Windybrow Theatre v Sanlam Employee Benefits Division of the Sanlam Umbrella Fund and Others (52218 / 15) [2015] ZAGPPHC 786 (16 November 2015)

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

[REPUBLIC OF SOUTH AFRICA]

CASE NUMBER: 52218 / 15

DATE: 16 OCTOBER 2015

In the matter between:

WINDYBROW THEATRE...............................................................................................APPLICANT

And

SANLAM EMPLOYEE BENEFITS................................................................FIRST RESPONDENT

DIVISION OF THE SANLAM UMBRELLA FUND

VUYO MAPHELA.......................................................................................SECOND RESPONDENT

ALLIE ACHMAT.............................................................................................THIRD RESPONDENT

JUDGMENT

MAVUNDLA, J.

[1] On the 6 August 2015 this Court ordered that the matter be removed from the urgent Court roll and that each party to pay its own

costs. The reasons for the order are set out herein below.

[2] The applicant initiated the application by way of urgency, in terms of rule 6(12), seeking primarily an interim interdict restraining the first respondent from releasing and paying any benefits from the pension fund accruing to the second and third respondents, pending the finalisation of the action for damages ("the damages claim") instituted by the applicant in the Labour Court

under case number 117 / 15.

[3] The second and third respondents were employed by the applicant respectively, on 7 February 2005 and 7 January 2007 as its Chief Executive Officer, and Chief Financial Officer. They were both responsible for the procurement of contracts, approve and sign off

invoices and payments for work done and payments which the suppliers and or contractors were entitled to.

[4] The first and second respondents' employment with the applicant was terminated on the 27 May 2014. The reason for the termination of their employment was that a total amount of R65 million was expended towards the renovations of a theatre situated in Hillbrow belonging to the applicant. The applicant caused a forensic audit to be conducted in respect of the expended amount R65 million.

Consequent to the forensic audit report, the second and third respondents were dismissed from their employment with the applicant

due to misappropriation of over R60 million.

[5] The accrued benefits of the second and third respondents respectively are in the amounts of Rl, 256 079.87 and R614 472. 91. The applicant sought an undertaking from the first respondent not to pay out the

second and third respondents' benefits, pending the outcome of this application. In the matter of Highveld Steel & Vanadium

Corporation Ltd v Oosthuizen 2009 (4) SA 1 (SCA) it was held that section 37(D) of the Pension Fund Act 24 of 1956 grants the fund a discretion to withhold the benefits of an employee to protect the employer's right to pursue the recovery of money misappropriated by its employee. However, as on the 26 June 2015 there was no undertaking forthcoming from the first respondent.

[1] The affidavit of the applicant was deposed to on the 29 June 2015. The basis of urgency was that on Wednesday 24 June 2015, the first respondent communicated its decision to release the pension monies to the second and third respondents on Friday 3, July 2015,

unless a Court order directs otherwise. The matter was to be heard on the 2 July 2015.

[2] The first respondent subsequently indicated its willingness not to effect payments pending the hearing of this application in August 2015. As the result the matter was then set down for hearing on the 6 August 2015 as per request of the erstwhile legal representative of the second and third respondents. Through further exchanged correspondence between the second and third respondents' erstwhile

legal representative and that of the applicant, it was tacitly agreed that the matter will be heard in the ordinary motion roll in November 2015.[I]

[3] What this Court had to decide as a preliminary issue was whether the second and third respondents had reneged from an agreement that the matter be ventilated in the opposed ordinary motion roll in November 2015, rather than in the urgent Court.

[9] The second and third respondents' erstwhile legal representative withdrew from the matter on the 31 July 2015. The current legal representative of the second and third respondents came on board on the 3 August 2015 and took the view that the matter must be proceeded with on the 6 August 2015.

[10] The applicant contended that the second and third respondents were not bona fide in agreeing that the matter be proceeded with in November 2015, only to renege at the doorstep of the Court.

[11] In my view, parties at all times ought to act bona fide with one another. It is inappropriate for a party to agree with his opponent as to how the matter is to be dealt with and renege from that agreement, as was the case in casu. In my view, the erstwhile attorney of the second and third respondents had agreed that the matter be proceeded with in November. The applicant, in my view, was lulled into complacency by the agreement reached that the matter be proceeded with in November. This resulted in the applicant not filing its heads of argument well in time, as required by the rules and practice of this Court. Both parties handed in their respective heads of argument on the very day of the hearing of the matter, which is not in accordance with the practice manual of this Court.

[12] The conduct of the second and third respondents, as mentioned herein above, is to be frowned upon, it would not be fair that they

be mulcted with the costs occasioned by the matter being removed from the roll. This must be so because they were acting on the advice of their current legal representatives, in reneging. They equally should not benefit from the applicant's request that the matter should be proceeded with in November, resulting in the matter being removed from the roll. Similarly the applicant should not benefit from its own prevarication concerning the urgency of the matter, to say the least about that.

[13] It was for the above mentioned reasons that the order of 6 October 2015 was made.

N. M. MAVUNDLA JUDGE OF THE HIGH COURT

DATE OF HEARING : 06/08/2015

DATE OF JUDGMENT : 16/10/2015

APPLICANTS' ATT : CLIFFE DEKKER HOFMEYR INC.

APPLICANTS'ADV : ADVJ.C. BURGER

RESPONDENTS' ATT : F. RUDOLPH ATTORNEYS

RESPONDENTS' ADV : ADV P.A. WILKINS

[I] Vide para 10 of the supplementary affidavit and annexure "LS2" thereto attached, filed with the leave of the Court ET para 13-14.,

[I] Vide para 10 of the supplementary affidavit and annexure "LS2" thereto attached, filed with the leave of the

Court ET para 13-14.,