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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 2025-180517
In the matter between:
THE SPAR GROUP LIMITED APPLICANT
and
THE OLD MUTUAL SUPERFUND
PROVIDENT FUND FIRST RESPONDENT
OLD MUTUAL LIFE
ASSURANCE COMPANY SECOND RESPONDENT
MORRIS TAWANA FUSIRANTUBA THIRD RESPONDENT
Neutral citation: Spar Group Limited v Old Mutual Superfund Provident Fund
and Others (Case no 2025-180517) [2025] ZAWCHC ___
(3 December 2025)
Coram: Davis AJ
Heard: 6 October 2025
Order granted: 10 October 2025
Reasons given: 3 December 2025
ORDER
1 The First Respondent, the Old Mutual Superfund Provident Fund, is
interdicted and restrained from making any payments, whether by way of a
lump sum, monthly annuity, or otherwise, to the Third Respondent, Mr
Morris Tawana Fusirantuba (member reference number A[...]), from the
First Respondent’s fund (scheme reference R[...]), or any associated benefits
or entitlement, pending the final determination of the action proceedings
instituted by the Applicant in the Gauteng High Court under case number
095726/2025.
2 The Third Respondent shall pay the Applicant’s costs occasioned by his
opposition to this application, on the party and party scale, such costs to
include the cost of two counsel, where employed, with the costs of senior
counsel being payable on Scale C an d the costs of junior counsel being
payable on Scale B.
REASONS
DAVIS AJ:
[1] On 10 October 2025, while presiding as the duty judge for urgent
applications, I granted an order for an interdict pendente lite. These are my
reasons for doing so.
[2] The applicant (‘ Spar’) is the former employer of the third respondent
(‘Fusirantuba’), who was dismissed from his employment on 2 June 2025
due to various findings of misconduct and dishonesty.
[3] The first respondent is a provident fund registered in terms of the Pension
Funds Act 24 of 1956. The Second Respondent is an approved pension and
provident funds administrator and authorised financial services provider ,
which administers the first respondent. In this judgment I shall refer to the
first and second respondents collectively as ‘the Fund’.
[4] Spar maintains a provident fund with and through the first respondent in
favour of its employees. Through his employment with Spar, Fu sirantuba
was a member of the first respondent . As at 10 June 2025, the value of
Fusirantuba’s provident benefits was R 6 577 073,18.
[5] Pursuant to Fusirantuba’s dismissal, Spar on 24 June 2025 instituted action
against Fusirantuba in the Gauteng Division, Johannesburg under case
number 2025-085726, claiming payment of the amount of R 8 208 430.92 as
damages allegedly suffered as a result of various breaches of Fusirantuba’s
contract of employment and/or fiduciary duties, and gross misconduct on his
part (‘the action’).
[6] On 2 October 2025, Spar launched an urgent application in this court to
interdict the Fund from releasing and paying out Fusirantuba’s provident
fund benefits to him pending the final determination of the action.
[7] The application was founded on the provisions of section 37D(1)(b) of the
Pension Funds Act 24 of 1956 (‘ the Pension Act ’), which provides as
follows:
‘37D Fund may make certain deductions from pension benefits
(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) 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;
(bA) permit a member to take a savings withdrawal benefit where there is a
judgment contemplated in paragraph (b) (ii) or a written admission of
liability in favour of the employer that has not yet been executed: Provided
that the withdrawal will not result in there be ing insufficient remaining funds
to repay the loan or guarantee or to comply with the judgment;
(bB) suspend a savings withdrawal benefit where the employer has not obtained a
judgment contemplated in paragraph (b) (ii), and the withdrawal will result in
there being insufficient remaining value to comply with the pending order, if
granted, for a period of 12 months pending the judgment by any court
including a magistrate's court.’ [Emphasis added]
The relevant factual background
The disciplinary enquiry
[8] Fusirantuba was employed by Spar in a managerial position as a “Category
Buyer – Perishables”. He was responsible for purchasing goods for Spar,
establishing sources of supply with competitive pri cing, ensuring that Spar
did not overpay for goods and services. In terms of his employment contract,
he was under a duty to act in good faith in the best interests of Spar at all
times, to avoid conflicts of interest, to refrain from receiving gifts or benefits
by virtue of his employment, and to disclose to Spar any interest in any
contracts with Spar.
[9] Spar’s complaint against Fusirantuba, which led to his dismissal, was that he
had utilised a ‘middleman’ entity, namely Gift Barrel CC (‘Gift Barrel’) as a
supplier of products for Spar instead of purchasing the products directly
from the primary supplier, namely Otima Plastics (Pty) Ltd (‘ Otima’) – this
in circumstances where Fusirantuba was aware of the existence of Otima.
[10] A disciplinary enquiry was held on 2 6 May 2025. The minutes of the
enquiry (which have not been challenged and can therefore be accepted as
correct) show that evidence was led on behalf of Spar that: Fusirantuba
arranged for Otima to supply Gift Barrel and for Gift Barrel to supply Spar
at a mark -up of 25% on average; in January 2016 Fusirantuba received an
amount of R 43 619.29 from Gift Barrel, which wa s not
disclosed to Spar; Fusirantuba arranged for his son to be employed by Gift
Barrel, also not disclosed to Spar; based on the average mark -up of 25%,
Fusirantuba caused Spar to pay R 8 208 430.92 more for goods
purchased from Gift Barre l than it would have paid had it purchased the
same goods directly from Otima.
[11] The minutes of the disciplinary enquiry show that Fusirantuba did not
challenge or cross -examine any of the witnesses who testified on behalf of
Spar. Indeed, the minutes show that:
a) Fusirantuba admitted that he had failed to disclose that his son was
working for Gift Barrel (part -time, he claimed) and that his failure to
disclose was a breach of the Spar code of ethics. He said, ‘I can admit
and see my fault here.’
b) With regard to the use of Gift Barrel as a middleman, Fusirantuba
stated, ‘I am aware that the best thing I could have done was to list
Otima directly. This was not for my personal benefit. It was to see if
he could get work as he was at home for over th ree years and [I]
wanted to keep him busy. When Gift Barrel asked if I know someone
and I volunteered my son.’
c) Fusirantuba stated further that, ‘I know that mistakes have been made
and that I have breached the policy. It was for the sake of my son. I
wanted to avoid him sitting at home and doing the wrong things. It
was a risk I took as a parent. I am not making excuses. I am deeply
sorry. This is why I did not make any effort to defend myself or gather
witnesses and I deeply regret my actions. It will be within company
right to take action.’
[12] To my mind t hese statements amount to admissions on the part of
Fusirantuba that he breached his fiduciary duty by placing his own familial
interests above the best interests of Spar.
[13] While Fusirantuba insisted that he did not benefit personally from using Gift
Barrel as a middleman, his evidence under cross -examination leaves one in
doubt in this regard. He was not able to explain why the salary which Gift
Barrel allegedly paid to his son for part-time work as a driver exceeded the
salary which Fusirantuba himse lf was paid for his employment in a
managerial position at Spar.
[14] Fusirantuba did not challenge the evidence presented by Spar that Spar had
paid R 8 208 430.92 more for goods purchased from Gift Barrel during 2020
to 2024, than it would have paid if it purchased the goods directly from
Otima.
[15] The chairperson of the disciplinary enquiry found Fusirantuba guilty on all
four charges of misconduct, namely: 1) breach of the Spar code of Ethics
due to a failure to declare a conflict of interest in employing a middleman
with whom his child was employed; 2) breach of the Spar gift policy in that
he and/or his family members accepted cash from a Spar supplier; 3) abuse
of position and/or acting dishonestly in that he listed Gift Barrel as a supplier
for personal benefit, resulting in a loss of R 8 208 430.92 to Spar; 4)
dishonesty in that Fusirantuba gave false statements during the investigation
of his relationship with Gift Barrel.
[16] On the strength of the outcome of the displinary proceedings, Spar dismissed
Fusirantuba on 2 June 2025. Fusirantuba did not appeal the disciplinary
hearing outcome. Nor did he refer the matter to the Commission for
Conciliation, Mediation and Arbitration (‘CCMA’).
[17] Spar then instituted the action against Fusir antuba for damages, as
mentioned above.
Spar’s engagement with the Fund
[18] On 2 June 2025, following the dismissal of Fusirantuba, Spar ’s attorneys
(‘CDH’) addressed correspondence to the Fund advising of Fusirantuba’ s
misconduct and dismissal, and requesting that Fusirantuba’s pension benefits
be withheld in terms of s 37D(1)(b) of the Pension Act. On 10 June 2025, at
the request of the Fund, CDH submitted a duly completed form requesting
the withholding of Fusirantuba’s benefits.
[19] On 19 June 2025, CDH addressed further correspondence to the Fund
advising that Spar would imminently be instituting action against
Fusirantuba to recover damages in excess of R 8 million.
[20] The Fund did not respond to the communications of 10 and 24 June 2025.
[21] On 24 June 2025, CDH again wrote to the Fund requesting that
Fusirantuba’s benefits be withheld. On the same day, the Fund was furnished
with a copy of the action as well as all d ocuments relating to Fusirantuba’s
dismissal, including the minutes of the disciplinary enquiry.
[22] On 30 June 2025, the Fund replied to CDH requesting that it be provided
with certain documents within 30 Days, failing which Fusirantuba’s benefits
would be paid out to him. In the letter , the Fund communicated its
requirement that Spar indemnify the Fund or Old Mutual ‘ in respect of any
legal proceedings or payout of the benefits ’, failing which it reserved the
right immediately to pay out the benefits to Fusirantuba.
[23] It bears emphasis that the information and documentation requested by the
Fund in its letter of 30 June 2025 had already been furnished to it on 24 June
2025. It is clear that the documents furnished on 24 June 2025 had not been
considered by the fund when it requested the self -same information on 30
June 2025. One gets the distinct impression that Spar’s withholding request
was being met with bureaucratic filibustering rather than responsive
engagement.
[24] This notwithstanding , on 25 July 2025, CDH wrote to the Fund and
furnished the information which the Fund had requested on 30 June 2025 ,
which had already been provided to it . CDH again requested the Fund to
confirm that Fusirantuba’s benefits would be withheld.
[25] On 31 J uly 2025, the Fund responded to CDH and yet again requested
evidence of Fusirantuba’s misconduct (over and above what had already
been furnished by way of the action and documents), as well as a breakdown
of how the damages claimed by Spar were calculated (despite the fact that
the basis for the quantum claimed was clearly pleaded in the particulars of
claim).
[26] Worse still, the Fund went so far as to require that Spar’s particulars of claim
in the action be amended. The Fund asserted that, ‘the current version [of
the particulars of claim] refers to a breach of policy and gross misconduct.
However, in terms of section 37D(1)(b) of the Pension Funds Act, a benefit
may only be withheld where the member has committed offences involving
theft, fraud, disho nesty, or misconduct with an element of dishonesty. The
current POC does not make reference to any of these specified grounds.
Until such time as the POC is appropriately amended and the evidential
documentation is provided, the Fund will not be in a posit ion to process the
withholding request.’
[27] In my view, the Fund erred in its approach. It is clear on any intelligent
reading of Spar’s particulars of claim that the allegations against Fusirantuba
regarding the use of a middleman to supply goods to Spar at a 25% mark-up,
the receipt by Fusirantuba of monies from Gift Barrel and the employment
of Fusirantuba’s son by Gift Barrel without disclosure thereof to Spar, are
allegations involving dishonesty. The particulars of claim cannot reasonably
be interp reted otherwise. The essential nature of the allegations against
Fusirantuba will not change merely because an amendment is introduced to
state the obvious – which is that the allegations involve dishonest conduct,
as contemplated in section 37D(1)(b) of the Pension Funds Act.
[28] In my view, the Fund failed properly to apply it mind to the particular of
claim. It adopted a blinkered, box -ticking approach instead of a sensible,
holistic interpretation of the particulars of claim, which, properly construe d,
leave one in no doubt that the allegations levelled against Fusirantuba
involve dishonesty and/or misconduct with an element of dishonesty.
[29] Returning to the sequence of events, CDH had in the interim briefed a
forensic accountant to prepare a detailed calculation of the loss suffered by
Spar as a result of Fusirantuba’s misconduct. On 14 August 2025, CDH
notified the Fund that CDH was in the p rocess of amending Spar’s
particulars of claim, and that a forensic accountant had been briefed to
quantify Spar’s claim with the high degree of particularity required by the
Fund. CDH also provided the Fund with another copy of the minutes of the
disciplinary enquiry, and highlighted aspects of the evidence which provided
clear proof of dishonest conduct on the part of Fusirantuba. CDH again
requested the Fund to confirm that Fusirantuba’s benefits would continue to
be withheld, as requested.
[30] The contents of CDH’s letter of 14 August 2025 were evidently ignored by
the Fund, for o n 19 September 2025, the Fund wrote to CDH advising that,
unless the amended particular of claim were provided to it by close of
business on 25 September 2025 , the Fund would be left with no alternative’
but to pay the full provident fund benefit to Fusirantuba.
[31] The Fund’s response is startling; it evinces mindless intransigence which can
only be explained by a failure to have proper regard to, or to understand the
import of, the information furnished to the Fund by CDH in relation to the
requirements of s37(D)(1)(b) of the Pension Act and the Fund ’s own rules
governing the exercise of its discretion to withhold benefits, which are based
on s 37(D)(1)(b). Having been gui lty of overreach in the first place by
insisting on an amendment of Spar’s particulars of claim, and having been
told that time was required to quantify Spar’s claim with the particularity
required by the Fund (in which regard the Fund also overstepped), i t was
patently unreasonable for the Fund to set a deadline of less than one week
for the amendment to be delivered.
[32] On 22 September 2025, CDH responded to the Fund pointing out that the
amended particulars of claim could not be delivered by 25 Sept ember 2025
because: the forensic accounting was still busy preparing his report; the
detailed quantum analysis required by the Fund, which would in the ordinary
course be prepared by the expert as part of the trial preparation, was a
significant exercise requiring an analysis of over 700 invoices raised over 10
(ten) years; Otima had not co-operated in producing the invoices required by
Spar for this exercise, so that a subpoena had had to be issued to obtain the
documents from Otima.
[33] In these circumstances, CDH requested an undertaking from the Fund, based
on the ample information and documentation already furnished to it, that it
would not release Fusirantuba’s provident fund benefits at least until the
forensic accountant had completed his quan tum schedule and workings. The
Fund was warned that, should it not provide the requested undertaking by 23
September 2025, Spar would seek urgent interdictory relief to be heard in
the week of 6 October 2025.
[34] The Fund did not revert by 23 September 2025. Instead, on 30 September
2025, the Fund wrote to CDH advising that it had received feedback from its
legal team and that:
‘The Fund regrets to inform you that it is no longer able to withhold the member’s
withdrawal benefit, as the continued delay is prejudicial to the member. The timeline for
the submission of the required documents has long passed, and it appears that there is no
certainty as to when the documents are to be recovered by the Fund.
Accordingly, the Fund will have to cancel the lien within 5 working days, unless a valid
interdict is received within this period. In the absence of such an interdict, the Fund will
be obliged to release the benefit to the member.’
[35] Thus, the deadline imposed by the Fund for Spar to obtain an interdict was
7 October 2025, failing which the benefits would be paid out to Fusirantuba.
The ultimatum presented by the Fund on 30 September 2025 precipitated the
launching of this application on 2 October 2025.
[36] It regrettably has to be said that the conduct of the Fund leaves much to be
desired. It was required, in terms of Rule 9.2(2) of its own rules,1 to consider
1 Rule 9.2(2) of the Master Rules of the Fund reads as follows:
whether or not Spar had established a prima facie case against Fusirantuba,
and it had to be satisfied that Spar was not responsible for any delay in the
prosecution of the action. The conclusions reached by the Fund in these
regards are simply wr ong. As already mentioned, the insistence that Spar
amend its particulars of claim betrayed a fundamental lack of understanding
of the import of the allegations in the particulars of claim . And the
conclusion that Spar was guilty of delaying the matter was nonsensical in
circumstances where it was the Fund which had insisted on an amendment to
Spar’s particulars of claim, and Spar had explained why this would take
some time - given the Fund’s unreasonable insistence on a level of precision
in the quantification of Spar’s claim at an early stage in the action which is
entirely out of kilter with ordinary trial practice. In short, the Fund failed to
appreciate the proper nature of its enquiry. It impermissibly elevated the
degree of proof required to a level way beyond the threshold of a prima facie
right and prima facie proof of the quantum.
[37] As a consequence of the Fund’s flawed approach, Spar has had to incur costs
in seeking an interim interdict application, which could have been avoided
had the Fund exercised its discretion properly. The Fund is not exposed to
‘The fund may also reasonably wit hhold payment of a portion or the whole of any benefit payable in
respect of a Member or a Beneficiary provided that:
(a) The amount of the benefit so withheld does not exceed the amount that may be so deducted in
terms of the Act;
(b) The fund is satisfied that the Participating Employer has established a prima facie case against
the Member concerned;
(c) The Fund is satisfied that the Participating Employer is not at any stage responsible for any undue
delay in the prosecution of the proceedings;
(d) Once the proceedings have been finally determined by a competent court of law, or settled or
withdrawn, any benefit amount to which the Member or Beneficiary is entitled, and which was
withheld, is paid immediately.’
costs because it has not opposed the application, and Spar only sought costs
in the event that the application was opposed. The Fund avoids
accountability for costs by virtue of the indemnity which it insisted that Spar
sign as a precondition for withholding payment of Fusirantuba’s benefit. (It
is open to doubt whether the Fund a cted lawfully in so doing, but that is a
question for another day.)
[38] Had Spar sought the costs of the application in its notice of motion, I would
have been inclined to grant a costs order against the Fund. In the absence of
such a prayer, I cannot. That is unfortunate, for , if the action succeeds, the
costs which the Fund caused to be incurred will ultimately be borne by
Fusirantuba (or by Spar, if there are insufficient funds to meet its claim and
costs – as may well be the case).
The issues for determination
[39] The Fund did not oppose the application for an interim interdict. Fusirantuba
opposed the relief sought on the grounds that:
a) the matter was not urgent;
b) Spar had not met the requirements for the granting of an interim
interdict.
Urgency
[40] Ms Tait, who appeared on behalf of Fusirantuba, argued that the matter was
not urgent as Spar had threatened to launch interdict proceedings if the Fund
failed to provide the necessary undertaking by 23 September 2025, and that
Spar should not have waited until the Fund responded on 30 September 2025
before taking action.
[41] I do not consider it unreasonable for Spar to wait beyond the deadline of 23
September 2025, given the Fund’s history of delayed responses to
correspondence. CDH put up compelling reasons in its let ter of 22
September 2025 for why the Fund’s insistence on receiving amended
particular of claim by 25 September 2025 was unreasonable. It was not
unreasonable to cherish the hope that common sense would prevail and that
the Fund would come around and furnish the requisite undertaking.
[42] I therefore do not regard Spar’s failure to spring into action on 23 September
2025 as a culpable delay which renders the urgency of the application self -
created. What matter is that, wh en all hope of a sensible respons e from the
Fund was dashed on 30 September 2025, Spar took immediate action to
launch this application.
[43] Given the deadline of 7 October 2025 imposed by the Fund in its letter of 30
September 2025, there can be no doubt that the matter was urgent. Th e fact
that Fusirantuba was afforded very little time to respond is an unfortunate
by-product of the unreasonable conduct of the Fund.
[44] For these reasons, I dismissed the objection based on urgency and
entertained the matter as one of urgency on 6 Oct ober 2025, in the exercise
of my discretion in terms of Rule 6(12). I granted a ‘holding order’
preserving the status quo until 10 October 2025, in order to give me further
time to consider the matter.
The requirements for an interim interdict pending a claim based on s
37D(1)(b)
[45] The requirements for an interim interdict are trite. An applicant is required to
show:
a) a right which, though prima facie established, may be open to some
doubt;
b) a well-grounded apprehension of irreparable harm;
c) a balance of convenience in favour of granting the interim relief;
d) the absence of an alternative remedy.
[46] A number of principles are particularly germane to applications for an
interim interdict pending the determination of a claim based on s 37D(1)(b)
of the Pension Act.
[47] Firstly, there are two well-known exceptions to the requirements referred to
above in applications for interim relief pending vindicatory and ‘quasi-
vindicatory’ claims, (a quasi -vindicatory claim being one in which the
plaintiff claims delivery of specific property under some legal right to obtain
possession). The first is that it is not necessary for the applicant to allege
irreparable harm, as there is a rebuttable pre sumption that the harm is
irreparable. The second is that an applicant need not show that it has no
other satisfactory remedy. See Fedsure Life Assurance Co Ltd v Worldwide
African Investment Holdings (Pty) Ltd 2003 (3) 268 (W) paras 27 – 28 and
cases cited there.
[48] Secondly, i t is well -established that money may be interdicted pending a
vindicatory or quasi -vindicatory claim for that money , provided that the
money to be interdicted is identifiable with or earmarked as a particular fund
to which the plaintiff claims to be entitled (Fedsure Life Assurance Co Ltd v
Worldwide African Investment Holdings (Pty) Ltd (supra) paras 29 – 30 and
cases there cited).
[49] Section 37D(1)(b) of the Pension Act establishes a claim in favour of an
employer to the pension fund benefits of an employee in the defined
circumstances. Applying the principles referred to above, it seems to me that
the claim in question is quasi-vindicatory in nature. Moreover, the money in
the pension fund is capable of being interdicted, as it is identifiable with or
earmarked as a fund to which the employer claims to be entitled. (See
Hansen + Genwest (Pty) Ltd v Corporate Selection Umbrella Retirement
Fund No 2 (2023-002990) [2023] ZAGPJHC 100 (6 February 2023) paras
18 and 19.)
[50] I therefore consider that, where an applicant for an interim interdict relies on
a statutory claim in terms of s 37D(1)(b) of the Pension Act, all that is
required to be alleged and proved for purposes of securing an interim
interdict is that
the applicant has a prima facie right and that the balance of convenience
favours the granting of the relief. It is not necessary to allege irreparable
harm, or to show the absence of an alternative remedy.
[51] I stress these requirements, for Ms Tait contended that, in addition to the
usual requirements for an interim interdict, Spar was also required to show
that the Fund had exercised its discretion unreasonably in refusing to
withhold Fusirantuba’s provident fund benefits. In this regard, re liance was
placed on the dictum of Moultrie AJ in Hansen + Genwest (supra) at para
36, where the learned judge mentioned a third requirement for relief in cases
of this nature, namely:
‘that the applicant has requested the pension fund to exercise its dis cretion to
withhold the pension benefits but the pension fund has unreasonably refused to
grant such a request (with such finding of unreasonableness taking into account
any specific requirements laid down by the rules of the pension fund regarding
the cir cumstances under which such a discretion may be exercised and the
requirements of procedural fairness).’
[52] It seems to me that this statement calls for qualification and clarification.
[53] It is so that a pension fund has a discretion, based on s 37D(1)(b) of the Act ,
to withhold payment of a member’s pension benefits pending the
determination of a member’s liability. That follows from the decision in
Highveld Steel and Vanadium Corporation Ltd v Oosthuizen 2009 (4) SA 1
(SCA) in which it was held that, although s 37D(1)(b) of the Pension Act
contemplates a written admission of liability or a judgment or compensation
order against the member, the section must be inte rpreted purposively to
include the power to withhold payment of a member’s pension benefits
pending the determination or acknowledgment of the member’s liability.
[54] In Highveld Steel (supra), at paragraph 20, Maya JA (as she then was), stated
that:
‘Considering the potential prejudice to an employee who may urgently
need access to his pension benefits and who is in due course found
innocent, it is necessary that pension funds exercise their discretion
with care and in the process balance the competi ng interests with due
regard to the strength of the employer’s claim.’
[55] The balancing exercise referred to by Maya JA is essentially the same as the
enquiry into the balance of convenience which a court is required to
undertake in deciding whether or not to grant an interim interdict.
[56] It is not surprising, therefore, that Rule 9.2(2) of the Master Rules of the
fund (supra n1) mirror s the requirements for an interim interdict. Rule
9.2(2)(b) requires the Fund to be satisfied that the employer has established a
prima facie case against the member. Rule 9.2(2)(c) requires the fund to be
satisfied that the employer is not responsible for any undue delay in
prosecuting the proceedings, a consideration which relates to the balance of
convenience and the exercise of the discretion whether or not to grant the
relief.
[57] But the fact that the rules of a pension fund may call upon it to perform an
enquiry similar to that undertaken by a court in regard to an interim interdict
does not mean that the court’s jurisdiction is ousted , or that it has to defer to
the decision of the fund, or that it may only interfere with the fund’s exercise
of its discretion on limited grounds.
[58] There is nothing in the wording of s 37D(1)(b) of the Pension Act which
precludes an employer from seeking an interim interdict to preserve the
pension benefit pendi ng the determination of the member’s liability under
the section (Voltex (Pty) Ltd v Bidvest South Africa Retirement Fund and
Others [2025] ZAGPPHC 368 (29 April 2025) para 14). Had the legislature
intended to preclude resort to the common law remedy of a n interim
interdict, it would have said so expressly (see Casserley v Stubbs 1916 TPD
310 at 312). Moreover, applying the purposive construction of s 37D(1)(b)
adopted in Highveld Steel, it seems to me that the availability of the remedy
of an interim interdict supports the attainment of the object of s 37D(1)(b) of
the Pension Act, which is to protect the employer’s right to recover monies
lost due to theft, dishonesty, fraud or misconduct by an employee (see
Highveld Steel (supra) para 16).
[59] An a pplication for an interim interdict pending a claim under s 37D(1)(b)
should not be confused with a review of the pension fund’s exercise of its
discretion. A court seized with such an interdict application is entitled to
substitute its decision for that of the pension fund on the grounds that the
pension fund was wrong. It is for the court, and the court alone, to determine
whether or not an applicant employer has made out a prima facie case for a
claim under the section , and whether or not the balance of convenience
favours the granting of the interdict to withhold payment of the benefit.
Simply put, the court’s judgment trumps that of a pension fund.
[60] I would add that it is not desirable, in my view, to have an inflexible rule
that an employer should always first approach a pension fund to withhold a
member’s benefit before approaching the court for interdictory relief based
on s 37D(1)(b) . There may be urgent circumstances which do not allow for
engagement with the pension fund before seeking relief.
[61] To sum up, then, I conclude that an employer seeking an interim interdict
pending determination of a claim under s 37D(1)(b) of the Pension Act is not
required to show that the fund has acted unreasonably or irrationally in
refusing to withhold the employee’s pension benefit. The employer is only
required to show:
a) the existence of a prima facie right to recover an amount which
exceeds the amount of the emp loyee’s pension fund benefits sought
to be interdicted;
b) a balance of convenience favouring the granting of the relief.
[62] If the court agrees with the pension fund’ s assessment, it will refuse the
interdict. If the court is of the view that the pension fund was wrong in the
requirements for an interim interdict have been met, it will grant the
interdict.
A prima facie right
[63] Spar’s prima facie right is founded on the statutory entitlement under
s 37D(1)(b) of the Pension Act to recover and deduct from Fusirantuba’s
provident fund benefits, damages caused to it by Fusirantuba by reason of
any theft, dishonesty, fraud or misconduct.
[64] In Moodley v Scottburgh / Umzinto North Local Town Council and Another
2000 (4) SA 524 (D) it was held that ‘ misconduct’ for purposes of s
37D(1)(b) had to be interpreted to mean dishonest conduct, or at least
conduct involving an element of dishonesty. Pillay J expr essed doubts about
the correctness of the decision in Msunduzi Municipality v Natal Joint
Municipal Pension / Provident Fund and Others 2007 (1) SA 142 (N), but
the decision was followed in South African Broadcasting Corporation SOC
Ltd v South African Bro adcasting Corporation Pension Fund and Others
2019 (4) SA 608 (GJ). For purposes of this judgment I accept, without
deciding, that ‘ misconduct’ as contemplated in s 37D(1)(b) is intentional
conduct which requires at least an element of dishonesty.
[65] As I have already indicated, Spar’s particulars of claim in the action contain
allegations of conduct involving a dishonest breach on the part of
Fusirantuba of his fiduciary duties to act in the best interests of Spar at all
times, not to put his personal interests above those of Spar, not to receive
secret benefits, and to disclose any personal interest in a contract with a
supplier of Spar. The particulars of claim set out the basis on which the
amount of R 8 2 08 430.92 is claimed as damages, being the amount that
Spar overpaid for the products purchased from Gift Barrel as a result of the
average mark-up of 25% on the prices charged by Otima.
[66] The evidence relied on by Spar appears from the minute of the disciplinary
enquiry. Having regard to the uncontested evidence contained in the minute,
I am of the view that Spar should succeed in obtaining relief at trial in the
action.
[67] In his answering affidavit, Fusirantuba resists the interim interdict on the
following grounds:
a) Spar’s claim, as formulated in its particulars of claim, does not fall
within the ambit of s 37D(1)(b) of the Pension Fund Act;
b) Fusirantuba has del ivered an exception to Spar’s particulars of claim
in the action;
c) Fusirantuba disputes the quantum of the loss claimed by Spar,
alleging that its claim is not based on specific invoices, but on
assumptions and estimations;
d) Fusirantuba attempts to ex plain why he did not cross -examine Spar’s
witnesses in the disciplinary enquiry;
e) Fusirantuba alleges that he did not personally benefit from the listing
of Gift Barrel as a supplier, as the amounts paid were for his son;
f) Fusirantuba is 57 years old, unemployed and without an income, and
needs his pension fund benefits to live on and fund his defence of the
action.
[68] Ground a): As to the formulation of Spar’s claim, I have already indicated
that, in my view, Spar’s clai m clearly falls within the ambit of s 37D(1)(b)
of the Pension Act. I do not agree with the Fund’s assertion to the contrary,
and I regard the Fund’s assessment of Spar’s particulars of claim as
blinkered and blind to the obvious. In short, I consider that the Fund failed
properly to apply its mind to the case made out in the particulars of claim ,
and that it acted unreasonably in demanding that Spar amend its particulars
of claim as a precondition for the continued withholding of payment of
Fusirantuba’s pension benefit.
[69] Ground b): As to the exception, Fusirantuba alleges that he has delivered an
exception to Spar’s particulars of claim , and that his legal team has done
everything necessary, including drafting of heads of argument and appl ying
for a date for the hearing of the exception, which is awaited at present. He
alleges that Spar has not filed any heads of argument, or taken any other
steps in regard thereto, and that the exception effectively stands as an
unopposed matter at this time.
[70] Spar, however, alleges that CDH has not been served with the exception or
heads of argument, and that it has never previously seen the notice of set
down annexed to the answering affidavit, which did not appear on Caselines
or Court Online as at 5 October 2025. Spar alleges that all Fusirantuba’s
attorneys did deliver a notice to remove the cause of complaint in terms of
Rule 23(1), and that CDH wrote to them explaining that Spar was in the
process of compiling the necessary documentation in o rder to amend its
particulars of claim, and that it would seek condonation in term of Rule
27(3) for the late response to the Rule 23(1) notice.
[71] In the light of Spar’s response, Fusirantuba’s allegations regarding the status
of the exception, which can only emanate from his legal representatives, are
a cause for concern. No copy of the exception and/or the heads of argument
has been annexed to the answering affidavit. This is a fundamental omission
given that Fusirantuba seeks to rely on the exception to cast doubt on Spar’s
prima facie case.
[72] All that has been annexed to the answering affidavit is a notice of set down
with the date left blank, which tells one nothing. No proof is provid ed of
anything having been uploaded onto Caselines or Court Online. This is a
highly unsatisfactory state of affairs. Courts should be able to reply
implicitly on the accuracy of the information presented by legal practitioners
with regard to matters under their control.
[73] Be that as it may, I do not consider it necessary for present purposes to
resolve the mystery surrounding the status of the exception. Not having had
sight of the contents of the exception, I cannot take it into account in the
evaluation of the strength of Spar’s prima facie case.
[74] As I have already indicated, I am satisfied that Spar’s particulars of claim in
their present form do indeed disclose a cause of action in terms of s
37D(1)(b) of the Pension Act. The exception is therefore irrelevant for
purposes of this application.
[75] Ground c): As to the disputes raised by Fusirantuba’s regarding the quantum
of damages claimed by Spar, I am of the view that the challenges to quantum
do not afford a defence to this application for interim relief. All that Spar is
required to show, for purposes of the interim interdict sought, is that it has a
prima facie claim for damages which exceed the value of Fusirantuba’s
provident fund benefit, which was R 6 577 073,18 as at 10 June 2025.
[76] Spar has put up a rational basis for the avowedly provisional quantification
of its damages claim. It has explained that the amount claimed is based only
on the years 2020 to 2024, and that its claim will likely increase when it
obtains access to further documentation to enable to substantiate its claim
with effect from 2016.
[77] In my view Fusirantuba’s a ttacks on the method of calculation of the
quantum are misconceived in the context of interim relief. The challenges
which he raises are the sort which fall to be ventilated and determined at the
trial. And in any event, even on Fusirantuba’s version, he only manages to
reduce Spar’s claim by some R 2 million. He has not succeeded in casting
serious doubt on the quantum of Spar’s claim.
[78] I consider that there is sufficient evidence on the papers to show prima facie
prospects that Spar will recover damag es of more than R 6 577 073,18 on
trial in the action.
[79] Ground d) : Fusirantuba attempts to explain his failure to cross -examine
Spar’s witnesses in the disciplinary enquiry, and to ‘walk back’ the
damaging admissions which he made there, by claiming that he was
unrepresented at the hearing and did not understand the process of the
consequences thereof.
[80] However, the notice to appear at the disciplinary informed Fusirantuba that
he was ent itled to be assisted at the hearing by a colleague. He was also
informed of the right to cross -examine witnesses, to call witnesses, and to
make use of an interpreter.
[81] The minute of the disciplinary enquiry shows that Fusirantuba was proficient
in English, and reveals him to be a person of sophistication who understood
the nature of the proceedings. His recent version that he did not understand
the proceedings is at odds with his own explanation for why he di d not
challenge the evidence led at the enquiry, which was, ‘ I am deeply sorry.
This is why I did not make any effort to defend myself or gather witnesses
and I deeply regret my actions. It will be within company right to take
action.’
[82] Fusirantuba alleges that he did refer the matter of his dismissal to the
CCMA, but he claims that, when he attended the CCMA, he was
unrepresented while Spar was represented, and that the Commissioner,
having posed questions to the parties, suggested that Fusirantuba wi thdraw
his matter, stating that, ‘ she knows Spar and their cases are always well
prepared.’ For that reason, he withdrew his complaint. He claims that he did
not appreciate at the time that the Commissioner was manifesting bias
against him.
[83] Spar deni es the contents and accuracy of Fusirantuba’s allegations in this
regard. It persists that, as a matter of fact, Fusirantuba has not challenged
any of the findings of misconduct made against him in the disciplinary
enquiry.
[84] I have great difficulty i n believing Fusirantuba’s version as to what the
Commissioner of the CCMA is alleged to have said. But whatever the reason
for his failure to pursue the case at the CCMA, the fact of the matter is that
he has done nothing to challenge the findings made aga inst him in the
disciplinary enquiry.
[85] It is significant that Fusirantuba has not sought in this application to
challenge the correctness of the minute of the disciplinary enquiry, or the
substance of the evidence which was led at the disciplinary enquiry (save for
his challenge to the quantification of Spar’s claim). He does not deny that he
made the statements attributed to him in the minute. Fusirantuba rather seeks
to dispute the conclusions reached by the chairperson of the disciplinary
enquiry.
[86] By virtue of the rule in Hollington v Hewthorn Co Ltd [1943] KB 587 (CA)
[1943] 2 All ER 35, I am not bound by the findings of the chairperson of the
disciplinary enquiry as they amount to an expression of opinion , which is
inadmissible. But I can have regard to the statements made by Fusirantuba in
the disciplinary enquiry, which he does not deny having made. I can also
have regard to the evidence presented by Spar’s witnesses at the disciplinary
enquiry, as they have deposed to confirmatory affidavits in this application
in which they confirm the evidence which they gave at the enquiry.
[87] Based on Fusirantub a’s own version in the disciplinary enquiry, I consider
that Fusirantuba did indeed admit to dishonest conduct, and that his belated
attempt to distance himself from his admissions with reference to an alleged
lack of understanding of the process is disingenuous.
[88] Ground e): Fusirantuba alleges that he is not guilty of theft because he did
not personally benefit from using Gift Barrel , and that the monies paid by
Gift Barrel were for his son.
[89] Even if one accepts, for purposes of argument, that F usirantuba did not
receive money from Gift Barrel, and that all payments from Gift Barrel in
fact went to Fusirantuba’s son, there is still clear evidence of a dishonest
non-disclosure to Spar of an involvement with Gift Barrel which benefited
Fusirantuba’s son, which amounted to a breach of Fusirantuba’s contract of
employment and of his fiduciary duties to S par, and which dishonest
conduct caused Spar to suffer loss.
[90] But, as I have already indicated, I have doubts about the veracity of
Fusirantuba’s version that Gift Barrel paid his son more for part -time work
as a driver than he, Fusirantuba, earned at Spar in a managerial position. In
my view, Spar enjoys good prospe cts of being able to demonstrate, with the
aid of cross -examination, that Fusirantuba did indeed benefit personally
from his scheme with Gift Barrel.
[91] Ground f) : As to the balance of convenience, Fusirantuba alleges that the
balance of convenience fav ours him as he is a fifty-seven-year-old person
without employment or an income, and he needs the provident fund money
to survive and to defend himself in the litigation.
[92] While I can appreciate the predicament in which Fusirantuba finds himself,
his admission that he needs the funds to survive, and to pay for legal
expenses, provides clear proof that Spar will suffer irreparable harm if an
interim interdict is not granted t o preserve the funds , and it ultimately
succeeds in the action. There can be little doubt that, without an interdict, the
funds will be spent by the time the matter gets to trial, and Spar, if
successful, would be left with a hollow judgment.
[93] Fusirantuba, on the other hand, will not suffer irreparable harm if the interim
relief is granted and the action is ultimately dismissed, at which stage he will
receive the funds, with accrued interest. He may well experience
inconvenience in the intervening per iod, but, given that this is an
interlocutory order, he is at liberty to approach the Court to amend or
discharge the interdict if circumstances change and undue hardship results
therefrom.
[94] In my view, therefore, the balance of convenience clearly fa vours the
granting of the relief sought by Spar.
Conclusion and costs
[95] For all the reasons set out above, I conclude d that Spar ha d met the
requirements of a prima facie right and a balance of convenience, and that it
was appropriate to grant an interim interdict as prayed.
[96] Spar sought costs only in the event that the application was opposed.
Fusirantuba elected to oppose the application, and did so on grounds which
were, in my view, misconceived and doomed to fail. In the circumstances, I
considered it appropriate that Fusir antuba be ordered to bear the costs
occasioned by his opposition to the application.
_____________________________
D M DAVIS
ACTING JUDGE OF THE HIGH COURT
Appearances:
For applicant: P Van Der Berg SC (with MN Ndlovu)
Instructed by Cliffe Dekker Hofmeyr Inc.
(Tim Smit / Loyiso Bavuma)
For third respondent: C Tait
Instructed by James Attorneys (R James)