Royal Bafokeng Platinum Limited and Others v Momentum Metropolitan Life Ltd and Others [2023] ZAGPPHC 442; 64286/2021 (19 June 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 442 | Noteup | LawCite sino index ## Royal Bafokeng Platinum Limited and Others v Momentum Metropolitan Life Ltd and Others [2023] ZAGPPHC 442; 64286/2021 (19 June 2023) Royal Bafokeng Platinum Limited and Others v Momentum Metropolitan Life Ltd and Others [2023] ZAGPPHC 442; 64286/2021 (19 June 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_442.html sino date 19 June 2023 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case number:           64286/2021 Date of hearing:     15 June 2023 Date delivered:       19 June 2023 (1)    REPORTABLE: YES / NO (2)    OF INTEREST TO OTHER JUDGES: YES / NO (3)    REVISED. DATE: 19/06/2023 In the matter between: ROYAL BAFOKENG PLATINUM LIMITED            First Applicant BAFOKENG RASIMONE MANAGEMENT SERVICES (PTY) LTD                                            Second Applicant ROYAL BAFOKENG RESOURCES PROPERTIES (RF) (PTY) LTD                               Third Applicant and MOMENTUM METROPOLITAN LIFE LTD             First Respondent FUNDSATWORK UMBRELLA PENSION FUND                                                      Second Respondent FUNDSATWORK UMBRELLA PROVIDENT FUND                                                 Third Respondent THE PENSIONS FUNDS ADJUDICATOR              Fourth Respondent SEFAKO ABIOT LUCAS DIKGOLE                       Fifth Respondent KHOMEDI SIMON MOHAPI                                    Sixth Respondent LAWRENCE LUCKY KHUNOU                              Seventh Respondent OPPURTUNIA TSHEBOENG RANTSHO              Eighth Respondent THERESA BAILE LEHOBYE                                 Ninth Respondent OTHUSITSE EDWARD MASUDI                            Tenth Respondent KGOTLAETSILE JERRY SEBOGODI                    Eleventh Respondent ITUMELENG JONATHAN SENNE                          Twelfth Respondent (AND THE LATE ESTATE) MPOLOKENG SUZAN MATSOSO                         Thirteenth Respondent JUDGMENT SWANEPOEL J: [1]    Applicants seek leave to appeal against the dismissal of their application in which they sought the setting aside of the Pensions Fund Adjudicator's ruling in respect of fifth to thirteenth respondents' pension interest. [2]    Applicants take issue with the interpretation placed by this Court on the word "dishonesty" in section 37 D (1) (b) (ii) (bb) of the Pension Funds Act, 1956 . Applicants contend that it is reasonably possible that another Court would come to a different interpretation of the word, and that leave to appeal should be granted in terms of section 17 (1) (a) (i) of the Superior Courts Act, 2013 ("the Act"). This issue was extensively argued, and I have not heard any new argument which would move me to believe that another Court would come to a different finding. Therefore the application should fail on that ground. [3]    Applicants also seek leave to appeal in terms of section 17 (1) (a) (ii) of the Act. They do so on the basis that there are allegedly conflicting views on the issue of whether misconduct, within the meaning of section 37 D of the Pension Funds Act must contain an element of dishonesty. In Moodley v Local Transitional Council of Scottburgh Umzinto North and Another[1999] JOL 5652 (D) the Court held that the common denominator of the words used in section 37 D was the element of dishonesty. That interpretation was followed in South African Broadcasting Corporation SOC Ltd v South African Broadcasting Corporation Pension Fund and Others 2019 (4) SA 606 (GJ) at para 81. [4]    However, in Msunduzi Municipality v Natal Joint Municipal Pension/Provident Fund and Others 2007 (1) SA 142 (N) the Court said the following: "Counsel for the fourth respondent relies on what was said in Moodley v Scottburgh/Umzinto North Local Transitional Council and another to the effect that 'misconduct' must have an element of dishonesty. I have been invited to disagree with that decision. I am, with respect, by no means convinced it is right. I hold no firm views on it because it is not necessary for current purposes." [5]    Not only was the above remark obiter, in fact the learned Judge merely expressed her reservations about Moodley, without expressing a firm view one way or the other. Leave to appeal has been granted in cases where there were express judgments which contradicted one another [1] . This is not such a case. In Msunduzi the learned Judge did not make a finding on the issue, and even if she had, it would have been obiter. Against this tentative remark in Msunduzi one finds the various cases in which the dishonesty element has been emphasized. In my view this is not a matter in which certainty requires the attention of the Supreme Court of Appeal. [6]    Finally, applicants say that the judgment has implications for its contractual relations with its employees, and that they should therefore be allowed to appeal the judgment in terms of section 17 (1) (a) (ii) of the Act. There is little to no evidence in the papers what these implications may be, and Mr Franklin did not pursue this argument with any vigour. Suffice it to say that I do not believe that applicants' contractual relationship with its employees constitutes, in the circumstances of this case, a compelling reason to grant leave to appeal. [7] I make the following order: [7.1]   The application for leave to appeal is dismissed with costs. SWANEPOEL J JUDGE OF THE HIGH COURT GAUTENG DIVISION OF THE HIGH COURT, PRETORIA COUNSEL FOR PLAINTIFF:                     Adv A. Franklin SC ATTORNEY FOR PLAINTIFF:                   Webber Wentzel Attorneys COUNSEL FOR DEFENDANT:                  Adv. V. Makofane ATTORNEYS FOR DEFENDANT:             Kubayi and Kubayi Inc DATE HEARD:                                           15 June 2023 DATE OF JUDGMENT:                              19 June 2023 [1] Nova Property Group Holdings Ltd and Others v Cobbett and Another 2016 (4) SA 317 (SCA) (MandG Centre for Investigative Journalism NPC as amicus curiae) sino noindex make_database footer start