Mafube Local Municipality v Municipal Workers Retirement Fund (2672/2021) [2021] ZAFSHC 311 (3 December 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 2672/2021

In the matter between:

MAFUBE

LOCAL MUNICIPALITY

Applicant

and

THE

MUNICIPAL WORKERS RETIREMENT FUND Respondent

JUDGMENT BY: MOLITSOANE, J

HEARD ON:

19 NOVEMBER 2021

DELIVERED ON:

The judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date and time for hand down is deemed to be 03 December 2021 at 11:30.

[1] The applicant seeks leave to appeal to the Full Court of this Division or the Supreme Court of Appeal the whole of the judgment of this court and order delivered on 9 September 2021.

[2] With the advent of the Superior Courts Act 10 of 2013, section 17 now regulates the test to be applied in an application for leave to appeal. The relevant provisions of section 17(1) provide as follows:

“(1) Leave to appeal may only be given where the judge or judges

concerned are of the opinion that

(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;”

[3] Section 17(1) requires that an applicant seeking leave to appeal must convince the court that there is a reasonable prospect of success in the appeal and not merely a possibility thereof.

[4] The judgment is assailed on the following grounds:

(a) That this court erred in refusing the applicant a postponement;

(b) That this court erred by falling to appreciate the applicant’s apprehension with its own contribution list that was submitted to the respondent’s Fund;

(c) That this court erred by failing to appreciate the applicant’s responsibility as a public entity to ensure that it does not make payments that are unlawful, irregular and wasteful, by requiring the opportunity to properly debate the amounts allegedly due.

[5] In the afternoon of 8 September 2021, the day before the hearing of this application, a substantive application for a postponement was filed by the applicant. It is important to note that the applicant in its answering affidavit filed on 12 August 2021 intimated then already, that it intended to apply for a postponement of these proceedings. A postponement cannot be claimed as of right and is not there for the taking.

[6] A party seeking a postponement of the proceedings must do so timeously, as soon as the circumstances which might justify such an application becomes known to the applicant[1]. The applicant in this case knew at least by 12 August 2021 that it intended to apply for a postponement. It however waited for almost a month to bring a substantive application for a postponement. No plausible reason was given why the application for a postponement was only launched on 9 September 2021, a day preceding the application.

[7] The applicant sought a postponement until the calculations and debatement of its own accounts were complete. The evidence reveal that the applicant has not made payments of the pension funds and/or interest thereon as far back as 2015.These monies were deducted from the employees of the applicant and members of the respondent. In my view the members of the respondent cannot be prejudiced by the internal problems of the applicant as it seems, according to the applicant, that is the reason for non-payment. Anyway how does the applicant justify this non-payment over a period of 6 years.

[8] The court exercises a discretion when deciding whether or not to grant a postponement. No contention has been made that this court did not act judiciously in the exercise of its discretion in order to deny a postponement. In my view this ground has no merit.

[9] What remains undisputed is that the applicant is indebted to the respondent. It only seems that the concern of the applicant is that it seeks to verify the information contained in the documents it supplied to the respondent. That this court failed to appreciate the applicant’s apprehension with its own contribution list cannot hold water. The lists upon which the monies due are calculated were prepared and furnished by the applicants to the respondent. Of importance, is that the applicant had raised no defence to the claim. This calls for one to ask oneself the basis upon which another court, differently constituted, would find that there are prospects of success on appeal.

[10] The assertion that this court failed to appreciate the applicant’s responsibility as a public entity to ensure that it does not make payments that are irregular by asking time to debate the amounts owed is misconceived. Over a period of six years were the amounts outstanding. The applicant does not dispute its indebtedness to the respondent. The indebtedness of the applicant is calculated from the schedules it furnishes to the respondent. The applicant does not seem to appreciate the obligations of the respondent towards its members. It is not only about the applicant. This ground of appeal has no merit.

[11] I am satisfied that this application has no merits and no other court would arrive at a different finding to the one of this court. I make the following order:

ORDER

1. The application for leave to appeal is dismissed.

2. The applicant is ordered to pay the costs of this application on party and party scale.

3. The costs shall include the costs of employment of one Counsel.

P.E MOLITSOANE, J

On behalf of the Applicant: Adv. P. van den Berg SC

Adv. H Drake

Instructed by:

McIntyre and Van der Post Attorneys

BLOEMFONTEIN

On behalf of the Respondent: Adv. LA Roux

Instructed by:

Peyper Attorneys

[1] Erasmus, Superior Court Practice, Vol 82, D1-522A.