SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE N2:10499/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES
DATE: 28/04/2026
SIGNATURE:
In the matter between:
BEARING MAN(PTY) LTD APPLICANT
V
DAVON PIETERS 1ST RESPONDENT
ALEXANDER FORBES FINANCIAL
SERVICES (PTY) LTD 2ND RESPONDENT
Delivered 28 April 2026
This judgment was handed down electronically by circulation to
the parties' legal representatives by e -mail. The date and time
for hand down of the judgment is deemed to be 28 April 2026 at
10:00 am.
Date heard 19 January 2026
Coram Pillay J
JUDGMENT
PILLAY J:
INTRODUCTION:
[1] The parties came before Court by way of an urgent application. The applicant
required the Court to dispense with the normal requirements pertaining to the rules
and formalities in respe ct of timelines in terms of rule 6(12) insofar as it pertained to
urgency in respect of this application. The applicant had filed its founding affidavit in
support of same and obtained an interim interdict against the second respondent to
withhold the bene fits due to the first respondent flowing from the termination of his
employment with the applicant. The application was opposed only by the first
respondent, with the first respondent filing his opposing affidavit. The second
respondent was properly served with the Court Order and application but has not
opposed same. The applicant replied and the parties filed practise notes and heads
of argument in respect of the said application. The applicant sought the confirmation
of the interim order which read as follows;
[1.1] The application is deemed urgent and the applicant's failure to comply
with the terms and times for service and notice in terms of the Rules of the
above Honourable Court is condoned on the grounds of urgency in terms of
Rule 6(12).
[1.2] Leav e is granted to amend and substitute the citation of the second
respondent with Alexander Forbes Retirement Fund (Provident Section) a
pension fund organization as contemplated in section 5(1)(a) of the Pension
Fund Act 24 of 1956 with its principal place of business situated at 1[...] W[...]
Street Sandown Sandton 2196.
[1.3] A rule nisi is hereby issued calling upon the 1 st and 2nd respondents to
show cause if any to the above Honourable Court on 25 March 2025 at 10;00
AM or soon thereafter as the matter may be heard why an order should not be
made in the following terms:
[1.3.1] The second respondent is interdicted and restrained from
releasing or paying any monies from the first respondent's pension
releasing or paying any monies from the first respondent's pension
fund credit in the Alexander Forbes Retirement Fund, to the first
respondent, pending the finalization of the civil action instituted by the
applicant against the first respondent under case number 9495/2024,
currently before in the Limpopo High Court held at Polokwane.
[1.3.2] The second respondent is directed to withhold the first
respondent's pension credit in the Alexander Forbes Retirement Fund
pending the finalization of the civil action referred to in prayer 2.1.
above, provided that the second respondent is not required to withhold
any amount over and above the amount due to the first respondent in
terms of its registered rules.
[1.3.3] Service of this order is to be affected by the Sheriff by serving a
copy of the order on the first and second Respondent.
[1.4] No order as to costs.
[1.5] Prayers 1.3.1. to 1.3.3 operate with immediate effect as an interim
order pending the finalization of this application.
BRIEF BACKGROUND:
[2] The applicant is a Distributor and engineering services provided to inter alia
the mining industry. The first respondent was employed as a branch manager at the
applicant's Phalaborwa site on 18 February 2021.
[3] The first respondent was alleged to have been involved in fraudulent conduct
whilst in the employ of the applicant and was subsequently dismissed as an
employee and damages were sought from him arising from the allegation of him
being involved in dishonest activity whilst in the applicant's employ. The applicant
subsequently instituted summons for damages flowing from the first respondent's
alleged misconduct.
[4] The first respondent was advised to attend a disciplinary inquiry on 22 May
2024 to address the allegations of fraud in that between October 2023 and April
2024 he colluded with an external engineering supplier Bushveld Projects to inflate
prices and the reby derived financial benefit for himself. He did not attend the
disciplinary inquiry, instead he resigned and the proceedings continued in his
absence amidst the first respondent being contacted telephonically prior to the
proceedings continuing, once he refused to avail himself to respond to the
allegations. Evidence was led satisfactorily concerning his involvement in these illicit
and unlawful acts and consequently resulted in his dismissal.
[5] On the 2 July 2024 the applicant's attorney contacted th e second respondent
invoking the provisions of Section 37D of the Pension Funds Act 1, requesting the
second respondent to withhold payment of the first respondent's pension benefits
because of the first respondent's fraudulent behaviour. The response from the
second respondent was that an interdict from Court would be preferable resulting in
the interim interdict granted as per the above Court order, which the applicant sought
to be made final pending the damages claim which was inst ituted against the first
respondent.
[6] The applicant indicated that the first respondent after his dismissal did not
refer the alleged unfair dismissal dispute to the CCMA amidst being aware of his
rights insofar as approaching the CCMA being an imparti al adjudicator to assist in
respect of his dismissal if he was aggrieved by same. The applicant highlighted that
it was in the interest of justice that the order be made final. The funds held by the
second respondent would still draw interest and that on th e finalization of the
proceedings against the first respondent same could be used to offset the debt owed
alternatively refunded to the first respondent and that the applicant's case is merited
for the rule nisi to be confirmed as per the Court Order.
[7] The first respondent in opposition to the application indicated that he disputed
the contents of the deponent's affidavit insofar as the involvement of the deponent in
the day -to-day running of the business and the deponent's firsthand knowledge in
relation to the uncorroborated hearsay evidence which the deponent has alleged to
have knowledge of concerning the matter. He indicated that there was no justification
have knowledge of concerning the matter. He indicated that there was no justification
that anything stated in the founding affidavit was true and or correct.
[8] The first responde nt confirmed that he was employed by the applicant but
denied that he perpetrated any fraudulent conduct as alleged by the applicant. He
1 See Act 24 of 1956
admitted that he was dismissed on 23 May 2024 after the disciplinary hearing was
held in his absence on 22 May 2024. He indicated that he did not attend the
disciplinary hearing as the outcome thereof was a foregone conclusion and same
was a mere formality as stated by Employees, Managers and Board Members of the
applicant to him. He highlighted that the Chairperson of t he disciplinary hearing was
employed by the applicant as well as the Investigator tasked with the investigation,
therefore his participation in such proceedings would have been a futile exercise as
there could be no impartiality.
[9] He denied that there w as any merit in the Civil proceedings pending against
him and the entitlement to the interdict against his pension fund benefits. He
confirmed the Summons issued against him on 24 August 2024 alleged he
committed bribery and corruption by awarding contract s to suppliers of the applicant
in exchange for benefits in money but disputed the allegations. Further he disputed
that he forged invoices in the process and he retained the money for himself or used
it to solicit further bribes as contained in the applic ant's particulars of claim in
paragraph 8.2.
[10] He denied the results of the internal investigation. According to him after his
appointment as branch manager at Phalaborwa, he was requested to build a firm
customer base over and above the existing contr act volumes in place, during the
annual branch meetings. He was instructed to aggressively promote the branch and
to pay commission to agents obtaining any extra orders. The said commissions were
to be paid directly from the amount included as part of the markup placed on
products and services by the branch. The commission would be paid to the agent
without affecting profit and directly benefiting the applicant.
[11] On 23 April 2024, he was instructed to take commission a step further to
include commissions directly affiliated to employees of customers with which he did
include commissions directly affiliated to employees of customers with which he did
not agree, whereafter he visited the applicant's Head Office in Johannesburg, to
object to and refuse payment of commission to employees of customers as per the
instructions rece ived. The report was ill received which resulted in his dismissal
flowing from what he believed, was the animosity the report created between the
Directors of the applicant as some of the Directors were never informed of the
commissions paid and the others who gave the instructions, backtracked and denied
giving those instructions. He denied appropriating any money for himself as it was
solely paid out to agents as commission. He indicated that the applicant never made
a loss but benefited therefrom as the customers in fact paid the commission.
[12] He denied the averments made by the applicant in the various paragraphs as
contained in the founding affidavit and that his conduct constituted bribery and
corruption. He indicated that at all material times he w as supervised and following
instructions. He stated that at no stage did he breach any agreements or the code of
conduct. He maintained that the supply contracts were already in place prior to him
being appointed and no further contracts were entered into, after his appointment,
that he was aware of.
[13] He highlighted that he could not appoint suppliers and that no services or
products was supplied to suppliers, as the suppliers supplied their products to the
applicant for the resale, alternatively suppl ied customers with products, as per the
agreements existing between the applicant and the suppliers. He indicated that he
was not involved in the issuing of invoices nor was he involved in the sales but was
responsible for verifying orders and customer inv oicing to be in line with the
deliveries. If there were any questions to be raised in respect of pricing and
commission the Head Office would immediately have raised the alarm.
[14] He stated that the cost price of goods was obtained from the applicant's
appointed suppliers or the applicant's Head Office, whereafter the Branch may add
profit in its discretion. In so far as commission was concerned the instructions came
from his seniors and he denied misappropriating any money for personal use,
accepting m oney as commission for personal use or soliciting bribes. He denied
making any misrepresentations and never overinflated costs. He disputed the
making any misrepresentations and never overinflated costs. He disputed the
contents of the "Annexure C" as it was not an electronically generated document and
the contents contained there in could be misconstrued. According to him the
document constituted hearsay as the author thereof as well as the information
forming the basis thereof was inadmissible.
[15] He disputed that he acted fraudulently or dishonestly and that there was any
money that the applicant could recover as the applicant made no loss, nor was the
applicant's name tarnished in any way. In fact, according to him, the application was
without merit and based on hearsay and utter misconceived speculation. He
maintained that he would suffer prejudice as he was dependent on his pension to
make a living after being dismissed by the applicant for no valid reason. At present
he and his family suffer severe financial prejudice, whilst the alleged suppliers still
provide goods to the a pplicant, as per usual without any prejudice and the relevant
Directors who gave the instructions to pay the commission, were still employed by
the applicant. The first respondent highlighted that if the applicant were to be
successful it could execute aga inst his assets or obtain a garnishee order against
him in the event of Judgment which was disputed.
[16] The first respondent submitted that the protection afforded to employer's
rights to pursue the recoveries of money misappropriated by its employees in terms
of the provisions of section37D(1)(b) could only be afforded to the extent that the
applicant could prove its claim and the Court could not deviate therefrom. The first
respondent submitted that the application was not urgent due to the delay of a period
of approximately four months and that the interim order should be dismissed with
costs.
[17] In reply the applicant argued that the deponent had the relevant authority to
file an affidavit in support of the application on its behalf and maintained that there
was justification in the urgency of the application, to interdict the second respondent
from releasing the first respondent's pension interest, pending the final resolution of
the Civil action which was brought against the first respondent. The contents of the
documentation used in support of the application as well as for the purposes of the
documentation used in support of the application as well as for the purposes of the
Civil litigation against the first respondent, was compiled as a result of investigation
done into the alleged misconduct by the first respondent. This evi dence would be
discovered at the relevant time during the Civil proceedings instituted against the first
respondent.
[18] The applicant maintained that the first respondent's actions have illustrated
his dishonest behaviour and therefore if the pension int erest was released to him,
there was a strong possibility that the applicant would not recovered this money and
this was inherently prejudicial to the applicant, if the interim order was not made final.
It was further on account of the second respondent's communication, that it would
not withhold the release of the first respondent's pension benefit without any interdict,
that resulted in the applicant having to approach the Court on an urgent basis. The
applicant maintained that there was compliance with the requirements of the Pension
Fund Act and the first respondent had made a bold allegation of noncompliance
without substantiating same and as such did not meaningfully grapple with the
issues at hand especially the allegations of the payment of funds b y Bosveld
Products.
[19] Both parties filed detailed heads of argument in support of and opposing the
confirmation of the Rule Nisi.
COMMON CAUSE FACTS:
[20] The following were identified as the facts germane to the matter.
[20.1] That the identity of the parties was not in dispute and the fact that the
first respondent was employed by the applicant.
[20.2] That the first respondent's employment was terminated after a
disciplinary enquiry was held in his absence, amidst being informed of same
and being tel ephonically contacted by the Chairperson at the time of the
disciplinary enquiry, wherein he indicated that he would not be attending.
[20.3] That the first respondent did not approach any higher forum or CCMA in
respect of his dissatisfaction concerning t he alleged basis for dismissal being
the allegations of dishonesty and fraud.
[20.4] That the second respondent sought a Court Order in respect of an
interdict to halt the payment of the pension interest to the first respondent.
[20.5] That a Rule Nisi was granted calling on the respondents to show cause
why the interim interdict for the preservation of the pension interest of the first
respondent, as held by the second respondent, pending the outcome of the
respondent, as held by the second respondent, pending the outcome of the
civil claim for damages, not be confirmed.
FACTS IN DISPUTE:
[21] The crisp issues for determination were the following:
[21.1] Whether the applicant had made out a case for the confirmation of the
Rule Nisi as sought by the applicant?
[21.2] Whether the disciplinary enquiry was fair and just resulting in a just
decision or as indicated by the first respondent " as stated by Employees,
Managers and Board Members of the applicant to me. The Chairperson of the
disciplinary hearing is emplo yed by the applicant as well as the Investigator
tasked with the investigation. Therefore, my participation in such proceedings
would have been a futile exercise as there can be no impartiality '' was a mere
formality where the outcome was pre-determined.
[21.3] Whether the first respondent's version in rebuttal of the said application
had merit, requiring a dismissal of the interim interdict.
[21.4] Whether the applicant had recourse to other remedies outside of this
Court Order, and whether the prejudice s uffered by the first respondent
outweighed that of the applicant and grounds for the refusal of the application.
THE LEGAL PRINCIPLES AND ITS APPLICABILITY
[22] It is common cause that there is currently an Interim Interdict granted in favour
of the appl icant dated 15 October 2024. The issue of urgency had already been
ventilated in those proceedings as per the Court Order. At the time this matter was
argued it was apparent that the issue of urgency was no longer pertinent to be
ventilated. Moreover, this Court was satisfied that the basis for urgency had already
been established when the Interim Order was granted. Therefore, this issue needed
no further adjudication.
[23] The provision of section 37A (1) and section 37D of the Pension Fund Act 2
reads as follows:
2 See Act 24 of 1956 as above
Section 37A(1) reads:
'Pension benefit is not reducible, transferable or executable.
(1) Save to the extent permitted by this Act, the Income Tax Act, 1962
(Act 58 of 1962), and the Maintenance Act, 1998, no benefit provided for
in the rules of t he registered fund (including an annuity purchased or to
be purchased by the said fund from an insurer for a member), or right to
such benefit, or right in respect of contributions made by or on behalf of
a member, shall, notwithstanding anything to the co ntrary contained in
the rules of such a fund, be capable of being reduced, transferred or
otherwise ceded, or of being pledged or hypothecated or be liable to be
attached or subjected to any form of execution under a judgment or
order of a court of law ... '.
Section 37A(3) however states that the prohibition against reduction
does not apply to a reduction effected under s 37D.
Section 37D(1)(b) provides:
'(1) A registered fund may-
(a) ...
(b) deduct any amount due by a member to his employer on the dat e
of his retirement or on which he ceases to be a member of the fund, in
respect of -
(i) ...
(ii) compensation (including any legal costs recoverable from the
member in a matter contemplated in subparagraph (bb)) in respect of
any damage caused to the em ployer by reason of any theft, dishonesty,
fraud or misconduct by the member,
and in respect of which -
(aa) the member has in writing admitted liability to the employer; or
(bb) judgment has been obtained against the member in any court,
including a magistrate's court, from any benefit payable in respect of the
member or a beneficiary in terms of the rules of the fund, and pay such
amount to the employer concerned'.
[24] From the accepted evidence it was apparent that at the time of the disciplinary
inquiry the applicant had diligently investigated the allegations of fraud and theft
involving the first respondent. The first respondent however amidst these serious
allegations maintained that he was acting under the instr uction, supervision and
direction of his seniors. He however elected not to place this information before the
disciplinary inquiry.
[25] It was also clear that amidst this unjust and unfair decision taken by the
applicant, the first respondent had taken no steps to appeal to a different forum. If
anything, up and until the proceedings before Court, the first respondent showed
little or no interest in rebutting the narrative, that was presented by the applicant,
concerning these very serious allegations agai nst him. This was disconcerting
considering his defence and opposition to this application.
[26] Regard was had to the case of Highveld Steel and Vanadium Corporation Ltd
v Oosthuizen3 where the SCA appreciated the difficulty facing the employer to have
secured judgment against an employee, at the time that the employee's retirement
benefit was to be paid out. The SCA noted,
"It seems to me that to give effect to the manifest purpose of the section, its
wording must be interpreted purposively to include the power to withhold
payment of a member's pension benefits pending the determination or
acknowledgement of such member's liability. The Funds therefore had the
discretion to withhold payment of the responde nt's pension benefit in the
circumstances. I daresay 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".
[27] From the reading o f the SCA decision, there lies a duty on the Court to strike
a balance with the need sought by the applicant to preserve the funds held by the
second respondent, offset against the prejudice to be suffered by the first respondent.
The first respondent in h is answering affidavit made no mention concerning placing
The first respondent in h is answering affidavit made no mention concerning placing
his defence and version before any forum, creating the impression that he was
comfortable with the outcome of the disciplinary inquiry, as well as allowing the real
3 (103/2008) [2008] ZASCA 164 (01December 2008)
perpetrators of this unlawful con duct, on his version, to go unpunished and free to
perpetuate this illegal activity in the future, to the prejudice of himself and the
applicant. The first respondent will be afforded an opportunity to test the applicant's
version at trial, with specific r eference to the allegation of the report compiled
documenting the fraudulent activities being inadmissible and unreliable. He will also
then be able to put his version before Court for ventilation.
[28] The first respondent indicated that his family's nee d for his pension interest
outweighed that of the applicant since his financial circumstances were dire and
more serious than that of the applicant. This supported the argument by the
applicant concerning the respondent's intention to deplete his pension i nterest, and
further escape liability, once the judgment against him for the alleged theft and fraud
was finalized as per the applicant's case. When considering these two separate
distinct interests the Court found that the prejudice to be suffered by th e applicant far
outweighed that of the first respondent.
[29] The allegations against the first respondent were serious, the amount alleged
to have been fraudulently stolen was over one million rands (R 1000 000,00). This
was offset against the pension in terest of the first respondent which according to the
parties were not much since the first respondent was not employed by the applicant
for long. The Court appreciated that the liability if any, of the first respondent, will
only be determined at a later stage, and the allegations were serious and could not
be ignored. The first respondent failed to seriously grapple with these issues, and the
Court was satisfied that the applicant, had made out a case for final relief in
circumstances where the Rule Nisi was granted for interim relief and a case was
made out for same to be confirmed.
[30] Therefore, having regard to all the evidence placed before me I am satisfied
[30] Therefore, having regard to all the evidence placed before me I am satisfied
that the applicant has made out a case for the confirmation of the interim order as
per the Court Order dated 15 October 2024.
[31] Both parties sought costs in respect of these proceedings. As costs are at the
discretion of the Court, I believe that at this stage it is prudent that costs be reserved
to be ventilated during the trial proceedings.
[32] In the result the following Order is made;
[32.1] The Rule Nisi granted by the Court on 15 October 2024 is confirmed.
[32.2] The issue of Costs is reserved to be determined during the Civil Trial
proceedings in Case Number 9459/2024 involving the parties.
K.L. PILLAY J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
FOR THE APPLICANT : Adv. WJ Hutchinson
INSTRUCTED BY : MacGregor Erasmus
: c/o Chayya S Attorneys
: Limpopo Polokwane
FOR THE RESPONDENT : Adv. AJ Swanepoel
INSTRUCTED BY : Jay Inc
: c/o Mohale Inc
: Limpopo Polokwane