South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation Pension Fund and Others

• Jurisdiction: South Africa
• Citation: 2019 (4) SA 608 (GJ)

South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation Pension Fund and Others
2019 (4) SA 608 (GJ)

2019 (4) SA p608

Citation	2019 (4) SA 608 (GJ)
Case No	17/29163
Court	Gauteng Local Division, Johannesburg
Judge	Maier-Frawley AJ
Heard	January 18, 2019
Judgment	January 18, 2019
Counsel	T Motau SC for the applicant.; P van der Berg SC for the first respondent.; A Bester SC (with A Ayayee) for the second respondent.

Flynote : Sleutelwoorde

Pension — Benefits — Withholding — Power of fund to withhold payment of benefits pending determination of member's liability to employer for compensation for damage caused by reason of theft, dishonesty, etc — Whether, for purposes of interim interdictory relief compelling fund to withhold benefits pending employer's action for recovery of losses, applicant H employer established prima facie case for member's liability — Pension Funds Act 24 of 1956, s 37D(1)(b)(ii).

Headnote : Kopnota

In Highveld Steel & Vanadium Corporation Ltd v Oosthuizen 2009 (4) SA 1 (SCA) it was held that, while s 37D(1)(b)(ii) of the Pension Funds Act 24 of 1956 [*] (the PFA) only referred to the 'deduction' of pension benefits, in I order to give effect to the subsection's purpose — which is to protect an

2019 (4) SA p609

employer's right to recovery of money misappropriated from it — its wording A must be interpreted to include a pension fund's power to withhold payment of a member's benefits pending the determination or acknowledgment of such member's liability.

This case concerned an application for interdictory relief — premised on s 37D(1)(b)(ii) of the PFA, read with the rules of the pension fund in B question — sought by an employer (the SABC) against the first-respondent pension fund (the Fund) to withhold the pension benefits of its former employee, Mr Motsoeneng (the second respondent), until the determination of an action that the SABC intended instituting against him for damages caused by his misconduct. At the request of the SABC, the Fund had agreed to withhold payment pending the outcome of such an application, which the SABC subsequently launched on an urgent basis during August 2017. C This application was, however, not prosecuted to finality, culminating in the present application (in which only the interdictory relief was considered and not the other relief requested in the application).

The primary issue was whether, for the purposes of entitling it to the interdictory relief it sought, the SABC had established a prima facie case that Mr Motsoeneng D may be liable to it in the light of the allegations against him. These were his unlawful acceptance and retention of an unauthorised and unwarranted success fee (paid to him by the SABC) in the amount of R11 508 549,12; and various instances of misconduct (identified by the Public Protector) leading to the SABC suffering R10 235 452,20 in losses. Although both opposed the application, neither the Fund nor Mr Motsoeneng E disputed the alleged misconduct but instead raised a number of procedural challenges, which the judge, in her discretion, disregarded (see [44]).

Held

It was so that the SABC filed amended notices of motion without observance of the F rules of court, and that it filed its supplementary affidavit without leave of the court first having been obtained therefor. The court, however, had an overriding discretion to overlook the procedural irregularities complained of. There was no real prejudice that Mr Motsoeneng or the Fund would suffer if the case were to be determined on the basis of the SABC's notice of motion, including its supplementary founding affidavit and all other affidavits filed in the matter. (Paragraph [44].) G

On a reading of these, and in view of the glaring absence of any serious challenge to the SABC's allegations of intentional and dishonest misconduct against Mr Motsoeneng, the SABC had established a prima facie case that Mr Motsoeneng may be liable to it for repayment of the success fee. The evidence put up by the SABC was also sufficient to prima facie point to H Mr Motsoeneng's intentional misappropriation of public funds, and it therefore also enjoyed a prima facie right to recover the losses it had incurred in respect of its other claim. Accordingly, the SABC had established a prima facie right of recovery within the meaning of s 37D(1)(b) of the Act for purposes of entitling it to interim interdictory relief. (Paragraphs [89] and [97].) I

2019 (4) SA p610

The A SABC had also satisfied the other requirements to qualify for interim relief: it had shown irreparable harm if the interdict were not granted (see [102]); and that the balance of convenience favoured the granting of interdictory relief (see [106]). Accordingly, the SABC had established its entitlement to an interdict restraining the Fund from paying out the whole of the pension B benefit standing to the credit of Mr Motsoeneng (see [108]).

Cases cited

Absa Bank Ltd v Burmeister and Others 2004 (5) SA 595 (SCA) ([2005] 3 All SA 409): referred to

Aeroquip SA v Gross and Others [2009] 3 All SA 264 (GNP): dictum in C para [6] applied

Anglo Operations Ltd v Sandhurst Estates (Pty) Ltd 2007 (2) SA 363 (SCA) ([2007] 2 All SA 567; [2006] ZASCA 118): dictum in para [32] applied

Annex Distribution (Pty) Ltd and Others v Bank of Baroda 2018 (1) SA 562 (GP): dictum in para [9] applied

Aurecon South Africa (Pty) Ltd v Cape Town City 2016 (2) SA 199 (SCA) D ([2015] ZASCA 209): referred to

Betlane v Shelly Court CC 2011 (1) SA 388 (CC) (2011 (3) BCLR 264; [2010] ZACC 23): dictum in para [30] applied

Boxer Superstores Mthatha and Another v Mbenya 2007 (5) SA 450 (SCA) ((2007) 28 ILJ 2209): dictum in para [4] applied

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) E (2000 (5) BCLR 465; [2000] ZACC 3): referred to

Charlton v Tongaat-Hulett Pension Fund [2006] 2 BPLR 94 (D): applied

Crossfield & Son Ltd v Crystallizers Ltd 1925 WLD 216: referred to

Democratic Alliance v South African Broadcasting Corporation SOC Ltd [2017] 1 All SA 530 (WCC): dictum in paras [104] – [106] applied

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) F (2016 (5) BCLR 618; [2016] ZACC 11): referred to

Eke v Parsons 2016 (3) SA 37 (CC) (2015 (11) BCLR 1319; [2015] ZACC 30): dictum in para [39] applied

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): referred to

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others G 1996 (2) SA 621 (CC) (1996 (4) BCLR 441; [1996] ZACC 27): dictum in para [3] applied

Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): applied

Highveld Steel & Vanadium Corporation Ltd v Oosthuizen 2009 (4) SA 1 (SCA): H dictum in paras [19] – [20] applied

Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235 (CC) (2005 (1) SACR 111; 2004 (10) BCLR 1009; [2004] ZACC 5): referred to

Lagoon Beach Hotel (Pty) Ltd v Lehane NO and Others 2016 (3) SA 143 (SCA): I referred to

Minnaar v Oberholzer Liquor Licensing Board and Another 1955 (1) SA 681 (T): referred to

Molusi and Others v Voges NO and Others [2015] 3 All SA 131 (SCA) ([2015] ZASCA 64): dictum in para [20] applied

Moodley v Scottburgh/Umzinto North Local Transitional Council and Another J 2000 (4) SA 524 (D): applied

2019 (4) SA p611

Nissan South Africa (Pty) Ltd v Marnitz NO and Others (Stand 186 Aeroport (Pty) Ltd Intervening) A 2005 (1) SA 441 (SCA) ([2006] 4 All SA 120): compared

Nkengana and Another v Schnetler and Another [2011] 1 All SA 272 (SCA) ([2010] ZASCA 64): dictum in para [10] applied

Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D): referred to B

Pangbourne Properties Ltd v Pulse Moving CC and Another 2013 (3) SA 140 (GSJ): referred to

Passenger Rail Agency of South Africa v Swifambo Rail Agency (Pty) Ltd 2017 (6) SA 223 (GP): dictum in para [15] applied

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others C 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): referred to

Price Waterhouse Coopers Inc and Others v Van Vollenhoven NO and Another [2010] 2 All SA 256 (SCA): dictum in para [7] applied

Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City) (Pty) Ltd; D LMG Construction (City) (Pty) Ltd v Ranch International Pipelines (Transvaal) (Pty) Ltd and Others 1984 (3) SA 861 (W): referred to

S v Graham 1975 (3) SA 569 (A): compared

Sentinel Retirement Fund and Another v Masoanganye [2018] ZASCA 126: referred to E

Setlogelo v Setlogelo 1914 AD 221: referred to

Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA) ([1999] 4 All SA 331): referred to

SOS Support Public Broadcasting Coalition and Others v South African Broadcasting Corporation SOC Ltd and Others [2017] ZAGPJHC 289: dictum in paras [21] – [23] applied

South African Broadcasting Corporation Soc Ltd and Others v Democratic Alliance and Others F 2016 (2) SA 522 (SCA) ([2015] 4 All SA 719; [2015] ZASCA 156): applied

Szedlacsek v Szedlacsek and Others 2000 (4) SA 147 (E): dictum at 149C – H applied

Take and Save Trading CC and Others v Standard Bank of SA Ltd 2004 (4) SA 1 (SCA) ([2004] 1 All SA 597): dictum in para [3] applied G

TEK Corporation Provident Fund and Others v Lorentz 1999 (4) SA 884 (SCA) ([1999] 4 All SA 297; [1999] ZASCA 54): referred to

Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A): dictum at 278F applied

Tshwane City v Afriforum and Another 2016 (6) SA 279 (CC) (2016 (9) BCLR 1133; [2016] ZACC 19): applied H

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