REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 2025-158149
In the matter between:
In the matter between:
EMFULENI LOCAL MUNICIPALITY Applicant
and
MUNICIPALITY GRATUITY FUND First Respondent
AZWINDINI SILENCE MUNWAI Second Respondent
Delivered: This judgment was prepared and authored by the judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date of hand-down is deemed to be 25 August 2026.
JUDGMENT
CARELSE, AJ
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
25 August 2026 _________________________
DATE SIGNATURE
2
Introduction
[1] The applicant, Emfuleni Local Municipality, seeks to recover remuneration paid
to its former employee, the second respondent, Mr Azwindini Silence Munwai. It
alleges that, from October 2020 until his resignation on 24 July 2023, Mr Munwai
neither reported for duty nor rendered services to it, although he continued to
receive remuneration. It also seeks an order that, should he fail to repay the
amount claimed, the first respondent, the Municipal Gratuity Fund (“the Fund”),
pay it from his pension interest.
[2] The application was brought in two parts. Part A came before Kruger AJ on an
urgent basis on 19 September 2025, when an order was issued interdicting the
Fund from processing or paying any portion of Mr Munwai’s pension interest
pending the determination of Part B. Part B is now before me.
[3] The central question is whether the Municipality has established the factual
premise on which its claim depends: that Mr Munwai rendered no services during
the period in question. Because final relief is sought on motion, that question
must be determined in accordance with the ordinary principles governing
disputes of fact in motion proceedings. If the Municipality cannot establish that
premise, the declaratory and monetary relief cannot follow. The further relief
sought against the Fund raises separate questions under section 37D(1)(b) of
the Pension Funds Act (“the Act”).
1
The Parties And The Relief Claimed
[4] The Municipality is a local authority established under the Local Government:
Municipal Structures Act. 2 The Fund is a registered pension fund. Mr Munwai
was employed by the Municipality from 1 November 2010 as a Senior
Engineering Technician in its Parks and Cemeteries Department and resigned
with immediate effect on 24 July 2023.
1 24 of 1956.
2 117 of 1998.
3
[5] The Fund does not oppose the application and did not appear at the hearing. In
correspondence dated 5 March 2026, its Chief Executive Officer stated that the
Fund would not oppose an application should it comply with section 37D of the
Act. The Fund has filed no affidavit. Its rules are not before Court, nor has it
placed before Court any decision concerning a deduction from Mr Munwai’s
benefit.
[6] In Part B the Municipality seeks a declaration that Mr Munwai failed to report for
duty and/or to perform any task for its benefit from October 2020 until his
resignation, alternatively, as claimed in prayer 2, that he absconded during that
period. It also seeks repayment of remuneration, allowances and bonuses paid
to him and, failing repayment, payment of that amount by the Fund from his
pension interest. Costs are sought on the attorney and client scale, alternatively
scale C.
[7] The claim originally advanced was for R 4 221 412.25. In a signed
supplementary affidavit delivered on 30 October 2025, the Municipality reduced
it to R 2 523 882.02, calculated for the period October 2020 to September 2023.
At the hearing, counsel confirmed that the reduced amount was pursued and did
not persist in prayer 2 of the notice of motion, which had been omitted from the
draft order handed up.
[8] The material background facts that follow are common cause or established on
the papers.
[9] Mr Munwai reported at first to Mr Azwindini Mundalamo, the Assistant Manager:
Cemeteries, and from February 2015, after Mr Mundalamo was suspended, to
Ms Xithembiso Ngobeni, the Manager: Parks and Cemeteries.
[10] The relationship between Mr Munwai and Ms Ngobeni deteriorated. On 11 May
2016, the Magistrates’ Court granted a final protection order in her favour under
the Protection from Harassment Act,
3 which prohibited Mr Munwai, amongst
other things, from threatening to kill her, following or stalking her, and verbally
engaging with her. He was thereafter seconded to the Sports and Recreation
engaging with her. He was thereafter seconded to the Sports and Recreation
3 17 of 2011.
4
Department under Mr Benjamin Manzi, where it is common cause that he
rendered services.
[11] Ms Ngobeni was subsequently suspended and dismissed. Mr Munwai returned
to Parks and Cemeteries and acted in her position from May 2017 until her
reinstatement in May 2019. He then returned to his substantive position. The
protection order remained in forc e and materially complicated direct interaction
between him and Ms Ngobeni.
[12] By October 2020, the Municipality sought to resolve the difficulty by transferring
Mr Munwai permanently to Sports and Recreation. Mr Diek Mahlaba, the
Manager: Human Resources, commenced consultations with him. Mr Munwai
raised concerns about the level of the proposed post and his conditions of
service. On 29 October 2020, Mr Mahlaba recommended that he be consulted
further so that the matter could be resolved.
[13] The proposed transfer was never finalised. Mr Mahlaba confirms that. The
papers disclose no subsequent formal resolution of Mr Munwai’s reporting line.
That unresolved position forms an important part of the factual dispute which
followed.
[14] On 25 February 2021, Mr Munwai addressed a memorandum to the Executive
Director: Community Services seeking guidance on his reporting line. He
recorded that Mr Mundalamo was leaving the Municipality and stated that,
pending feedback, he would report direct ly to Human Resources. There is no
evidence of a response directing him elsewhere.
[15] On 19 March 2021, Mr Munwai signed for a notice of a disciplinary hearing set
down for 23 and 24 March 2021. Mr Sebego Hlongwane was the employer’s
representative. Mr Munwai says that the hearing convened, that he attended and
that it was postponed but ne ver reconvened. The Municipality points out,
correctly, that the charges concerned earlier conduct and did not concern his
attendance after October 2020.
[16] The Municipality nevertheless continued to remunerate Mr Munwai during his
employment. Further payments were made after his resignation: on his version
5
he received payments for August and September 2023 and again in February
2024.
[17] On 21 July 2023, a newspaper reported that the Municipality was investigating
allegations that Mr Munwai had received remuneration while absent from work.
On 24 July 2023, he resigned with immediate effect. He attributed his resignation
to the working conditions and to life- threatening telephone calls received after
publication of the report.
[18] An internal investigation followed. Its report recorded that attendance registers
for periods between January 2022 and May 2023 bore checking signatures which
the investigators could not attribute to the relevant managers and described the
registers as fraudulent. The report also recorded failures in the Municipality’s own
controls: a 2021 headcount had not established whether Mr Munwai was
reporting for duty; the absence of timesheets had not been detected; and the
reporting issue had not been escalated. The investigators recommended
recovery from Mr Munwai’s pension benefit.
[19] The Municipality laid a charge of fraud and theft against Mr Munwai. The docket
printout in the papers records that the docket was closed as undetected on 15
August 2024.
[20] In June 2024, Mr Munwai instituted proceedings to compel the Municipality to
complete the documents required for payment of his pension benefit. In August
2024, the Municipality proposed a settlement requiring an admission of liability
for R 4 221 412.25, which he rejected. His exit documentation was ultimately
completed on 25 July 2025.
[21] In argument, the Municipality treated the matter as involving two principal stages.
The first was whether Mr Munwai had rendered no services and was
consequently obliged to repay the remuneration received. The second was
whether the facts established the dishonesty or other qualifying conduct required
by section 37D of the Act so that the pension benefit could be reached. When
the distinction was put to counsel, he accepted that a money judgment not
the distinction was put to counsel, he accepted that a money judgment not
founded upon dishonesty would not, without more, permit recovery from the Fund
under section 37D.
6
[22] I begin with the first issue, which is decisive of the application. Because the
section 37D issue was fully argued and bears directly upon the pension relief
sought, I deal with it thereafter only to the extent necessary.
[23] The Municipality seeks final relief on motion. The familiar rule in Plascon- Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
4 is that, where a genuine dispute of
fact arises, final relief may ordinarily be granted only on the facts stated by the
respondent together with those facts in the applicant’s affidavits which the
respondent admits. A respondent’s version may be rejected on the papers where
it is so far -fetched or clearly untenable that it can properly be rejected without
oral evidence. Motion proceedings are not designed to determine probabilities
where genuine disputes of fact exist.
5
[24] It is common cause that Mr Munwai did not report to Ms Ngobeni or to Mr Manzi
during the period in question. That is not an admission that he did not report for
duty at all. His case is that he reported to Mr Mundalamo, the Assistant Manager:
Cemeteries, until Mr Mundalamo left the Municipality’s employ in 2021 and to
human resources and Mr Mahlaba thereafter.
[25] The affidavits of Ms Ngobeni and Mr Manzi establish that Mr Munwai did not
report to either of them. Mr Hlongwane, the Assistant Manager in the Sports and
Recreation Department, says that he never received Mr Munwai as a
subordinate, never acted as his line manager and gave him no instructions. That
evidence establishes where Mr Munwai was not. It does not establish that he
rendered no services to the Municipality at all. The Municipality disputes Mr
Munwai’s account of his alternative reporting arrangement s but the evidence
placed before me does not answer the important parts of that account.
[26] Mr Mundalamo has deposed to a confirmatory affidavit filed by Mr Munwai, in
which he describes himself as the applicant’s former Assistant Manager
which he describes himself as the applicant’s former Assistant Manager
responsible for Cemeteries and confirms the answering affidavit insofar as it
concerns him. The Municipality’s answer, in its supplementary affidavit, is that
reliance on a person who has since resigned is nonsensical because that person
4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
5 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at para 26.
7
himself reported to Ms Ngobeni. That answer, however, constitutes argument. It
does not answer Mr Mundalamo’s confirmation that Mr Munwai reported to him.
[27] The position of Mr Mahlaba is more significant. The Municipality states in its
supplementary replying affidavit deposed to by its Municipal Manager that Mr
Mahlaba has deposed to a confirmatory affidavit in which he expressly stated
that Mr Munwai never reported to him and that the allegation is therefore denied.
However, Mr Mahlaba’s affidavit says nothing of the sort. It appears in the papers
in unsigned and signed form, and in both he deals with the proposed transfer in
October 2020, with Mr Munwai’s concerns about it, with the email of 29 October
2020, and with the fact that the transfer was never finalised. He says nothing
about the period after May 2021 and does not address the allegation that Mr
Munwai reported to him. There is, accordingly, no direct evidence from Mr
Mahlaba answering that allegation.
[28] The memorandum of 25 February 2021 is consistent with Mr Munwai’s version.
It is a contemporaneous document, on the Municipality’s own letterhead and
addressed to an Executive Director, in which he stated that pending resolution of
his reporting line, he would report to human resources. There is no evidence that
the Municipality rejected that arrangement or directed him elsewhere.
[29] The disciplinary proceedings of March 2021 do not establish that Mr Munwai was
rendering services. They do show that the Municipality remained in
communication with him during the period in which it says he had ceased
reporting altogether. That the charges concerned earlier conduct does not
answer that narrower point.
[30] A further evidential gap emerged in argument. Asked to identify the work Mr
Munwai was required to perform and the output by which his alleged non-
performance could be tested, counsel for the Municipality described his duties in
general terms as work on the ground in the cemeteries. Mr Munwai’s own
general terms as work on the ground in the cemeteries. Mr Munwai’s own
evidence, which the affidavits do not dispute, is that he was a Senior Engineering
Technician who drafted bid specifications, evaluated projects, took part in bid
adjudication, and managed contracts and invoicing. The significance of the
exchange is not what counsel said. It is that the Municipality’s affidavits do not
8
identify the work that ought to have been performed, any particular task left
undone, or any output whose absence would show that no services were
rendered.
[31] The Municipality’s own conduct adds to the difficulty. It remunerated Mr Munwai
for almost three years. It never disciplined him for absence. It never terminated
his employment. It began to investigate only after a newspaper report and three
days after he had resigned. Its own investigators found that the systems intended
to monitor attendance had failed. None of that shows that Mr Munwai rendered
services, but it does make it harder to draw the inference the applicant asks for,
that throughout the period he rendered none.
[32] Mr Munwai’s version is not without difficulty. The investigation report records that
he told the investigators he had never worked since 2020. He disputes having
been interviewed as the report suggests and says he received a telephone call
after he had res igned and neither investigator has confirmed the report on
affidavit. His papers identify no work product generated during the period and he
accepts that from May 2021 he had no office. Those matters weaken his account
of events but do not render it so far -fetched or clearly untenable that it may be
rejected on the papers. His version of his reporting arrangements is detailed,
supported in material respects by contemporaneous documents, and
unanswered where it matters most.
[33] The dispute was also foreseeable. Mr Munwai had denied liability well before
these proceedings were instituted. The Municipality, nevertheless, elected
motion proceedings and sought final relief on a factual premise that it knew was
contested.
[34] The Municipality has therefore not established on these papers that Mr Munwai
rendered no services between October 2020 and his resignation. That is the
factual premise upon which the declarations and the claim for repayment
depend. Without it, neither can succeed.
depend. Without it, neither can succeed.
[35] I have considered the discretion under rule 6(5)(g) of the Uniform Rules of Court
to refer a disputed issue to oral evidence or trial. Neither party sought such a
referral. The dispute was reasonably foreseeable when the Municipality chose
9
motion proceedings, and no basis was advanced for the Court to exercise the
discretion of its own accord. A referral would also prolong an interim restraint
which has prevented Mr Munwai from accessing his pension benefit since
September 2025. In those circumstances I decline to order one.
[36] This conclusion is not a finding that Mr Munwai did render services during the
period in question. I make no such finding. The evidence in these motion
proceedings does not permit a final finding either way.
Would The Municipality Have Been Entitled To Repayment?
[37] The Municipality nevertheless argued that proof of non- performance would
necessarily entitle it to repayment under the principle of “no work, no pay.” The
principle reflects the reciprocal obligations under a contract of employment and
may justify the withholding of remuneration where services are not tendered.
6 It
does not follow without further analysis that remuneration already paid over an
extended period is recoverable merely by invoking that principle.
[38] The founding affidavit also speaks of payment under a mistaken belief and of
unjust enrichment. Those are conceptually distinct bases of recovery with their
own requirements. Because the foundational fact of complete non- performance
has not been established and because neither alternative cause of action was
developed in a manner that requires determination, it is unnecessary to decide
whether either could otherwise have sustained recovery.
[39] Pension benefits enjoy statutory protection. Section 37A(1) of the Act provides,
subject to specified statutory exceptions, that a benefit provided for in the rules
of a registered fund may not be reduced, transferred, ceded, pledged or
hypothecated, or at tached or subjected to execution under an order of court.
Section 37A(3) recognises a reduction effected under section 37D as one such
exception.
6 Coin Security (Cape) (Pty) Ltd v Vukani Guards and Allied Workers’ Union 1989 (4) SA 234 (C)
6 Coin Security (Cape) (Pty) Ltd v Vukani Guards and Allied Workers’ Union 1989 (4) SA 234 (C)
at 239I-240A and Mpanza v Minister of Justice and Constitutional Development and Correctional
Services (2017) 38 ILJ 1675 (LC) at para 32.
10
[40] Section 37D is therefore an exception to the general protection afforded to
pension benefits. The Supreme Court of Appeal has held that such exceptions
are to be interpreted restrictively, particularly where the general rule protects a
class of persons whom the Legislature has considered worthy of protection.
7
[41] In its current form, section 37D(1)(b) permits a registered fund to deduct an
amount due by a member to an employer in respect of compensation for damage
caused to the employer by reason of the member’s theft, dishonesty, fraud or
misconduct, where the member has admitted liability in writing or judgment has
been obtained against the member, and to pay that amount to the employer from
a benefit payable in terms of the fund’s rules.8
[42] The written admission or judgment is therefore an additional requirement. The
judgment contemplated by the subsection must establish liability for
compensation in respect of damage caused by conduct of the character
described in the section. A money judgment arising on a different footing does
not, merely because it exists, satisfy that requirement.
[43] A judgment merely declaring that Mr Munwai rendered no services and ordering
repayment of remuneration would not, without more, satisfy the section. Non-
performance or absence from work does not, without an additional dishonest
7 Absa Bank Ltd v Burmeister [2004] ZASCA 16; 2004 (5) SA 595 (SCA) at para 14.
8 The current formulation of section 37D(1)(b) reads:
“(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
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) …”.
11
element, establish damage caused by theft, dishonesty, fraud or qualifying
misconduct.
[44] In South African Broadcasting Corporation SOC Ltd v South African
Broadcasting Corporation Pension Fund, 9 this Division, following Moodley v
Scottburgh/Umzinto North Local Transitional Council,10 held that “misconduct” in
this context denotes intentional conduct containing an element of dishonesty and
that negligence is insufficient. The mere absence or failure to render services
does not, without more, therefore establish dishonest misconduct for purposes
of section 37D.
[45] The Municipality does, however, allege more than absence. Its founding papers
allege that Mr Munwai submitted falsified or forged attendance registers in order
to mislead the Municipality into paying him and that he did so with an intention to
deceive or defraud it. The question is, however, whether the allegation has been
established.
[46] The first difficulty is one of both period and completeness. The investigation
report records that the Leave Section had four timesheets belonging to Mr
Munwai and that the four attendance registers obtained from it bore four different
checking signatures. The four registers annexed to the founding papers are for
January 2022, May 2022, November 2022, and April 2023. Yet the report treats
the period of the allegedly fraudulent registers as extending from January 2022
to May 2023. The evidential material, therefore, comprises four isolated months
within that period, not a continuous set of registers. In any event, the claim
commences in October 2020, and the papers do not explain what allegedly
induced the payments made before January 2022.
[47] There is also no evidence identifying the person whose signature appears under
“checked by” on the registers. Mr Munwai does not deny his own signature as
compiler but says that he does not know who supplied the checking signature.
9 South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation
9 South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation
Pension Fund 2019 (4) SA 608 (GJ) at para 81.
10 Moodley v Scottburgh/Umzinto North Local Transitional Council 2000 (4) SA 524 (D) at 532C-
E.
12
No handwriting or other forensic evidence identifies the signatory. The criminal
investigation instituted by the Municipality was ultimately closed as undetected.
[48] Furthermore, the necessary causal connection between the alleged falsification
and the payments has not been established. In argument, counsel for the
Municipality accepted that payment of Mr Munwai’s salary was not dependent
upon submission of a monthly t imesheet. He submitted that the Municipality’s
primary case was that remuneration followed from the reciprocal obligations
under the employment contract. Later in argument it was submitted that the
allegedly false registers nevertheless constituted representations which induced
continued payment. The papers do not establish that causal link. They do not
identify who received the registers, what payroll process they triggered, or that
any particular payment was made because of them. On this evidence, I cannot
find that the Municipality’s alleged loss was caused by the alleged falsification.
[49] Finally, the evidence does not permit a finding on motion that Mr Munwai
committed fraud. It is trite that fraud will not lightly be inferred, particularly on
affidavit.
11 The investigation report describes the registers as fraudulent, but
neither investigator has deposed to an affidavit in these proceedings. Mr Munwai
disputes the relevant interaction with the investigators, and the identity of the
person who supplied the checking signatures remains unknown. The report and
the unexplained signatures raise questions requiring answers; they do not,
without more, justify a final finding that Mr Munwai forged signatures or
perpetrated a fraud upon the Municipality.
[50] It follows that the Municipality has not established the dishonest conduct and
causation required to bring the claim within section 37D. Had the Court merely
granted a money judgment on the basis that no services were rendered, without
granted a money judgment on the basis that no services were rendered, without
a finding that the l oss was caused by theft, dishonesty, fraud or qualifying
misconduct, that judgment would not by itself satisfy section 37D.
11 Loomcraft Fabrics CC v Nedbank Ltd 1996 (1) SA 812 (A) at 817G-H and 822H-I; and Prinsloo
NO v Goldex 15 (Pty) Ltd 2014 (5) SA 297 (SCA) at paras 16-17.
13
The Relief Sought Against The Fund
[51] There is a further difficulty with the consequential order sought against the Fund.
It is unnecessary to determine the full extent of a court’s power in relation to a
deduction under section 37D, because the statutory foundation for any deduction
has not been established in this case.
[52] My view in short is that section 37D provides that a registered fund may make
the deduction. In Highveld Steel and Vanadium Corporation Ltd v Oosthuizen,
12
the Supreme Court of Appeal recognised a fund’s discretion to withhold a benefit
pending determination of the member’s liability. In Hansen + Genwest (Pty) Ltd
v Corporate Selection Umbrella Retirement Fund No 2
13 this Division cautioned
that it does not follow merely from that discretion that section 37D or a fund rule
itself supplies a basis upon which a court may compel a fund to act. The Fund’s
statutory discretion therefore cannot simply be treated as an automatic execution
mechanism following upon any money judgment.
[53] In this matter, the Fund’s rules are not before the Court. Nor is there a decision
by the Fund to deduct or refuse to deduct, which is under challenge. The Fund’s
statement that it would not oppose an application which complied with section
37D is not an exercise of its discretion to make a deduction and is not consent to
the payment order sought. These circumstances provide a further reason not to
make the consequential order against it.
Declaratory Relief And The Interim Order
[54] The declaratory relief suffers the same fate. The declarations sought require final
findings that Mr Munwai failed to report for duty, rendered no services, or
absconded. Those are precisely the facts which remain genuinely disputed on
the affidavits. For the reasons already given, final declaratory relief cannot be
granted.
12 Highveld Steel & Vanadium Corporation Ltd V Oosthuizen 2009 (4) SA 1 (SCA) at paras 19-
20.
12 Highveld Steel & Vanadium Corporation Ltd V Oosthuizen 2009 (4) SA 1 (SCA) at paras 19-
20.
13 Hansen + Genwest (Pty) Ltd v Corporate Selection Umbrella Retirement Fund No 2 2023 JDR
0380 (GJ) at para 12.
14
[55] Paragraph 2.1 of the order granted in Part A was to operate pending finalisation
of Part B. Part B is now finally determined. For certainty, paragraph 2.1 will be
expressly discharged. The costs of Part A were ordered to be costs in the cause.
Those costs accordingly follow the outcome of Part B. The remainder of the Part
A order is unaffected.
[56] Costs should follow the result. Part B concerned a claim exceeding R 2.5 million,
a substantial motion record and moderately complex issues concerning section
37D and pension benefits. Costs on scale B are appropriate for both parts of this
application.
[57] In the result, the following order is made:
(a) Part B of the application is dismissed.
(b) Paragraph 2.1 of the order granted by Kruger AJ on 19 September 2025
in Part A of this application is discharged.
(c) The applicant is ordered to pay the second respondent’s costs of Part A
and Part B of this application on scale B.
____________________
C CARELSE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
15
Appearances
For the Applicant : EN Sithole
Instructed : Madhlopa & Thenga Inc
For the First Respondent : Unrepresented
For the Second Respondent : R Nelwamondo
Instructed : Madima Attorneys Inc
Date of hearing : 25 May 2026
Date of Judgement : 25 August 2026