
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JUDGMENT ON LEAVE TO APPEAL
SNYCKERS AJ
INTRODUCTION
[1] The applicant (Letau) brought an application in urgent court, launched on 22
July 2025, set down for 29 July 2025, affording the respondents a day to answer
the application.
[2] The application was for final interdictory relief. The relief sought was to declare
unlawful the decision of the first respondent pension fund, communicated on 4
June 2025, to withhold Letau’s pension benefits in terms of section 37D of the
Pension Funds Act 24 of 1956, and directing the fund to pay over the pension
within 5 days. The founding papers spanned some 110 pages.
[3] The application was, contrary to the applicable directives, not uploaded onto
Caselines. By the time the application wa s called, on 29 July 2025, the third
respondent (the employer, SAAT) had on 28 July 2025 uploaded the application
to Caselines and had answered the application also on 28 July 2025.
[4] I read all the papers that had been filed in the application before the matter was
called on 29 July. I mention this because of the suggestion in the leave to appeal
application that I had not done so. When the matter wa s called, SAAT was
represented by senior and junior counsel. Letau was represented by Mr Alcock.
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Mr Alcock sought an indulgence for the matter to stand down to Friday 1 August
and for Letau to file a replying affidavit which I was told could be done by 12.00
on Wednesday 30 July. The matter was stood down on 29 July 2025 to 1 August
2025, for Letau to submit a replying affidavit by 12 .00 on Wednesday 30 July.
Letau was directed to address inter alia the failure t o have complied with the
directives relating to uploading applications on Caselines to ensure their ability
to be heard in urgent court. The costs of the day of 29 July were reserved.
[5] A replying affidav it was filed at 14.32, some two and a half hours late, on
Wednesday 30 July.
[6] I read the replying papers before the matter was argued, and also heads of
argument that SAAT had uploaded on Caselines. Again, I mention this because
the application for leave to appeal suggests, incorrectly and with no foundation,
that I had not read all the papers.
[7] The matter was argued for most of the morning on Friday 1 August 2025, in a
week in which it contended for attention with 32 other urgent applications that
had found their way onto my roll in that week and preceding weekend . I gave
judgment ex tempore after argument, dismissing the application with costs on
an attorney and client scale, including the reserved costs of 29 July. I gave my
reasons ex tempore.
[8] My reasons concentrated on the fact that no case whatsoever had been made
out in respect of one essential aspect of final inter dictory relief – namely the
absence of any other alternative remedy, and on the closely aligned fact that
the only justification that had been given for Letau’s urgently approaching a
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court, instead of availing herself of the statutory remedies available to her under
the Pen sion Funds Act and Financial Services Regulation Act , and with the
extreme degree of urgency employed by her , was her financial plight that
entailed her creditors closing in on her, a justification that was entirely
inadequate in the circumstances, and was also self-created. The reason given
in my ex tempore judgment for why it was self-created was because Letau had
resigned from the employment of SAAT in January 2025, instead of attending
the disciplinary hearing that had been scheduled for her to attend to the
concerns that had led to the withholding of her benefits by the fund , and that
she had been suspended on full pay until her resignation.
SUGGESTION THAT NOT ALLOWED TO ADDRESS MERITS
[9] The application for leave to appeal inaccurately says I did not allow Letau ’s
counsel to address me on the merits . I had in fact debated the two most
important aspects of the merits both with Letau’s counsel, Mr Alcock, and with
Mr Blou, who appeared with Mr Ndlovu for SAAT. These related to the following
two questions:
(a) whether withholding of a pension under s37D, on the authority of Highveld
Steel and Vanadium Corporation Ltd v Oosthuizen 2009 (4) SA 1 (SCA),
required legal proceedings to be actually pending before a court, for such a
withholding to be lawful – Mr Alcock submitted that pending legal
proceedings were a prerequisite and Mr Blou submitted they were not – I
was taken to the facts in Highveld Steel during the hearing (where I had
access to the judgment via Juta stat), and Mr Blou correctly submitted that,
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both on the facts and on the reasoning employed in Highveld, it was not a
prerequisite for legal proceedi ngs to be pending to render a withhol ding
decision under s37D lawful, and that in fact in most cases this would not be
possible by the time the withholding was required, on the reasoning in
Highveld;
(b) whether the ‘misconduct’ referred to in the section was to be read eiusdem
generis with the references to fraud and dishonesty, as importing such an
element as a requirement, to which Mr Blou conceded in the affirmative, and
whether, despite the fact that the charges in the charge sheet advanced
against Letau had not expressly referred to fraud or dishonesty (an aspect
of the merits Mr Alcock specifically pressed on me), the material that served
before the fund, as set out in the answering affidavit, did, which was
confirmed by Mr Blou, not disputed by Mr Alcock in reply, and confirmed by
a consideration of the answering papers employing the tests applicable to
motion proceedings for final relief.
REASONS INADEQUATE
[10] It is true, however, that my rea sons expressed in my ex tempore
judgment did not traverse the merits. This was for the simple reason that doing
so would have been entirely obiter, in circumst ances where a n essential
element of final interdictory relief had not been made out.
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[11] I do not read the recent judgment of the Constitutional Court in Vodacom
(Pty) Ltd v Makate & Another 2025 JDR 3389 (CC) as laying down a principle
or rule that a ju dge at first instance may not con fine his or her judgment and
reasons to a decisive element in the case before him or her, without traversing
all other aspects that are rendered obiter by the decisive element. Mr Shamase,
who appeared for Letau in the application for leave, that was argued from 10:00
uninterrupted until lunch time on Friday 22 August, correctly did not suggest
otherwise.
WRONG TEST APPLIED – ALTERNATIVE REMEDY
[12] The application for leave to appeal, and the argument on it, suggested
that I had inc orrectly applied a test, namely the need for the exhaustion of
alternative remedies, that was applicable to review applications, which this was
not.
[13] This entirely misconstrued the relevance of the availability of alternative
remedies in the case and in my reasons offered.
[14] Letau sought final interdictory relief on motion, by way of the ut most
urgency (giving the respondents a day in which to answer). To succeed on this,
a strong case would be required that there was no adequate alternative remedy
available other than to approach the court for final interdictory relief (and to do
so with the utmost urgency). Without making out such a case, a final interd ict
was a non-starter.
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[15] This was wh y I pressed on Mr Alcock at the hearing on 1 August the
need for him to justify Letau’s not having av ailed herse lf of the ability to
approach the Pension Funds Adjudicator with a complaint about the fund ’s
decision to withhold, instead of approaching a court directly, and on such terms
of extreme ur gency. His reluctance to answer had me point out to him that it
was important to me that he give me his full answer to this, as this was the issue
in his case that most concerned me.
[16] Mr Alcock offered two justifications only:
(a) the authority of Cape Town Municipality v South African Local Authori ties
Pension Fund & Another 2014 (2) SA 365 (SCA), a decision that was
handed up and debated during the hearing, in particular para 29 in which it
was pointed out that the courts and the Pension Funds Adjudicator enjoyed
concurrent jurisdiction and that once the court ’s jurisdiction had been
engaged, that of the Adjudicator stood to defer; and
(b) the financial plight said to be faced by Letau.
[17] The decision in Cape Town Municipality does not address the problem
that faced Letau. The problem is the availability of ade quate alternative relief
from the Pension Fund Adjudicator. This is a serious problem for an interdict, in
particular a final one such as sought in this case, let alone one sought on such
extreme urgency. The existence of concurrent jurisdiction does not address this
problem at all, nor does it render final interdictory relief from a court, sought on
an extremely urgent basis, appropriate in the teeth of the existence of such
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alternative avenues to be able to achieve the same relief as that sought from
the court.
[18] The fin ancial plight was also insufficient. Letau’s founding affidavit
indicated that at some point, not identified as to when, Letau approached
persons at the Adjudicator ’s office who advised that the process before the
Adjudicator would take fou r months to be reso lved. No documents were
attached in this regard. The affidavit stated that Letau had been suspended for
the better part of 2024, on full pay, pending a threatened disciplinary hearing
that dragged i ts feet in being called. After Letau initiated a complaint at the
CCMA, she was then called to atte nd a hearing, which was post poned to
January 2025. During all this time she was suspended on full pay. She resigned
instead of attending the hearing. The full reason for the resignation is captured
thus in her founding affidavit:
“Given the amount of undue stress that I had en dured regarding the
whole matter I elected to not attend the hearing I instead r esigned from
the employ of the Third Respondent.”
[19] In the circumstances, the charge in the application for leave to appeal
that “the learned judge failed to analyse the Applicant ’s reasons for resigning
which reasons are justiciable in law” is puzzling, to put it at its mildest.
[20] In the heads of argument uploaded before the leave application was
argued, this is expan ded upon as contending that a case had been made out
for constructive dismissal, and that this ought to have been considered in the
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judgment. The founding affidavit breathed not a word about constructive
dismissal. It mentioned only “stress” in the context of the r esignation, the full
explanation of which is set out above. There had also not been any complaint
of a constructive dismissal at any point between Letau’s resignation and the
hearing of the leave to appeal application. There is no merit at all in this
contention.
[21] In the heads on leave to appeal, and before me in argument, I was
referred to the judgment in Voltex (Pty) Ltd v Bidvest South Africa Retirement
Fund & Others [2025] ZAGPPHC 368 (GP). In that case, the employer sought
urgent interim relief against a pension fund which was on the point of paying
out a pension, for the funds not to be paid out pending the determination of an
action to be instituted by the employer. Strijdom J granted the interim relief. The
submission before me was that Strijdom J had not required the employer to
exhaust remedies such as approaching the Pension Funds Adjudicator, and
why should an employee then be burdened with such a requirement.
[22] The respective positions concerning adequate alternative relief in
Bidvest and here differ starkly. In Bidvest, the employer was faced with a fund
that was on the point of paying out, and one that had expressly indicated it
would do so unless compelled by a court order not to do so . This weighed
heavily in the assessment by Strijdom J of the existence of an adequate
alternative remedy.1 It could not seriously be contended that the employer in
Bidvest could obtain adequate redress from the Pension Funds Adjudicator to
1 Bidvest paras 30 to 36.
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avoid the imminent and irreparable harm that the fund was threatening to inflict
by paying out the funds.
[23] In the instant case, one i s not dealing with a preservation of the status
quo as in Bidvest, nor with relief that cannot be obtained from the Pension
Funds Adjudicator, but with final relief ordering the fund to pay out the pension.
That relief is equally available from the Pension Funds Adjudicator. It is only the
ostensible urgency of the need for the pay -out that could conceiv ably render
such alternative relief inadequate. Which is why it was important to consider the
self-created nature of that urgency in the circumstances.
[24] The matter of urge ncy in the present case is accordingly tightly bound
up with the issue of an alternative rem edy. On the papers, Letau had already
threatened in May to approach a court if her pension were not paid out to her.
This threat was repeated in early June, just before the decision, and after
engagement with the fund on the pending decision. The fund ’s decision to
withhold was communicated on 4 June 2025. This application was launched
almost two months later, affording the respondents a day in which to answer. I
have alr eady alluded to the complete failure on the part of Letau’s team to
secure a Caselines file for the matter , this having been procured by the
employer’s team on 2 8 July. Technical difficulties are blamed for this in the
replying affidavit. The matter was enrolled in such a fashion that the likelihood
that it would be properly answered and heard was minimal. I read the papers
as they developed, and heard the mat ter, for the best pa rt of the morning of 1
August. The employer answered and dealt with it as best it could. This was a
significant indulgence to be afforded to any applicant in the circumstances. On
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the governing directives, a striking with an order de bonis propriis would have
been entirely justified.
[25] I pressed Mr Alcock at the hearing to offer a justification for coming to
court on such a timetable, and in particular affording the respondents one day
to answer the application. His justification for the urgency was Letau’s plight
caused by her creditors (caused by her resignation). As for the justification for
affording the respondents one day in which to answer, Mr Alcock offered by way
of justification only that this was his usual practice. I need not belabo ur with
indignant superlatives the extent to which this was not an adequate justification.
[26] At the hearing for leave to appeal, Mr Shamase submitted that Luna
Meubels2 laid down a rule that one needed to bring an urgent application on at
least seven days ’ notice, and that, a part from saying a respondent had to be
afforded at least two hours to answer, there were no rules as to the time needed
to be afforded to a respondent to answer . The submission was that the
application complied with these rules.
[27] It is unnecessary to belabour the degree to which this misconstrues the
principles applicable to making out and justifying a case for urgency. One needs
to justify the degree of urgency employed, including the time chosen to afford
the respondent to answer. This was not done here. There was no attempt at all
to do so here.
[28] I am of the view that there is no reason able prospect that an appellate
court could find that a proper case had been made out for the absence of an
2 Luna Meubel Vervaardigers (Edms) Bpk v Makin & another 1977 (4) SA 135 (W).
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adequate alternative remedy, in the circumstances of this case, an essential
element in the final interdictory relief sought by Letau.
[29] There is therefore no reasonable prospect that Letau would succeed on
appeal.
MERITS
[30] If I were persuaded that there was a reasonable prospect that another
court would find, on the tests applicable on motion for final relief, that Letau had
established a case that the fund was not entitled to withhold her pension under
s37D and the Highveld Steel test, I may have considered granting leave despite
the weakness of a case for the absence of an adequate alternative remedy.
[31] This was also why I pressed the two issues on the merits referred to in
paragraph 9 above at the hearing on 1 August . Had it been so, for example,
that a legal prerequisite for lawful withholding had clearly and undeniably been
absent, that might have been a heavy factor to consider despite the presence
of an adequate alternative remedy (i.e. despite the fact that such a case could
also be presented to the Pension Funds Adju dicator). This, however, was not
the case.
[32] At the hearing on 1 August, Mr Blou also pointed out that, for Letau to
succeed on the merits, she would have to succeed, in the teeth of Plascon-
Evans, to show that the fund could not reasonably have decided to withhold her
pension. It would not be sufficient for her to show that, all things and all evidence
13
considered, the correct assessment would be a decision not to withhold. Mr
Alcock did not take issue with this submission in reply.
[33] The issue of the existence of an alternative remedy in approaching the
Pension Funds Adjudicator also brings to the fore the different tests that would
be applicable in such a complaint and in the adjudication of a demand for a final
interdict in court. The Pension Fund Adjudicator would be able to reconsider the
decision of the fund to withhold, and be persuaded by evidence that it ought not
to withhold. This was then in turn subject to an appeal , in the form of a full re -
hearing, to the Finan cial Services Tribunal or to a court , again assessing the
evidence for and against a withholding of the pension . An application to court
for a final interdict, however, would need to make out a clear right that the fund
could not lawfully withhold the pension.
[34] On the application of the tests applicable in motion proceedings, there is
in my view no reasonable prospect that an appellate court could find that a clear
case sufficient for final interdictory relief had been established, that the fund
was not entitled, with the material that the answering affidavit set out as having
been placed before the fund, to have exercised its discretion to withhold the
pension under s37D.
COSTS
[35] I have set out above some respects in which the application was,
objectively viewed, brought vexatiously urgently. Quite apart from the fact that
the application was brought almost two months after the decision it attacked,
and enrolled for hearing a week later, there could never have been a justification
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for affording the respondents a day in which to answer the application. The
manner of its prosecution was such as to cause maximum prej udice to the
convenience of the employer to answer it and to the court to deal with it properly.
It would in my view have been entirely justified to grant a punitive order de bonis
propriis in the circumstances, when regard was had to the directives applicable
to this court, and also in particular to the justification that had been offered at
the hearing for having afforded the respondents a day to answer.
[36] In the exercise of my discretion in respect of costs, I believed there to be
more than adequate justification for an order on an attorney and client sca le,3
including for the costs reserved for the day of 29 July. I was not inclined to make
an order de bonis propriis, nor was one sought. This is something that can be
taken up between Letau and her attorneys.
[37] I do not believe there is a rea sonable prospect that an appellate court
would interfere with that cost order in these circumstances.
FINAL OBSERVATIONS
[38] The application for leave to appeal is laced with a degree of gratuity, and
even menace,4 that is highly unfortunate and entirely unnecessary . It makes
unwarranted assertions about my not having read the application as a whole,
perhaps because of its own unfair and misguided assessment arising from the
3 The additional reference to scale C is inapplicable in an attorney and client award.
4 “[T]he learned judge spectacularly failed…”.
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degree t o which the manner of its prosecution had made such a task more
difficult than it would otherwise have been . It alleges, for example, incorrectly,
a failure to have allowed engagement on the merits when there was
engagement on the merits, as an assessment of the transcript would reveal.
[39] At the hearing of the application for le ave to appeal, Mr Shamase
advanced none of the grounds suggesting that there had not been a fair
hearing, or that there had been a total failure of mind . I must also additionally
record my appreciation of the fact that Mr Shamase’s presentation of the
application on 22 August was exemplary in its conduct. While I was not
persuaded that leave to appeal ought to have been granted, I was gra teful, in
the circumstances, for the manner in which Mr Shamase conducted the
application on 22 August 2025.
[40] In the circumstances, the application for lea ve to appeal is dismissed
with costs, on scale B, including the costs of two counsel where engaged.
______________________
SNYCKERS AJ
For applicant: S Shangase
Instructed by: Shamase Ramotswedi Attorneys, Alberton
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For third respondent: J Blou SC
MN Ndlovu
Instructed by: Werksmans, Sandton