South Africa Judgment

North Gauteng High Court, Pretoria

Mashamaite v Morgan Beef Investments (PTY) LTD and Others (28767/17) [2019] ZAGPPHC 31 (20 February 2019)

Labour Law Civil Procedure Provident Fund Contributions Arrear Contributions Late Payment Interest Pension Funds Act Compliance

Citation: [2019] ZAGPPHC 31
Status: Judgment
Jurisdiction: South Africa
Court: North Gauteng High Court, Pretoria
Panel: PG Seleka
Case number: 28767/17

More details

Court: North Gauteng High Court, Pretoria
Panel: PG Seleka
Case number: 28767/17

On this page

Professional case brief

Research organized from the available case record

Source document

Holding and result

The court found that the first respondent failed to provide credible evidence that provident fund deductions from the applicant's salary were paid to Liberty or Discovery Life. Liberty's records showed only employer contributions, and the respondent's own annexure B did not account for the missing member contributions. The respondent's explanations for its failure to respond to the applicant's queries and its delay in filing affidavits were unconvincing and unsupported by the facts. The respondent also failed to substantiate the existence of a Discovery Life policy. In the absence of evidence that the salary deductions were paid to the fund, the applicant was entitled to relief for arrear contributions and late payment interest under section 13A(7) of the Pension Funds Act. Costs were awarded against the first respondent on an attorney and client scale due to its conduct.

Court disposition

Application granted in favour of the applicant.

Orders

The first respondent is ordered to pay to the second respondent an amount of R26,636.39 as arrear contributions for the applicant's provident fund, together with late payment interest.
The second respondent is ordered to compute the late payment interest on the said amount of R26,636.39 within 14 days of service of this order on the second respondent.
The first respondent is to pay the said amount within seven (7) days of receipt of interest calculations from the second respondent.
The first respondent is ordered to pay the costs of this application.

Material facts

Parties

Mokete Herbert Mashamaite

Applicant

Morgan Beef Investments (PTY) LTD

Respondent Counsel: Mr Lauw

Liberty Corporate

Respondent

M V Makelaars CC

Respondent

Amounts and remedies

Arrear Provident Fund Contributions: ZAR 26,636.39

Procedural history

Posture

Urgent Application / Final Determination on Amended Notice of Motion

Questions and positions

Legal issues

01
Whether the first respondent paid the applicant's provident fund salary deductions to the fund administered by the second respondent.
02
Whether the applicant is entitled to arrear contributions and late payment interest under section 13A(7) of the Pension Funds Act.
03
Whether the first respondent provided sufficient evidence of payment to Liberty or Discovery Life.
04
Whether the applicant is entitled to costs on an attorney and client scale.

Party arguments

Applicant: The applicant contends that monthly provident fund deductions were made from his salary for over four years, but Liberty's records show only employer contributions and no member contributions. After resignation, he received no assistance from the first respondent and was forced to instruct attorneys to obtain statements from Liberty, which confirmed the absence of member contributions. The applicant asserts that the first respondent failed to pay over his salary deductions to Liberty and did not account for their destination, despite repeated requests. He denies any knowledge or consent regarding a Discovery Life policy and disputes the authenticity of documents purporting to show such membership.
Respondent: The first respondent alleges that all provident fund deductions were paid to Liberty and Discovery Life, relying on its own calculations in annexure B. It claims delays in responding were due to seeking legal representation and attempts to obtain fund rules. The respondent asserts that the applicant was a member of a group life policy with Discovery, but provides no documentation from Discovery to substantiate this. The respondent admits uncertainty regarding whether both employer and employee were obliged to contribute and fails to explain why Liberty's records do not reflect member contributions.

Court’s reasoning

Legal principles

01
Pension Funds Act, 24 of 1956 (as amended)

An employer is obliged to pay over provident fund deductions made from an employee's salary to the relevant fund in accordance with section 13A(7) of the Pension Funds Act.
02
Mashamaite v Morgan Beef Investments (PTY) LTD and Others (28767/17) [2019] ZAGPPHC 31

Where an employer fails to account for or pay over deductions, the employee is entitled to relief for arrear contributions and late payment interest.
03
Mashamaite v Morgan Beef Investments (PTY) LTD and Others (28767/17) [2019] ZAGPPHC 31

The burden of proof rests on the employer to demonstrate that deductions were properly paid to the fund.

Ratio, limits and disposition

Ratio decidendi

The court found that the first respondent failed to provide credible evidence that provident fund deductions from the applicant's salary were paid to Liberty or Discovery Life. Liberty's records showed only employer contributions, and the respondent's own annexure B did not account for the missing member contributions. The respondent's explanations for its failure to respond to the applicant's queries and its delay in filing affidavits were unconvincing and unsupported by the facts. The respondent also failed to substantiate the existence of a Discovery Life policy. In the absence of evidence that the salary deductions were paid to the fund, the applicant was entitled to relief for arrear contributions and late payment interest under section 13A(7) of the Pension Funds Act. Costs were awarded against the first respondent on an attorney and client scale due to its conduct.

Obiter and limits

It is odd that an employer would subscribe employees to a fund for which it does not possess the rules.
The employer's failure to understand or clarify the fund's documentation demonstrates a lack of diligence and care.
The respondent's attempt to rely on unsubstantiated documents from Discovery Life is insufficient to discharge its evidentiary burden.

Court disposition

Application granted in favour of the applicant.

The first respondent is ordered to pay to the second respondent an amount of R26,636.39 as arrear contributions for the applicant's provident fund, together with late payment interest.
The second respondent is ordered to compute the late payment interest on the said amount of R26,636.39 within 14 days of service of this order on the second respondent.
The first respondent is to pay the said amount within seven (7) days of receipt of interest calculations from the second respondent.
The first respondent is ordered to pay the costs of this application.

Source and reliance status

North Gauteng High Court, Pretoria

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Source document Download judgment PDF

Judgment reading view

Judgment text

The complete available source text.

Source document

North Gauteng High Court, Pretoria

Judgment

[2019] ZAGPPHC 31

Download original filesPDF formatREPUBLIC

OF SOUTH AFRICAIN THE HIGH COURT OF SOUTH AFRICA ,GAUTENG DIVISION, PRETORIACASE NO: 28767/17NOT

REPORTABLENOT OF INTEREST TO OTHER JUDGESREVISEDDATE:20/02/2019In the matter between:-MOKETE

HERBERT MASHAMAITE

ApplicantandMORGAN BEEF INVESTMENTS (PTY) LTD

First Respondent(Registration No: 2001/023826/07LIBERTY

CORPORATE

Second RespondentM V

MAKELAARS CC

Third RespondentJUDGMENTSELEKA AJ:[1] The applicant in this matter is a former employee of the first respondent (Morgan Beef Investments (Pty) Ltd), formerly

known as Morgan Abattoir (Pty) Ltd. The applicant was employed by the first respondent from 7 January 2011 to September 2016 when he resigned from his employment with the first respondent as a Blackman.[2]He pursues the present application in terms of an amended notice of motion, which was further amended during argument to abandon paragraph 4 thereof. The relief now sought in the notice of motion (as amended) reads:"1. The second respondent be ordered to compute the late payment interest on the amount of R26 636.39 by the first respondent in terms of Section 13A(7) of the Pension Funds Act, 24 of 1956 (as amended), within fourteen (14) days of receipt of the Court Order.2.The second respondentisordered to transmit to the first respondent its computations in prayer 1 above, within three (3) days of completing it.3.The first respondent is ordered to pay to the second respondent an amount of R26 636.39asarrear contributions together with late payment interest as computed in accordance with prayer 1 above, within seven (7) days of receiving the computations from the second responden.t4.5.That the first respondent be ordered to pay the costs of the application on attorney and client scale."[3]This relief is sought against the backdrop of the facts that follow.[4] In May 2012, and apparently by virtue of his employment with the first respondent, the applicant became a member of a

provident fund administered by the second respondent ("Liberty"). To that end, monthly deductions were made from the applicant's salary for a period of 4 years and 4 months, from May 2012 to September 2016. These deductions were described on his salary slip as"PROVIDENT FUND".The amount of deductions started at R438.37 and increased annuallyto more than R600.00. In view of the terminology used by the first respondent to define the deductions, i.e. provident fund, the applicant understood that the deductions were being made to pay for his member contribution to the provident fund.[5]Following his resignation, the applicant made enquiries, on two occasions, with the first respondent regarding his provident pay-out, but received no assistance. He then enlisted the services of his attorneys of record to submit a claim, on his behalf, directly with Liberty. On 6 February 2017, his attorneys addressed a letter to Liberty requesting a statement of balances of the applicant's pension benefits (p24). Liberty responded by letter dated 7 February 2017 to which was attached what Liberty referred to as"member investment summary for the period 03/02/2017 to 06/02/2017".The document shows the closing investment value as R17 100.63 (p26). It bears the scheme name as "Morgan Abattoir (Pty) Ltd, the scheme number: 0030262701, the member name: Mr MH Mashamaite (being the applican)t, and member

number: M203160B.[6]On 10 February 2017, the applicant's attorneys send a letter to the third respondent (MV Makelaars) in which they complained that the provident fund benefits were far lower than what the applicant had contributed, and requested the third respondent to account on certain information (p31).[7]The third respondent replied and provided some information which included a letter from Liberty dated 7 March 2017, to which was attached another member investment summary, but for the period 01/05/2012 to 30/09/2016, showing a closing investment value of R16 469.08, as well as a statement in relation thereto (p35).[8]The member investment summary for the period 3/2/2017 to 6/2/2017, with a closing value of R17 100.63, shows the investment portfolio as Liberty Institutiona l Money Market Fund, comprising contributions only from the employer recorded as"Employer AVG: R1 151.11"and"Employer Contributions: R15 949.52"(p26).[9]The member investment summary for the period 1/5/2012 to 30/9/2016, with a closing value of R16 469.08, shows three (3) investment portfolios namely Multi Manager Growth, Liberty Institutional Money Market Fund and Liberty Stable Growth Fund, comprised of contributions in the same manner as above, namely:"Employer AVG: R1 128.80"and"Employer Contributions: R15 340.28"(p35).[10]None of these documents show contributions by the employee, i.e. the

applicant, even though they both reflect him as a member, with member number M203160B.[11]It was this realisation that triggered the dispute in the present application, with the applicant contending that the provident fund deductions from his salary had not been paid to Liberty and, therefore, demanding to know where were the deductions went to (FA14/19 & p47).[12]The issue was raised with the first respondent by letter dated 1O March 2017. (p47). The response from the first respondent was that the matter has been escalated to its broker and the first respondent will get back to the applicant's attorneys no later than 22 March 2017 (p50).[13]However, the first respondent failed to respond, necessitating another letter from the applicant's attorneys dated 24 March 2017, complaining of the first respondent's failure to respond and affording it a further time to respond, until 28 March 2017. The applicant's attorneys warned that another failure to respond would leave the applicant with no option but to take legal action (p52).[14]There seems to have been no response again from the first respondent.[15]On 5 April 2017, the applicant's attorneys addressed another letter to the first respondent providing it with certain documentation relating to 'member benefits statement as at 1 May 2012' from Liberty, a detailed statement of contributions (which is the same as the second of the two

member investment summaries referred to above for the period 1/5/2012 to 30/9/2016) and copies of two (2) of the applicant's payslips reflecting provident fund deductions (p54). The applicant's attorneys requested to be provided with the name of the fund into which the provident fund deductions were paid. There seems also to have been no response to this letter from the first respondent (FA16/24).[16]In its answering affidavit, and as explanation for the failure to respond, the first respondent simply states that it was seeking legal representation, as it was entitled to (AA105/45). However, this response fails to explain the first respondent's failure torespond as it had undertaken to do"no later than 22 March 2017"and the continued silence thereafter.(17) In any event, the explanation that the first respondent was already seeking legal representation during the correspondence in March/April 2017, lacks credibility when read with the allegation in paragraph 7 of its own answering

affidavit, which shows that it was only after the present application had been

instituted that the first respondentmanaged to brief legal representatives on 15 May 2017 regarding the matte.r There is no explanation as to what transpired between March 2017 and this date regarding legal representation that the first respondent says was entitled to see.k[18]Furthermore, the reasons proffered for the late filing of the answering affidavit show that the above allegation cannot be true. On the first respondents version, contact with Liberty and Discovery to obtain information was only made in June 2017 (AA87/11). There is not allegation or evidence tendered to show that steps to obtain information from Liberty and Discovery were taken during the correspondence inMarch/April 2017.[19]Mr Lauw, for the first respondent, submitted during argument that there were attempts by the first respondent before and after the application was instituted to engage with the applicant in order to resolve the matter. However, his submission is not borne out by the facts in the papers.[20]In the papers, the delay in filing the answering affidavit is said to have been caused by the first respondent's failed attempt to obtain the fund rules. It is not said to have been as a result of attempts to amicably resolve the matter with the applicant. In any event, it is odd that the employer would subscribe its employees to a fund of which the employer has no rules.[21]According to the

papers, as appears from the applicant's replying affidavit, settlement discussions between the parties were initiated in July 2017, after the first respondent had filed its answering affidavit (RA221/4-5).[22]The present application was served on the first respondent on 26 April 2017 (p76), after its repeated failure to respond to the applicant's attorneys. On 15 May 2017, the first respondent delivered its notice of intention to oppose and on 27 June 2017 served its opposing affidavit (pp79 & 81). There is no an iota of evidence to show that at any time during this period the first respondent addressed the queries raised by the applicant's attorneys.[23]Only the first respondent opposes the application.[24] In its answering affidavit, the first respondent alleges that the provident fund deductions were indeed paid over to the fund

administered by Liberty and to Discovery Life (p92/19).[25]The first respondent seeks to substantiate this averment by relying on calculations made by it in a document marked "annexure B" (p96/31) . As stated, annexure B is a document generated by the first respondent itself. The document does not originate from Liberty or Discovery and its contents are not confirmed by either of the two entities. More importantly, annexure B simply records the amount of deductions made against the applicant's salary from 2012 to 2016. It contains no explanation as to where the provident fund deductions were paid and why the member investment summary from Liberty does not show contributions by the member. It is also not disclosed who exactly of the first respondent prepared this annexure B and where and how the other figures thereon were derived and accounted for.[26]When I asked Mr Louw why the member's contribution is not reflected in the member investment summary from Liberty, he said that he did not know, but also that his client cannot be expected to interpret Liberty's document. This is indeed an unfortunate response by the employer's representative. The first respondent, as the employer, should have taken the trouble to understand the document and, if necessary, obtain explanations from Liberty that will clarify the position. One can infer from the response that the first respondent did

not care to do so.[27]The first respondent's averments that the applicant became a member of Group Life Insurance Policy with Discovery, are not substantiated. The first respondent has not attached any documentation to show that the applicant was a member of Group Life Insurance Policy with Discovery. The documents marked E1 to E5, to the answering affidavit, fail to prove this averment, as the documents do not bear any reference to Discovery or Discovery Group Life Insurance Policy, are not on Discovery's letterhead and have not been confirmed by Discovery. In reply, the applicant disputes their authenticity on the basis that the documents do not have any letterhead whatsoever to show that they were indeed received from Discovery Life. The applicant further states that he was never advised or consulted by the first respondent on any contribution to Discovery Life (p230/27.5).[28]The only documents provided in the papers with any measure of certainty are those in relation to the provident fund with Liberty. However, those are the documents that show no contribution by the member. Annexure B, furnished by the first respondent, does not explain this anomaly, nor is it explained in the answering affidavit.[29] Further, the first respondent seeks to make averments on how contributions were calculated based on the fund rules, but has failed to provide those rules. The first

respondent correctly acknowledges that it cannot make any submission in regard to the fund rules when it does not have the rules and has not produced them. In any event, the first respondent has not shown anywhere that provident fund deductions made against the applicant's salary were indeed paid over to Liberty.[30]The first respondent's case takes a bizarre twist when the first respondent, whilst contending that payment was made to Liberty, alleges at the same time that there is uncertainty as to whether the provident fund imposed an obligation on both the employer and the employee to make contributions. The first respondent cannot have it both ways. Either the member, i.e. the applicant, made contributions to the provident fund or did not. If he did not make contributions, the question is why did the first respondent continue making deductions from his salary and where did the money go to, if it is not been accounted for in Liberty's own records. The first respondent's allegation and, indeed, contention that the first respondent has paid the provident fund deductions over

to Liberty is irreconcilable with the alleged uncertainty (p103/40).[31]Although the applicant accepts that annexure B may correctly reflect a record of so-called provident fund deductions made against his salary, he contends that annexure B is still deficient as it fails to explain the zero-contribution shown against his name on Liberty's records.[32]The first respondent only makes an allegation that payment was made to Liberty, but has not provided any evidence to show this allegation. It is common cause that the documents from Liberty only show employer contributions. In the absence of evidence to show that provident fund deductions from the applicant's salary were indeed paid over to Liberty, the first respondent's opposition to the relief sought must fail.[33]As regards Discovery life policy, the first respondent's case is a non-starter.Deductions alleged to have been made for this policy are not reflected and/or itemised in the applicant 's payslip. The applicant does not even know whether the policy exists. He was never informed of such policy and never consented to signing up for it. There is no a single trace in the papers of a document from Discovery confirming its existence. As the first respondent is the one who has made the allegation of the existence of this policy, it was incumbent on it to establish its existence. The first respondent has failed to do so.[34] In

the result, I make the following order:34.1The first respondent is ordered to pay to the second respondent an amount of R26 636.39 as arrear contributions for the applicant's provident fund, together with late payment interest.34.2The second respondent is ordered to compute the late payment interest on the said amount of R26 636.39 within 14 days of service of this order on the second respondent.34.3The first respondent is to pay the said amount within seven (7) days of receipt of interest calculations from the second respondent.34.4The first respondent is ordered to pay the costs of this application.PG SelekaACTING

JUDGE OF THE HIGH COURT OF SOUTH AFRICAGAUTENG DIVISION, PRETORIA

Download original files

PDF formatREPUBLIC

OF SOUTH AFRICAIN THE HIGH COURT OF SOUTH AFRICA ,GAUTENG DIVISION, PRETORIACASE NO: 28767/17NOT

REPORTABLENOT OF INTEREST TO OTHER JUDGESREVISEDDATE:20/02/2019In the matter between:-MOKETE

HERBERT MASHAMAITE

ApplicantandMORGAN BEEF INVESTMENTS (PTY) LTD

First Respondent(Registration No: 2001/023826/07LIBERTY

CORPORATE

Second RespondentM V

MAKELAARS CC

Third RespondentJUDGMENTSELEKA AJ:[1] The applicant in this matter is a former employee of the first respondent (Morgan Beef Investments (Pty) Ltd), formerly

affidavit, which shows that it was only after the present application had been

JUDGE OF THE HIGH COURT OF SOUTH AFRICAGAUTENG DIVISION, PRETORIA

PDF format

REPUBLIC

OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA ,

GAUTENG DIVISION, PRETORIA

CASE NO: 28767/17

NOT

REPORTABLE

NOT

OF INTEREST TO OTHER JUDGES

REVISED

DATE:20/02/2019

In the matter between:-

MOKETE

HERBERT MASHAMAITE

Applicant

and

MORGAN BEEF INVESTMENTS (PTY) LTD

First Respondent

(Registration No: 2001/023826/07

LIBERTY

CORPORATE

Second Respondent

M V

MAKELAARS CC

Third Respondent

JUDGMENT

SELEKA AJ:

[1] The applicant in this matter is a former employee of the first respondent (Morgan Beef Investments (Pty) Ltd), formerly

[2]He pursues the present application in terms of an amended notice of motion, which was further amended during argument to abandon paragraph 4 thereof. The relief now sought in the notice of motion (as amended) reads:

[2]

He pursues the present application in terms of an amended notice of motion, which was further amended during argument to abandon paragraph 4 thereof. The relief now sought in the notice of motion (as amended) reads:

"1. The second respondent be ordered to compute the late payment interest on the amount of R26 636.39 by the first respondent in terms of Section 13A(7) of the Pension Funds Act, 24 of 1956 (as amended), within fourteen (14) days of receipt of the Court Order.

2.The second respondentisordered to transmit to the first respondent its computations in prayer 1 above, within three (3) days of completing it.

The second respondent

ordered to transmit to the first respondent its computations in prayer 1 above, within three (3) days of completing it.

3.The first respondent is ordered to pay to the second respondent an amount of R26 636.39asarrear contributions together with late payment interest as computed in accordance with prayer 1 above, within seven (7) days of receiving the computations from the second responden.t

The first respondent is ordered to pay to the second respondent an amount of R26 636.39

arrear contributions together with late payment interest as computed in accordance with prayer 1 above, within seven (7) days of receiving the computations from the second responden.t

5.That the first respondent be ordered to pay the costs of the application on attorney and client scale."

That the first respondent be ordered to pay the costs of the application on attorney and client scale."

[3]This relief is sought against the backdrop of the facts that follow.

[3]

This relief is sought against the backdrop of the facts that follow.

[4] In May 2012, and apparently by virtue of his employment with the first respondent, the applicant became a member of a provident fund administered by the second respondent ("Liberty"). To that end, monthly deductions were made from the applicant's salary for a period of 4 years and 4 months, from May 2012 to September 2016. These deductions were described on his salary slip as"PROVIDENT FUND".The amount of deductions started at R438.37 and increased annuallyto more than R600.00. In view of the terminology used by the first respondent to define the deductions, i.e. provident fund, the applicant understood that the deductions were being made to pay for his member contribution to the provident fund.

"PROVIDENT FUND".

[5]Following his resignation, the applicant made enquiries, on two occasions, with the first respondent regarding his provident pay-out, but received no assistance. He then enlisted the services of his attorneys of record to submit a claim, on his behalf, directly with Liberty. On 6 February 2017, his attorneys addressed a letter to Liberty requesting a statement of balances of the applicant's pension benefits (p24). Liberty responded by letter dated 7 February 2017 to which was attached what Liberty referred to as"member investment summary for the period 03/02/2017 to 06/02/2017".The document shows the closing investment value as R17 100.63 (p26). It bears the scheme name as "Morgan Abattoir (Pty) Ltd, the scheme number: 0030262701, the member name: Mr MH Mashamaite (being the applican)t, and member number: M203160B.

[5]

Following his resignation, the applicant made enquiries, on two occasions, with the first respondent regarding his provident pay-out, but received no assistance. He then enlisted the services of his attorneys of record to submit a claim, on his behalf, directly with Liberty. On 6 February 2017, his attorneys addressed a letter to Liberty requesting a statement of balances of the applicant's pension benefits (p24). Liberty responded by letter dated 7 February 2017 to which was attached what Liberty referred to as

"member investment summary for the period 03/02/2017 to 06/02/2017".

The document shows the closing investment value as R17 100.63 (p26). It bears the scheme name as "Morgan Abattoir (Pty) Ltd, the scheme number: 0030262701, the member name: Mr MH Mashamaite (being the applican)t, and member number: M203160B.

[6]On 10 February 2017, the applicant's attorneys send a letter to the third respondent (MV Makelaars) in which they complained that the provident fund benefits were far lower than what the applicant had contributed, and requested the third respondent to account on certain information (p31).

[6]

On 10 February 2017, the applicant's attorneys send a letter to the third respondent (MV Makelaars) in which they complained that the provident fund benefits were far lower than what the applicant had contributed, and requested the third respondent to account on certain information (p31).

[7]The third respondent replied and provided some information which included a letter from Liberty dated 7 March 2017, to which was attached another member investment summary, but for the period 01/05/2012 to 30/09/2016, showing a closing investment value of R16 469.08, as well as a statement in relation thereto (p35).

[7]

The third respondent replied and provided some information which included a letter from Liberty dated 7 March 2017, to which was attached another member investment summary, but for the period 01/05/2012 to 30/09/2016, showing a closing investment value of R16 469.08, as well as a statement in relation thereto (p35).

[8]The member investment summary for the period 3/2/2017 to 6/2/2017, with a closing value of R17 100.63, shows the investment portfolio as Liberty Institutiona l Money Market Fund, comprising contributions only from the employer recorded as"Employer AVG: R1 151.11"and"Employer Contributions: R15 949.52"(p26).

[8]

The member investment summary for the period 3/2/2017 to 6/2/2017, with a closing value of R17 100.63, shows the investment portfolio as Liberty Institutiona l Money Market Fund, comprising contributions only from the employer recorded as

"Employer AVG: R1 151.11"

"Employer Contributions: R15 949.52"

(p26).

[9]The member investment summary for the period 1/5/2012 to 30/9/2016, with a closing value of R16 469.08, shows three (3) investment portfolios namely Multi Manager Growth, Liberty Institutional Money Market Fund and Liberty Stable Growth Fund, comprised of contributions in the same manner as above, namely:"Employer AVG: R1 128.80"and"Employer Contributions: R15 340.28"(p35).

[9]

The member investment summary for the period 1/5/2012 to 30/9/2016, with a closing value of R16 469.08, shows three (3) investment portfolios namely Multi Manager Growth, Liberty Institutional Money Market Fund and Liberty Stable Growth Fund, comprised of contributions in the same manner as above, namely:

"Employer AVG: R1 128.80"

"Employer Contributions: R15 340.28"

(p35).

[10]None of these documents show contributions by the employee, i.e. the applicant, even though they both reflect him as a member, with member number M203160B.

[10]

None of these documents show contributions by the employee, i.e. the applicant, even though they both reflect him as a member, with member number M203160B.

[11]It was this realisation that triggered the dispute in the present application, with the applicant contending that the provident fund deductions from his salary had not been paid to Liberty and, therefore, demanding to know where were the deductions went to (FA14/19 & p47).

[11]

It was this realisation that triggered the dispute in the present application, with the applicant contending that the provident fund deductions from his salary had not been paid to Liberty and, therefore, demanding to know where were the deductions went to (FA14/19 & p47).

[12]The issue was raised with the first respondent by letter dated 1O March 2017. (p47). The response from the first respondent was that the matter has been escalated to its broker and the first respondent will get back to the applicant's attorneys no later than 22 March 2017 (p50).

[12]

The issue was raised with the first respondent by letter dated 1O March 2017. (p47). The response from the first respondent was that the matter has been escalated to its broker and the first respondent will get back to the applicant's attorneys no later than 22 March 2017 (p50).

[13]However, the first respondent failed to respond, necessitating another letter from the applicant's attorneys dated 24 March 2017, complaining of the first respondent's failure to respond and affording it a further time to respond, until 28 March 2017. The applicant's attorneys warned that another failure to respond would leave the applicant with no option but to take legal action (p52).

[13]

However, the first respondent failed to respond, necessitating another letter from the applicant's attorneys dated 24 March 2017, complaining of the first respondent's failure to respond and affording it a further time to respond, until 28 March 2017. The applicant's attorneys warned that another failure to respond would leave the applicant with no option but to take legal action (p52).

[14]There seems to have been no response again from the first respondent.

[14]

There seems to have been no response again from the first respondent.

[15]On 5 April 2017, the applicant's attorneys addressed another letter to the first respondent providing it with certain documentation relating to 'member benefits statement as at 1 May 2012' from Liberty, a detailed statement of contributions (which is the same as the second of the two member investment summaries referred to above for the period 1/5/2012 to 30/9/2016) and copies of two (2) of the applicant's payslips reflecting provident fund deductions (p54). The applicant's attorneys requested to be provided with the name of the fund into which the provident fund deductions were paid. There seems also to have been no response to this letter from the first respondent (FA16/24).

[15]

On 5 April 2017, the applicant's attorneys addressed another letter to the first respondent providing it with certain documentation relating to 'member benefits statement as at 1 May 2012' from Liberty, a detailed statement of contributions (which is the same as the second of the two member investment summaries referred to above for the period 1/5/2012 to 30/9/2016) and copies of two (2) of the applicant's payslips reflecting provident fund deductions (p54). The applicant's attorneys requested to be provided with the name of the fund into which the provident fund deductions were paid. There seems also to have been no response to this letter from the first respondent (FA16/24).

[16]In its answering affidavit, and as explanation for the failure to respond, the first respondent simply states that it was seeking legal representation, as it was entitled to (AA105/45). However, this response fails to explain the first respondent's failure to

[16]

In its answering affidavit, and as explanation for the failure to respond, the first respondent simply states that it was seeking legal representation, as it was entitled to (AA105/45). However, this response fails to explain the first respondent's failure to

respond as it had undertaken to do"no later than 22 March 2017"and the continued silence thereafter.

"no later than 22 March 2017"

(17) In any event, the explanation that the first respondent was already seeking legal representation during the correspondence in March/April 2017, lacks credibility when read with the allegation in paragraph 7 of its own answering

affidavit, which shows that it was only after the present application had been

instituted that the first respondent

managed to brief legal representatives on 15 May 2017 regarding the matte.r There is no explanation as to what transpired between March 2017 and this date regarding legal representation that the first respondent says was entitled to see.k

[18]Furthermore, the reasons proffered for the late filing of the answering affidavit show that the above allegation cannot be true. On the first respondents version, contact with Liberty and Discovery to obtain information was only made in June 2017 (AA87/11). There is not allegation or evidence tendered to show that steps to obtain information from Liberty and Discovery were taken during the correspondence in

[18]

Furthermore, the reasons proffered for the late filing of the answering affidavit show that the above allegation cannot be true. On the first respondents version, contact with Liberty and Discovery to obtain information was only made in June 2017 (AA87/11). There is not allegation or evidence tendered to show that steps to obtain information from Liberty and Discovery were taken during the correspondence in

March/April 2017.

[19]Mr Lauw, for the first respondent, submitted during argument that there were attempts by the first respondent before and after the application was instituted to engage with the applicant in order to resolve the matter. However, his submission is not borne out by the facts in the papers.

[19]

Mr Lauw, for the first respondent, submitted during argument that there were attempts by the first respondent before and after the application was instituted to engage with the applicant in order to resolve the matter. However, his submission is not borne out by the facts in the papers.

[20]In the papers, the delay in filing the answering affidavit is said to have been caused by the first respondent's failed attempt to obtain the fund rules. It is not said to have been as a result of attempts to amicably resolve the matter with the applicant. In any event, it is odd that the employer would subscribe its employees to a fund of which the employer has no rules.

[20]

In the papers, the delay in filing the answering affidavit is said to have been caused by the first respondent's failed attempt to obtain the fund rules. It is not said to have been as a result of attempts to amicably resolve the matter with the applicant. In any event, it is odd that the employer would subscribe its employees to a fund of which the employer has no rules.

[21]According to the papers, as appears from the applicant's replying affidavit, settlement discussions between the parties were initiated in July 2017, after the first respondent had filed its answering affidavit (RA221/4-5).

[21]

According to the papers, as appears from the applicant's replying affidavit, settlement discussions between the parties were initiated in July 2017, after the first respondent had filed its answering affidavit (RA221/4-5).

[22]The present application was served on the first respondent on 26 April 2017 (p76), after its repeated failure to respond to the applicant's attorneys. On 15 May 2017, the first respondent delivered its notice of intention to oppose and on 27 June 2017 served its opposing affidavit (pp79 & 81). There is no an iota of evidence to show that at any time during this period the first respondent addressed the queries raised by the applicant's attorneys.

[22]

The present application was served on the first respondent on 26 April 2017 (p76), after its repeated failure to respond to the applicant's attorneys. On 15 May 2017, the first respondent delivered its notice of intention to oppose and on 27 June 2017 served its opposing affidavit (pp79 & 81). There is no an iota of evidence to show that at any time during this period the first respondent addressed the queries raised by the applicant's attorneys.

[23]Only the first respondent opposes the application.

[23]

Only the first respondent opposes the application.

[24] In its answering affidavit, the first respondent alleges that the provident fund deductions were indeed paid over to the fund

administered by Liberty and to Discovery Life (p92/19).

[25]The first respondent seeks to substantiate this averment by relying on calculations made by it in a document marked "annexure B" (p96/31) . As stated, annexure B is a document generated by the first respondent itself. The document does not originate from Liberty or Discovery and its contents are not confirmed by either of the two entities. More importantly, annexure B simply records the amount of deductions made against the applicant's salary from 2012 to 2016. It contains no explanation as to where the provident fund deductions were paid and why the member investment summary from Liberty does not show contributions by the member. It is also not disclosed who exactly of the first respondent prepared this annexure B and where and how the other figures thereon were derived and accounted for.

[25]

The first respondent seeks to substantiate this averment by relying on calculations made by it in a document marked "annexure B" (p96/31) . As stated, annexure B is a document generated by the first respondent itself. The document does not originate from Liberty or Discovery and its contents are not confirmed by either of the two entities. More importantly, annexure B simply records the amount of deductions made against the applicant's salary from 2012 to 2016. It contains no explanation as to where the provident fund deductions were paid and why the member investment summary from Liberty does not show contributions by the member. It is also not disclosed who exactly of the first respondent prepared this annexure B and where and how the other figures thereon were derived and accounted for.

[26]When I asked Mr Louw why the member's contribution is not reflected in the member investment summary from Liberty, he said that he did not know, but also that his client cannot be expected to interpret Liberty's document. This is indeed an unfortunate response by the employer's representative. The first respondent, as the employer, should have taken the trouble to understand the document and, if necessary, obtain explanations from Liberty that will clarify the position. One can infer from the response that the first respondent did not care to do so.

[26]

When I asked Mr Louw why the member's contribution is not reflected in the member investment summary from Liberty, he said that he did not know, but also that his client cannot be expected to interpret Liberty's document. This is indeed an unfortunate response by the employer's representative. The first respondent, as the employer, should have taken the trouble to understand the document and, if necessary, obtain explanations from Liberty that will clarify the position. One can infer from the response that the first respondent did not care to do so.

[27]The first respondent's averments that the applicant became a member of Group Life Insurance Policy with Discovery, are not substantiated. The first respondent has not attached any documentation to show that the applicant was a member of Group Life Insurance Policy with Discovery. The documents marked E1 to E5, to the answering affidavit, fail to prove this averment, as the documents do not bear any reference to Discovery or Discovery Group Life Insurance Policy, are not on Discovery's letterhead and have not been confirmed by Discovery. In reply, the applicant disputes their authenticity on the basis that the documents do not have any letterhead whatsoever to show that they were indeed received from Discovery Life. The applicant further states that he was never advised or consulted by the first respondent on any contribution to Discovery Life (p230/27.5).

[27]

The first respondent's averments that the applicant became a member of Group Life Insurance Policy with Discovery, are not substantiated. The first respondent has not attached any documentation to show that the applicant was a member of Group Life Insurance Policy with Discovery. The documents marked E1 to E5, to the answering affidavit, fail to prove this averment, as the documents do not bear any reference to Discovery or Discovery Group Life Insurance Policy, are not on Discovery's letterhead and have not been confirmed by Discovery. In reply, the applicant disputes their authenticity on the basis that the documents do not have any letterhead whatsoever to show that they were indeed received from Discovery Life. The applicant further states that he was never advised or consulted by the first respondent on any contribution to Discovery Life (p230/27.5).

[28]The only documents provided in the papers with any measure of certainty are those in relation to the provident fund with Liberty. However, those are the documents that show no contribution by the member. Annexure B, furnished by the first respondent, does not explain this anomaly, nor is it explained in the answering affidavit.

[28]

The only documents provided in the papers with any measure of certainty are those in relation to the provident fund with Liberty. However, those are the documents that show no contribution by the member. Annexure B, furnished by the first respondent, does not explain this anomaly, nor is it explained in the answering affidavit.

[29] Further, the first respondent seeks to make averments on how contributions were calculated based on the fund rules, but has failed to provide those rules. The first respondent correctly acknowledges that it cannot make any submission in regard to the fund rules when it does not have the rules and has not produced them. In any event, the first respondent has not shown anywhere that provident fund deductions made against the applicant's salary were indeed paid over to Liberty.

[30]The first respondent's case takes a bizarre twist when the first respondent, whilst contending that payment was made to Liberty, alleges at the same time that there is uncertainty as to whether the provident fund imposed an obligation on both the employer and the employee to make contributions. The first respondent cannot have it both ways. Either the member, i.e. the applicant, made contributions to the provident fund or did not. If he did not make contributions, the question is why did the first respondent continue making deductions from his salary and where did the money go to, if it is not been accounted for in Liberty's own records. The first respondent's allegation and, indeed, contention that the first respondent has paid the provident fund deductions over

to Liberty is irreconcilable with the alleged uncertainty (p103/40).

[30]

The first respondent's case takes a bizarre twist when the first respondent, whilst contending that payment was made to Liberty, alleges at the same time that there is uncertainty as to whether the provident fund imposed an obligation on both the employer and the employee to make contributions. The first respondent cannot have it both ways. Either the member, i.e. the applicant, made contributions to the provident fund or did not. If he did not make contributions, the question is why did the first respondent continue making deductions from his salary and where did the money go to, if it is not been accounted for in Liberty's own records. The first respondent's allegation and, indeed, contention that the first respondent has paid the provident fund deductions over

to Liberty is irreconcilable with the alleged uncertainty (p103/40).

[31]Although the applicant accepts that annexure B may correctly reflect a record of so-called provident fund deductions made against his salary, he contends that annexure B is still deficient as it fails to explain the zero-contribution shown against his name on Liberty's records.

[31]

Although the applicant accepts that annexure B may correctly reflect a record of so-called provident fund deductions made against his salary, he contends that annexure B is still deficient as it fails to explain the zero-contribution shown against his name on Liberty's records.

[32]The first respondent only makes an allegation that payment was made to Liberty, but has not provided any evidence to show this allegation. It is common cause that the documents from Liberty only show employer contributions. In the absence of evidence to show that provident fund deductions from the applicant's salary were indeed paid over to Liberty, the first respondent's opposition to the relief sought must fail.

[32]

The first respondent only makes an allegation that payment was made to Liberty, but has not provided any evidence to show this allegation. It is common cause that the documents from Liberty only show employer contributions. In the absence of evidence to show that provident fund deductions from the applicant's salary were indeed paid over to Liberty, the first respondent's opposition to the relief sought must fail.

[33]As regards Discovery life policy, the first respondent's case is a non-starter.

[33]

As regards Discovery life policy, the first respondent's case is a non-starter.

Deductions alleged to have been made for this policy are not reflected and/or itemised in the applicant 's payslip. The applicant does not even know whether the policy exists. He was never informed of such policy and never consented to signing up for it. There is no a single trace in the papers of a document from Discovery confirming its existence. As the first respondent is the one who has made the allegation of the existence of this policy, it was incumbent on it to establish its existence. The first respondent has failed to do so.

[34] In the result, I make the following order:

34.1The first respondent is ordered to pay to the second respondent an amount of R26 636.39 as arrear contributions for the applicant's provident fund, together with late payment interest.

34.1

The first respondent is ordered to pay to the second respondent an amount of R26 636.39 as arrear contributions for the applicant's provident fund, together with late payment interest.

34.2The second respondent is ordered to compute the late payment interest on the said amount of R26 636.39 within 14 days of service of this order on the second respondent.

34.2

The second respondent is ordered to compute the late payment interest on the said amount of R26 636.39 within 14 days of service of this order on the second respondent.

34.3The first respondent is to pay the said amount within seven (7) days of receipt of interest calculations from the second respondent.

34.3

The first respondent is to pay the said amount within seven (7) days of receipt of interest calculations from the second respondent.

34.4The first respondent is ordered to pay the costs of this application.

34.4

The first respondent is ordered to pay the costs of this application.

PG Seleka

ACTING

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Mashamaite v Morgan Beef Investments (PTY) LTD and Others (28767/17) [2019] ZAGPPHC 31

Case cited

Pension Funds Act, 24 of 1956 (as amended)

Legislation

Legislation referenced in the available case record.

Case-aware research

Ask AI about this case

The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.