IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
THE MEC: FREE STATE DEPARTMENT FOR HEALTH
and
MOTSUM _I KRISJAN POLORI
PHOKO FRANCIS STUURMAN
GOVERNMENT EMPLOYEES PENSION FUND
Not reportable
Case no: 2916/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
GOVERNMENT PENSIONS ADMINISTRATION AGENCY FOURTH RESPONDENT
Neutral citation: MEG: Free State Department for Health v Polori and Others
(2916/2024) [2025] ZAFSHC 343 (31 October 2025)
Coram: Daffue J
Heard: 21 August 2025
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives by email and released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 31 October 2025.
Summary: Application by employer to interdict pension fund from paying pension
benefits to two former employees pending finalisation of action to claim damages -
section 37(0)(1 )(b) of the Pension Funds Act 24 of 1956 relied upon - employer averring
fraud, corruption and/or theft by former employees in allowing payments to third parties
not entitled thereto - requirements for an interim interdict proven against one former
employee only.
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ORDER
1 The third and fourth respondents are interdicted from paying out the entire pension
benefit interest of the first respondent, Motsumi Krisjan Polori, pending finalisation of the
action instituted by the applicant under case number 4240/2025.
2 The first respondent shall pay the applicant's costs of the application pertaining to
him, including the wasted costs of 12 June 2025, inclusive of the fees of counsel on scale
A.
3 The applicant's application against the second respondent, Phoko Francis
Stuurman, is dismissed with costs, excluding the wasted costs occasioned by the
postponement of 12 June 2025.
Daffue J
Introduction
JUDGMENT
[1] This is an application by the MEC: Free State Department for Health (hereinafter
referred to as the applicant) in terms whereof the applicant initially sought the following
relief, quoted verbatim:
'1. That the third and fourth respon·dents be restrained and interdicted from paying out the
entire pension benefit interest held by the third and/or fourth respondents and standing to the
Pension Fund credit of the first and second respondents pending the action to be instituted by the
applicant against the first and second respondents in this Honourable Court;
2. The applicant is ordered to complete its investigation and to institute the action
proceedings to recover its loss from the first and second respondents as a result of theft and/or
fraud commi_tted against the applicant by the first and second respondents within 90 days from
the date of this order;
3. In the event of the failure fails to institute action proceedings against the first and second
respondents, either party may approach this Honourable Court on the same papers
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(supplemented as is necessary) for a reconsideration of the order.
4. The costs of this application are to be paid by any respondent/s who opposes this
application, jointly and severally, the one paying the other to be absolved.
5. Such further and/or alternative relief as this Court deems meet.'
[2] Messrs Motsumi Krisjan Polori (Mr Polori) and Phoka Francis Stuurman (Mr
Stuurman), two former employees of the Free State Department of Health, are cited as
first and second respondents respectively. They oppose the relief sought. The third and
fourth respondents are the Government Employees Pension Fund and Government
Pensions Administration Agency respectively. The latter two respondents abide the
Court's decision.
Some preliminary issues
[3] It became clear during oral argument that the applicant had indeed issued
summons recently against Messrs Polori and Stuurman out of the High Court under case
number 4240/2025. The summons has been served on both. I accept that the action
proceedings will be defended. During oral argument, Mr Yawa on behalf of the applicant
sought an appropriate amendment of paragraph 1 of the notice of motion which was not
opposed. This was granted. Paragraphs 2 and 3 have become irrelevant. The only other
aspect to be considered is the costs of the application.
[4] Mr Litheko submitted during oral argument on behalf of Mr Stuurman, as
canvassed in his answering affidavit, that the applicant's deponent, Mr Thabang Alfred
Molise, was not authorised to depose to the affidavits on behalf of the applicant. Reliance
was placed on the wording of the letter of authority annexed as annexure FA2 to the
founding affidavit. This letter dated 4 September 2024 and signed by the Head of the
Department of Health, Mr Mahlatsi, informed Me Moleko of the Office of the State
Attorney, Bloemfontein that Mr Molise had been duly authorised to depose to an
answering affidavit in the application that Mr Polori brought earlier against the Department
answering affidavit in the application that Mr Polori brought earlier against the Department
of Health under the very same application number. During oral argument, another letter
dated 2 September 2024, was presented to the Court to counter Mr Litheko's
submissions. In this letter the Department of Health granted authority to Mr Molise to
depose to affidavits in the application against Messrs Polori and Stuurman.
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[5] Mr Molise made the point in the founding affidavit that he was personally involved
in the investigation of misconduct allegedly committed by Messrs Polori and Stuurman
and that he was also responsible for 'initiating their disciplinary hearing'. He is the Deputy
Director: Labour Relations of the Department of Health, acting in that capacity with effect
from 23 July 2024. Therefore, he deposed to factual issues allegedly falling within his
personal knowledge. The cogency of his version will be considered in due course, but
there is no reason to turn a blind eye thereto.
[6] Mr Litheko's submission related to Mr Molise's authorisation to depose to the
affidavits and not to the applicant's instructions to the State Attorney to appear on its
behalf in these proceedings. It is trite that the Office of the State Attorney represents
provincial departments such as the applicant in litigation. Mr Molise was called upon to
present evidence. He is a witness and was not required to be authorised to present his
testimony. The point taken is without substance.
[7] A strange occurrence should be recorded. Mr Polori initially instituted proceedings
under the same application number, ie 2916/2024, against the MEC: Free State
Department of Health (the present applicant) in terms whereof he sought an order
directing the MEC to process his pension claim immediately. This application was issued
on 27 May 2024. Four months later, the answering affidavit deposed to by Mr Molise on
behalf of the MEC, was filed. On 22 November 2024 the present application was served
on Messrs Polori and Stuurman.
[8] The applicant acted irregularly; the MEC should have either issued a new
application under a different application number or filed a counter-application in the
application brought by Mr Polori. In the latter instance, the MEC could have applied for
the joinder of Mr Stuurman, the Government Employees Pension Fund and its
Administration Agency. This did not happen, but a so-called new and fresh application
Administration Agency. This did not happen, but a so-called new and fresh application
was issued under the same application number. The MEC who is cited as respondent in
Mr Polori's application, is now the applicant under the same application number. I referred
to this strange and irregular procedure during oral argument, but was requested to ignore
the documents filed in Mr Polori's application. In my view, I cannot turn a blind eye to the
evidence presented in that application and will consider the aspects raised. Mr Polori filed
an answering affidavit t_o which the applicant replied in the application to be adjudicated
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by me. The same applies to Mr Stuurman.
The issue to be adjudicated
[9] The issue is whether the applicant as a former employer of Messrs Polori and
Stuurman has proven the requirements for an interim interdict insofar as it relies on
s 37(0)(1 )(b) of the Pension Funds Act 24 of 1956.
[1 O] Section 37(0)(1 )(b), relied upon by the applicant, reads as follows:
'(1) A registered fund may-
(a)
(b) deduct any amount due by a member to the member's employer on the date of retirement,
the date on which the member ceases to be a member of the fund or the date on which the
member's employment with a participating employer in a retirement fund is terminated in
accordance with the Income Tax Act and the Tax Administration Act, 2011 (Act 28 of 2011), in
respect of compensation, including any legal costs recoverable from the member in a matter
contemplated in subparagraph (ii), 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-
(i)
(ii) judgment has been obtained against the member in any court, including ·a magistrate's
court, and includes a compensation order granted in terms of section 300 of the Criminal
Procedure Act, 1977 (Act 51 of 1977), from any benefit payable in respect of the member or a
beneficiary in terms of the rules of the fund, and pay that amount to the employer concerned;
(i) the member has in writing admitted liability to the employer; or
(ii) judgment has been obtained against the member in any court, including a magistrate's court,
and includes a compensation order granted in terms of section 300 of the Criminal Procedure Act,
1977 (Act 51 of 1977),
from any benefit payable in respect of the member or a beneficiary in terms of the rules of the
fund, and pay that amount to the employer concerned; ... '
[11] It should immediately be pointed out that Messrs Polori and Stuurman have not
admitted liability in writing towards the. applicant and no judgment has been obtained
admitted liability in writing towards the. applicant and no judgment has been obtained
against them in a court of law. That does not mean that the applicant is without recourse.
The Supreme Court of Appeal has authoritatively stated in Highveld Steel and Vanadium
Corporation Ltd v Oosthuizen1 (Highveld Slee~ that the wording of s 37(0)(1 )(b) would
1 Highve/d Steel and Vanadium Corporation Ltd v Oosthuizen [2008] ZASCA 164; 2009 (4) SA 1 (SCA);
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render an employer's protection meaningless. Therefore, to give effect to the intention of
the legislature, the wording must be interpreted purposively to include the power of the
pension fund to withhold payment of a member's pension benefits pending determination
or acknowledgement of the member's liability. Consequently, the court held that the Fund
in that case had a discretion to withhold payment of the respondent's pension benefit in
the circumstances and that 'such discretion was properly exercised in view of the glaring
absence of any serious challenge to the appellant's detailed allegations of dishonesty
against the respondent. '2
[12] I accept that the High Court has the power to interdict a pension fund to pay out
pension benefits of its members pending institution and finalisation of an action by an
employer to claim damages from the former employee and member of the pension fund.
Therefore, it is appropriate to consider whether the applicant has proven the four
requisites for an interim interdict in casu.
Requirements for an interim interdict: an evaluation of the evidence and submissions
[13] Having accepted that the applicant has the necessary locus standi to apply for an
interim interdict in the circumstances, the applicant has to satisfy the Court in respect of
the fol.lowing four requirements:
a. a prima facie right;
b. a reasonable apprehension of irreparable harm if the interim relief is not granted
and the ultimate relief is eventually granted;
c. balance of convenience in favour of the granting of the interim interdict; and
d. the absence of any other satisfactory remedy.
[14] The different requirements should not be considered separately, or in isolation, but
in conjunction with one another in order for the court to exercise its discretion in favour of
the grant of interim relief.3 The stronger the prospect of success, the less need there is
for the balance of convenience to be in favour of the applicant and vice versa. The prima
for the balance of convenience to be in favour of the applicant and vice versa. The prima
facie right needs to be established upon a balance of probabilities. Much has been said
in numerous judgments as to the phraseology used to describe the first requirement. I am
[2009] 2 All SA 225 (SCA); (2009) 30 ILJ 1533 (SCA).
2 Ibid para 19 read with para 20.
3 City of Tshwane Metropolitan Municipality v Afriforum and Another[2016] ZACC 19; 2016 (9) BCLR 1133
(CC); 2016 (6) SA 279 (CC) paras 49-76.
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satisfied that it is trite: the right in order to obtain an interim interdict should be 'prima facie
established though open to some doubt'.
A prima facie right
[15] I deem it necessary to briefly deal with the factual versions provided by the parties.
Messrs Polori and Stuurman were arrested in September 2021 under Park Road Cas
number 695/02/2016. They were granted bail. The initial number of accused persons and
the charges put to them differ from the criminal proceedings eventually instituted in the
High Court. In this Court, Mr Polori is accused 2 and Mr Stuurman accused 24. There are
25 accused persons. A total number of 322 counts has been put to the accused, although
not all counts are applicable to all the accused. Some of the accused persons initially
charged have pleaded guilty and have been sentenced.
[16] Lieutenant Colonel S Khoele (Col Khoele) deposed to an affidavit on 21 September
2021 in support of an application for warrants of arrest in respect of Messrs Polori and
Stuurman, as well as other suspects. He made serious allegations in respect of both. Four
entities, Tsa Rona Consultancy, Land Breeze of which Mr Mavusa Kwababa is a director,
Amakholwa Consultancy and Training and Zen Communications were by far the biggest
receivers of alleged unlawful payments. Col Khoele stated in paragraph 10.1.1 of his
affidavit that Mr Stuurman 'captured, verified and confirmed the veracity of transactions'
whilst knowing that 'no services were rendered to the department'. He was also involved,
so Col Khoele alleged, in the creation of invoices in support of fraudulent claims and
'received payments from one of the entities that received the fraudulent payments ... ' It
turned out later that he was probably referring to Mr Polori. I shall return to this aspect in
a moment when I deal specifically with the applicant's relief against Mr Polori. Nobody
has until now alleged, ex facie the record, any collusion with Mr Stuurman and/or that
they had received payments generated by him.
they had received payments generated by him.
[17] On 7 November 2023 Mr Stuurman gave notice of his intention to resign on 31
January 2024. The applicant tried to make out a case that he did so to avoid disciplinary
action. It is alleged that there was an attempt to serve the charge sheet pertaining to a
disciplinary hearing on Mr Stuurman on 1 December 2023, but that he refused to accept
it. I am satisfied that the applicant has failed to put admissible evidence before the Court
in this regard. The version relied upon is not only hearsay, but the document relied upon
8
is contradicting the applicant's hearsay version. Firstly, it is alleged in the charge sheet
that Mr Stuurman had concluded two illegal transactions with Mr Kwababa of Land Breeze
Trading 623 in January 2015, but when the amounts are considered, these transactions
relate to Mr Kwababa's guilty plea wherein he incriminated Mr Polori as will be shown
herein later.
[18] Secondly, the version that Mr Stuurman refused to sign for receipt of the charge
sheet is rejected. The persons who signed the document - apparently to be called as
eyewitnesses if required - stated under their signatures that Mr Stuurman 'understands
the contents of the letter [not the charge sheet] handed to him.' Yet, another person,
apparently one Matshae, recorded under his signature that the recipient 'refused to
acknowledge receipt of the charge sheet.' This contradiction is not explained by anybody.
Thirdly, Messrs Polori and Stuurman are apparently charged with the same alleged
misconduct, but the applicant did not try to hold one disciplinary hearing against both. In
fact, Mr Stuurman was identified as a witness for the employer and called upon to testify
in Mr Polori's disciplinary hearing. I refer to a letter addressed to Mr Stuurman dated 25
January 2024. The applicant stated therein that Mr Stuurman deposed to an affidavit
before Col Khoele regarding 'the same charges that are brought against Mr Polori.'
[19] If Mr Stuurman was to be charged as the applicant wants me to believe, it is
strange that he was requested to make himself available as a witness in the intended
disciplinary hearing of Mr Polori. Mr Stuurman would have testified in that hearing, but on
the date of the hearing, Mr Polori could not attend due to death in his family. The hearing
had to be postponed. On the adjourned date, Mr Polori resigned with immediate effect
and therefore, no disciplinary hearing proceeded against him.
[20] I have no reason not to accept the version of Mr Stuurman on a balance of
[20] I have no reason not to accept the version of Mr Stuurman on a balance of
probabilities, ie that he was neither informed of the alleged disciplinary action against him,
nor was there an attempt to serve the charge sheet on him. It is apparent, unlike the case
of Mr Polori, that Mr Stuurman's immediate head did not make any reference on his
resignation letter that he was subject to a disciplinary hearing or investigation. Unlike
several other employees, including Mr Polori, Mr Stuurman was not placed on
precautionary suspension at any stage at all.
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[21] Although Mr Stuurman is still an accused in the criminal trial pending in the High
Court, the National Director of Public Prosecutions (the NDPP) decided not to cite him as
a party in the proceedings to preserve property of several people instituted under case
number 1448/2025. Mr Polori was cited as first defendant and his brother, Mr T J Polori
(an allegation denied by Mr Polori) as ninth defendant. A certain Mrs Polori was cited as
first respondent. In total, nine defendants and four respondents were cited. On 27 March
2025, Mbhele AJP granted a preservation order against the defendants and respondents
in terms whereof their assets were attached. Mr Polori admitted the attachment of his
assets. In my view, the NDPP's litigation is a clear indication that, after many years of
investigations, she and her team decided that they did not have a prima facie case against
Mr Stuurman. There is no acceptable reason why Mr Stuurman was not joined as a party
in those proceedings, other than that the NDPP was satisfied that they would not succeed
against him.
[22] It is also important to reiterate that Mr Stuurman made a detailed statement as
mentioned above. He fully explained precisely what he did and on whose instructions he
operated. He denied any misconduct, but he pointed fingers to Mr Polori as his immediate
senior at a certain stage. Contrary to the applicant's case, Mr Stuurman states that he
was never employed in the finance section of the Department, but in the HR section
thereof. The applicant has now changed its version. It is indeed alleged in the summons
that Mr Stuurman was employed in the HR section and not in finance.
[23] I am satisfied that no prima facie case has been proven against Mr Stuurman.
When I deal with the other three requirements for an interim interdict, I will not deal with
Mr Stuurman's situation, save to mention the following. Even if I was inclined to accept
that the applicant has proven the first and even the second requirement for an interim
that the applicant has proven the first and even the second requirement for an interim
interdict, I would have been loath to accept that the balance of convenience favours the
applicant. In this regard I rely on what the Supreme Court of Appeal stated in paragraph
20 of Highveld Stee/4. Mr Stuurman is not a young man and he urgently needs access to
his pension benefits. He has been in the Department's employ for nearly 20 years. The
criminal case has been dragging on for years. The end is not nigh. Fairness and a
balancing of competing interests would tip the scale in his favour.
4 Fn 1 supra.
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[24] Mr Polori's case is on a different footing. A co-accused of Messrs Stuurman and
Polori has already pleaded guilty and has been sentenced. This is Mr Mavuso Kwababa,
mentioned earlier. He explained his relationship with Mr Polori in hiss 112(2) statement
in terms of the Criminal Procedure Act 51 of 1977, which was accepted by the
prosecution. The applicant relies on that version in this application. Mr Kwababa testified
that on 15 January 2015 the Department deposited an amount of R375 600 into his
account and on 3 February 2015 another amount of R328 650. In both instances Mr Polori
communicated with him and the parties arranged that cash be withdrawn from Mr
Kwababa's account which was handed over to Mr Polori. Mr Kwababa retained in his
account R79 600 in the first instance and R84 650 in the second instance as agreed with
Mr Polori. Mr Polori denies this version, stating that he does not know Mr Kwababa at all.
Although it is improbable that Mr Kwababa would falsely incriminate Mr Polori, I do not
have to make any finding in this regard, save to say that neither this person, nor anybody
else, has incriminated Mr Stuurman ex facie the admissible evidence presented to the
Court.
[25] Mr Polori's version why he did not participate in the disciplinary proceedings
instituted against him does not hold water. It is far-fetched. According to him, his legal
representative coerced him to resign, rather than to face the disciplinary hearing. His
version that his resignation 'was not a voluntary act' as he 'wanted to sit in [his] hearing'
is improbable, if not false. I am satisfied that the applicant has proven the first requirement
in respect of Mr Polori. In fact, a strong prima facie case has been made out against him.
Irreparable harm
[26] The second requirement for an interim interdict must now be considered. The test
in regard to irreparable harm is an objective one. 5 There can be no doubt that Mr Polori
in regard to irreparable harm is an objective one. 5 There can be no doubt that Mr Polori
is unemployed, that he is presently involved in a criminal trial in the High Court where he
is one of several accused relating to damages caused to the applicant due to alleged
criminal acts committed by the accused persons. He submitted during oral argument that
he is 50 years old, that both he and his wife are unemployed and that he needs his
pension fund proceeds for a living. He has no other income and only a few movable
assets. An order in his favour will obviously cause irreparable harm to the applicant who
5 National Council of Societies for the Prevention of Cruelty to Animals v Openshaw [2008] ZASCA 78;
[2008] 4 All SA 225 (SCA); 2008 (5) SA 339 (SCA) para 21.
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will not be able to execute successfully on receipt of any judgment in its favour. The civil
case will not be heard before 2027 and may then be postponed if the criminal case is still
pending by then. Logic dictates that not much of the pension benefits, if anything at all,
will be available-at such stage. The second requirement has been proven.
Balance of convenience
[27] The balance of convenience must be considered by weighing the prejudice to the
applicant if the interlocutory interdict is refused, against the prejudice to Mr Polori if it is
granted. I accept that Mr Polori will suffer financially if the interdict is granted, but contrary
thereto, the applicant's entitlement to relief cannot be disregarded. Relief is sought on
behalf of a provincial department and in the interest of the public purse. In any event, the
stronger the prospects of success, the less need there is to consider whether the balance
of convenience favours the applicant. As indicated, I am satisfied that the applicant has
made out a strong prima facie case against Mr Polori.
No other satisfactory remedy
[28] It is not necessary to say more about the absence of another adequate satisfactory
remedy. An action has already been instituted to claim relieffrom Mr Polori. The summons
has been served recently. I do not know whether the two defendants in that action have
filed their pleas. As mentioned, at best for the parties, this civil action will not be heard in
the High Court before 2027. There are no other means that could have been utilised by
the applicant to prevent payment of Mr Polori's pension fund benefits to him. I may add
that the third and fourth respondents have filed a notice to abide the judgment of this
Court, but in my view and in the absence of any indication that these two respondents
would refrain from paying the pension benefits to Mr Polori, the applicant was fully entitled
to launch these proceedings as the only adequate satisfactory remedy available.
Conclusion
to launch these proceedings as the only adequate satisfactory remedy available.
Conclusion
[29] I conclude that no case has been made out against Mr Stuurman, but the applicant
has proven all four requirements for an interim interdict in respect of Mr Polori. Therefore,
the applicant is entitled to the relief claimed against him. As the successful party, the
applicant is also entitled to the costs of the application against Mr Polori. The application
against Mr Stuurman stands to be dismissed. As the successful party, he is entitled to the
payment of his costs. In both cases there is no reason why the court should deviate from
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the general principle that costs should follow the cause.
[30] The wasted costs of 12 June 2025 shall be considered. Mr Polori caused the
postponement on 12 June 2025. He should accept responsibility for payment of such
costs to the applicant. Mr Stuurman cannot blame the applicant for those wasted costs.
He is entitled to the costs of the application, excluding such wasted costs occasioned by
Mr Polori.
Order
(31] The following orders are issued:
1 The third and fourth respondents are interdicted from paying out the entire pension
benefit interest of the first respondent, Motsumi Krisjan Polori, pending finalisation of the
action instituted by the applicant under case number 4240/2025.
2 The first respondent shall pay the applicant's costs of the application pertaining to
him, including the wasted costs of 12 June 2025, inclusive of the fees of counsel on scale
A.
3 The applicant's application against the second respondent, Phoko Francis
Stuurman, is dismissed with costs, excluding the wasted costs occasioned by the
postponement of 12 June 2025.
J P DAFFUE
JUDGE OF THE HIGH COURT
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Appearances
For the applicant: EB Yawa
Instructed by: State Attorney, Bloemfontein.
For the first respondent: In person
For the second respondent: M Litheko
Instructed by: Litheko Motsoeneng Inc, Bloemfontein.