Mohaila Ralengau V Principal Secretary, Ministry of Education & 6 Others (CIV/APN/105/2021) [2023] LSHC 166 (5 July 2023)

# Mohaila Ralengau V Principal Secretary, Ministry of Education & 6 Others (CIV/APN/105/2021) [2023] LSHC 166 (5 July 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/166/eng@2023-07-05) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/166/eng@2023-07-05) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/166/eng@2023-07-05) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/166/eng@2023-07-05) [ __](mailto:?subject=Take a look at this document from LesLII: Mohaila Ralengau V Principal Secretary, Ministry of …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/166/eng@2023-07-05) [ Download PDF (333.8 KB) ](/akn/ls/judgment/lshc/2023/166/eng@2023-07-05/source) Report a problem __ * Share * [ Download PDF (333.8 KB) ](/akn/ls/judgment/lshc/2023/166/eng@2023-07-05/source) * * * * * Report a problem __ ##### Mohaila Ralengau V Principal Secretary, Ministry of Education & 6 Others (CIV/APN/105/2021) [2023] LSHC 166 (5 July 2023) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Mohaila Ralengau V Principal Secretary, Ministry of Education & 6 Others (CIV/APN/105/2021) [2023] LSHC 166 (5 July 2023) Copy Media Neutral Citation [2023] LSHC 166 Copy Hearing date 1 September 2022 Court [High Court](/judgments/LSHC/) Case number CIV/APN/105/2021 Judges [Khabo J](/judgments/all/?judges=Khabo%20J) Judgment date 5 July 2023 Language English Summary Read full summary * * * Skip to document content Page | 1 IN THE HIGH COURT OF LESOTHO HELD AT MASERU CIV/APN/105/2021 In the matter between: MOHAILA RALENGAU 1st APPLICANT MOLEFI RALENGAU 2nd APPLICANT NCHOLU RALENGAU 3rd APPLICANT and PRINCIPAL SECRETARY OF EDUCATION 1st RESPONDENT PRINCIPAL SECRETARY OF FINANCE 2nd RESPONDENT PRINCIPAL OFFICER, PUBLIC OFFICERS’ 3rd RESPONDENT DEFINED CONTRIBUTION PENSION FUND PUBLIC OFFICERS’ DEFINED 4th RESPONDENT CONTRIBUTION PENSION FUND TEACHING SERVICE COMMISSION 5th RESPONDENT MASTER OF THE HIGH COURT 6th RESPONDENT ATTORNEY GENERAL 7th RESPONDENT Page | 2 Neutral citation : Mohaila Ralengau and 2 Others v Principal Secretary of Education and 6 Others [[2021] LSHC 166](/akn/ls/judgment/lshc/2021/166) (05 July, 2023) CORAM : KHABO J., HEARD : 01st SEPTEMBER, 2022 DELIVERED : 05th JULY, 2023 SUMMARY Pension benefits - Accruing from 1st Applicant’s late wife’s terminal benefits, under the Public Officers’ Defined Contribution Pension Fund established under the Public Officers’ Defined Contribution Pension Fund [Act No. 8 of 2008](/akn/ls/act/2008/8) (the Act) - Government claiming set - off therefrom of a debt arising from a “salary overpayment” during her tenure of office and from the payment of four (4) months’ salary erroneously paid into her bank account after her demise - 1st Applicant is disputing these deductions and further praying to have the Rule in the Public Officers’ Defined Contribution Pension Fund Rules that obliges the Government to contribute 6.2% of the member’s gross salary into the Fund declared invalid, null and void and of no force and effect for being ultra vires the Act. Page | 3 ANNOTATIONS Statutes and subsidiary legislation High Court Rules, 1980 Public Financial Management and Accountability [Act No. 12 of 2011](/akn/ls/act/2011/12) Public Officers’ Defined Contribution Pension Fund (Rate of Contribution) (Amendment) Notice, 2010 Public Officers’ Defined Contribution Pension Fund [Act No. 8 of 2008](/akn/ls/act/2008/8) Public Officers’ Defined Contribution Pension Fund Rules, 2010 Treasury Regulations, 2014 Cases cited Lesotho Executors Estate Late Lebamang James Monaphathi v Dust Busters (Pty) Ltd and 6 Others CCA/0045/2022 Ha Seotsanyana (Pty) Ltd v Litjotjela Mall CCA/0053/2021 Lehlohonolo Mangoejane and Others v Seabata Mangoejane C of A (CIV) No. 43/2017 Page | 4 Makhetha v Estate late Elizabeth `Mabolase Sekonyela C of A (CIV) 44 of 2017 [[2018] LSCA 16](/akn/ls/judgment/lsca/2018/16) (07 December, 2018) Qhobela Selebalo v Principal Secretary, Local Government and Another CIV/APN/114/2012 Lesotho National Olympic Committee v Morolong (2000 - 2004) 449 Other jurisdictions South Africa Plascon - Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 Sewmungal and Another NNO v Regent Cinema 1977 (1) SA 814 (N) Page | 5 JUDGMENT KHABO J., Introduction [1] The 1st Applicant is seeking an interdict against the Government of Lesotho (the Government) from deducting from his late wife’s pension benefits monies purportedly owing by way of a salary overpayment to his late wife, `Mamosa Florence Ralengau, a former Government employee, arising from payment of a salary that was more than what was due to her during the tenure of her office in the periods indicated as well as salary that was erroneously paid into her account for four months after her demise. 1st, 2nd, 3rd, 4th and 5th Respondents oppose this application. [2] The late Mrs Ralengau was engaged by the Government on permanent and pensionable terms as a teacher, thereby, becoming a member of the Public Officers’ Defined Contribution Pension Fund (the Fund) established under the Public Officers’ Defined Contribution Pension Fund Act, Page | 6 No. 8 of 2008 (the Act) to provide pension benefits to public officers in their various categories.1 She met her untimely death on 21st June, 20182 and, by virtue of her membership to the Fund, pension benefits accrued to her estate. For a better perspective of where the 1st Applicant’s claim is coming from, the court finds it prudent to start with Respondents’ case. 1st, 2nd and 5th Respondents’ case [3] The Government alleges that the estate of the late Mrs Ralengau, Applicant’s wife, is indebted to it in the sum of Eighty - Four Thousand, Eight Hundred and Eighty - Four Maloti (M84 884.00), a debt that is said to have arisen as a result of a salary overpayment to her in June and July, 1998 and from November, 2001 to April, 2009 whilst still in employment; and from July, 2018 to October, 2018 when she was mistakenly paid a salary when she had already passed on. As proof of the latter, Theko Mohau, Director, Remuneration and Benefits at the Teaching Service Department (TSD) attached to his 1 Section 3 (1) 2 Annexure “MR 1” - Death Certificate annexed to the Notice of Motion Page | 7 answering affidavit, on behalf of the 1st, 2nd and 5th Respondents, four pay slips reflecting payment of salary in her favour from July to October, 2018, despite her demise.3 Applicants’ case [4] It is 1st Applicant’s case that the benefits due to the late estate of his wife are to the tune of Three Hundred and Fifty - Six Thousand, Four Hundred and Twenty - Nine Maloti and Thirteen Cents (M356 429.13), comprising his late wife’s contribution to the Fund over the years at the rate of 5% of her monthly gross salary plus the Government’s contribution at 11.2%, and no less. To arrive at this sum, he added up his late wife’s contribution together with that of the employer from her payslips since she joined the Fund in December, 2008 up to her demise in June, 2018.4 3 Attached to 1st, 2nd and 5th Respondents’ Answering and Founding Affidavits as annexure “TSD 2” 4 Annexure “MR 2” to 1st Applicant’s Founding Affidavit Page | 8 [5] It is further his case that the Fund has no right to deduct administrative costs from the pension benefits. He, therefore, seeks an order in the following terms: a) Directing the 1st and 5th Respondents to process, within thirty (30) days of the service of this Order upon each …(sic) accrued employment death benefits in the estate of the late `Mamosa Florence Ralengau for the benefit of the Applicant in the amount of Three Hundred and Fifty - Six Thousand, Four Hundred and Twenty - Nine Maloti and Thirteen Cents (M356 429.13) with interest at the rate of 22% p/a effective from July, 2019 to date of payment, for purposes of further processing of the same by the 2nd Respondent for payment by the 3rd and 4th Respondents; b) Directing the 2nd Respondent to process within thirty (30) days of compliance of this Order by the 1st and 5th Respondents in terms of paragraph 1 (a) above accrued employment terminal death benefits in the estate of the late `Mamosa Florence Ralengau in the amount of Three Page | 9 Hundred and Fifty - Six Thousand, Four Hundred and Twenty - Nine Maloti and Thirteen Cents (M356 429.13) with interest at the rate of 22% per annum effective from July, 2019 to date of payment, for purposes of payment of the same by the 3rd and 4th Respondents; c) Directing the 3rd and 4th Respondents to pay to the Applicant through Account Number 9080002671790 of Standard Lesotho Bank, within fourteen (14) days of compliance of this Order by the 2nd Respondent in terms of paragraph 1 (b) above, accrued employment terminal death benefits in the estate of the late `Mamosa Florence Ralengau in the amount of Three Hundred and Fifty - Six Thousand, Four Hundred and Twenty - Nine Maloti and Thirteen Cents (M356 429.13) with interest at the rate of 22% per annum effective from July, 2019 to date of payment; d) Declaring that the Government of Lesotho, as the employer of the late `Mamosa Florence Ralengau during her tenure of office was obligated to have contributed Page | 10 monthly from December, 2008 to June, 2018 inclusive, by way of payments to the build - up of the balance of her Fund Credit in the Public Officers’ Defined Contribution Pension Fund in the amount equivalent to 11.2% of her monthly gross salary; e) Declaring that the Public Officers’ Defined Contribution Pension Fund was obligated to have monthly payments paid into the Fund effective from December, 2008 to June, 2018, not only her own monthly contributions from her salary but the full amount contributed by her employer, Lesotho Government, equivalent of 11.2% of her monthly gross salary, without diverting any portion thereof towards any costs incurred by the Public Officers’ Defined Contribution Pension Fund in its operations of whatever nature; f) Declaring the provision of the Public Officers’ Defined Contribution Pension Fund Rules under the “Contributions” column of Schedule 1 of the Rules that reads “6.2 % of salary towards costs” as invalid, null Page | 11 and void and of no force and effect for being ultra vires the Public Officers’ Defined Contribution Pension Fund Act; g) Striking down as unlawful the provision of the Public Officers’ Defined Contribution Pension Fund Rules under the “Contributions” column of Schedule 1 of the Rules that reads “6.2 % of salary towards costs;” h) Declaring that the act of the Public Officers’ Defined Contribution Pension Fund to utilise monthly towards costs of its operations, from December, 2008 to June, 2018, inclusive, the amount equivalent to 6.2 % of the total monthly contributions of the employer’s 11.2% of the monthly gross salary of the late `Mamosa Florence Ralengau, was an act of self - help and unlawful; i) Reviewing and setting aside as null and void and of no force or effect the act of the Public Officers’ Defined Contribution Pension Fund to utilise monthly towards costs of its operations, from December, 2008 to June, Page | 12 2018, inclusive, the amount equivalent to 6.2 % of the total monthly contributions of the employer’s 11.2% of the monthly gross salary of the late `Mamosa Florence Ralengau; 2\. Costs of suit jointly and severally only in the event of opposition, at 22% interest per annum on the taxed amount from twenty - one (21) days after demand for payment of the taxed costs, the one paying the others to be absolved; 3\. Such further and/or alternative relief as the Honourable Court may deem desirable in the interests of justice. [6] In summary, the 1st Applicant disputes the purported salary overpayment by his wife’s late estate. Secondly, he challenges the Rule empowering the Fund to charge the Government operational costs as being ultra vires the Act. Of significance, is that the 1st Applicant’s averment that he is the “sole and universal heir” to his wife’s estate on the basis that his two Page | 13 sons, 1st and 2nd Applicants ceded the rights due to them in respect of the pension benefits to him. Setting the stage [7] In terms of Section 4 of the Act “the employer and a member of the Fund shall each make a monthly contribution to be paid into the bank of the Fund at a rate to be determined by the Minister on the advice of the Board and the Minister shall publish the rate in the Gazette.” Pursuant to this Section, Schedule 1 to the Public Officers’ Defined Contribution Pension Fund Rules (the Rules) was published. The Schedule as it currently stands prescribes, in respect of contributions to the Fund, that the employer shall make a monthly contribution of 5% of a Member’s gross salary towards his or her Fund Credit plus 6.2% towards costs. The Member, on the other hand, is obliged to contribute only towards his or her Fund Credit at the rate of 5% of his or her gross salary. Page | 14 [8] In terms of Section 30 of the Act, on “the death of a member, the members’ beneficiaries shall receive a death benefit to be determined by the rules.” To this end, Rule 26.1 provides that: If a Member dies while in Service, a lump sum benefit shall be payable from the Fund equal to: (a) a multiple of Fund Salary at the date of his death as quantified in the Schedule to these Rules; plus (b) his or her Fund Credit at the date of his or her death. 1st Applicant’s wife became a member of the Fund in December, 2008 and so remained until her demise in June, 2018.5 5 Para. 13.1 of 3rd and 4th Respondents’ Answering Affidavit Page | 15 Background to the dispute [9] The late Mrs Ralengau’s line Ministry was the Ministry of Education and Training. Following her passing on, her file was duly remitted to the Pensions Department, Ministry of Finance, for the processing of her terminal benefits. It was in the process of auditing her personal file that the Department discovered the salary overpayment referred to above. The query was communicated to the Teaching Service Department (TSD) which in turn wrote to the 1st Applicant in a letter dated 14th October, 20196 informing him of the overpayment and seeking his consent to have it deducted from the pension benefits accruing to his late wife’s estate. The letter went further to inform him that if he had objections, he should indicate in writing. This process is in terms of the Treasury Regulations, 2014 which provides at Regulation 30, to the extent relevant, that: (1) … 6 “TSD 3” annexed to 1st, 2nd and 5th Respondents’ Answering Affidavit Page | 16 (2) In case of amounts owed to Government by employees and former employees, the Accountant - General shall arrange for the appropriate amounts to be deducted from the salary, pension or gratuity of the person, as the case may be, and if the amount owed exceeds the amount payable, the Accountant - General shall recover the amount payable, and the remaining balance shall then be recovered in accordance with Part X; (3) Before effecting any deduction referred to in sub - regulation (2), the Accountant - General shall advise the employee, person or other entity, in writing, of the deduction and offer them the opportunity to pay the amount owing. [10] For convenience, the said letter is reproduced and reads: Ministry of Education and Training letterhead 04/07/2019 REF: TSD/P/390226 TO: … … Page | 17 … Dear Sir/Madam NOTICE OF SALARY OVERPAYMENT Kindly be informed that upon processing your pension benefits/gratuity/pension in respect of the late RALENGAU FLORENCE, an amount of M84 884 was discovered, which is the salary overpayment to be deducted from your said benefits. This amount has been checked and verified by the office of the Accountant General and Examinations. Should you have an objection to the above amount, you are to indicate in writing within fourteen (14) working days of receiving this letter to the above address. Kind Regards (signature) ……………………… D. POKA (MR) DIRECTOR - R & B (a.i) [11] The 1st Applicant did not respond to this letter, and instead served the Government with a letter of demand from his Page | 18 Attorneys of record dated 19th October, 20207 in terms of which he objected to the proposed deductions and demanded an explanation of how the overpayment was arrived at. [12] Upon receipt of this letter of demand, the Director of Remuneration and Benefits at TSD called the 1st Applicant telephonically8 and invited him to a meeting in November, 2020. The Applicant duly attended the meeting, whereat the Director explained to him how the overpayment was calculated, showing him the progression as well as the variance report9 from the Pensions Department. The 1st Applicant feeling aggrieved, withheld his consent to the deductions. He averred in his founding affidavit that TSD failed to substantiate and demonstrate how the debt occurred. [13] It is 1st, 2nd and 5th Respondents’ case that 1st Applicant’s late wife’s personal file cannot be submitted to the Fund for payment of terminal benefits until the query has been 7 Annexed to Applicants’ Founding Affidavit as “MR 7” p. 95 of the record of proceedings 8 Para 9 of 1st, 2nd and 5th Respondents’ Answering Affidavit 9 Annexed to 1st, 2nd and 5th Respondents’ Answering Affidavit and collectively marked “TSD” 1 Page | 19 cleared. As a result, the claim has not yet been lodged with the Fund. It is averred on behalf of the Fund that the late member’s benefits will only be processed once the Government has submitted a claim to the Fund as well as confirming the death of the Member and the details of the remuneration.10 Unfortunately, this has not occurred due to the impasse around the deduction. Respondents deny that they have been “clinging to the benefits” as alleged by the 1st Applicant in his papers. [14] 1st, 2nd and 5th Respondents contend that the 1st Applicant is unreasonably withholding his consent to the deductions, and that if by any chance he is paid, as he demands, he will unduly benefit at the expense of the Government. 1st, 2nd and 5th Respondents’ counterclaim [15] In reaction to 1st Applicant’s claim, 1st, 2nd and 5th Respondents instituted a counter - claim to have the salary overpayment set - off against the amount claimed by the 1st 10 Para. 22.1 3rd and 4th Respondents’ Answering Affidavit Page | 20 Applicant. They claim that that the 1st Applicant cannot simply ignore queries raised by the Pensions Department which were duly brought to his attention. It is their case that the late employee’s benefits can only be processed once the 1st Applicant agrees to the deduction of the salary overpayment. [16] They, therefore, seek an order in the following terms: a) Declaring the act of the Applicant to withhold consent to have deductions made on the terminal death benefits in the estate late Florence Ralengau unreasonable; b) Directing the 1st, 2nd and 5th Respondents to deduct an amount of Eighty - Four Thousand, Eight Hundred and Eighty - Four Maloti (84 884.00); c) Directing the Applicant to pay the costs of this counter - application; d) Granting the 1st, 2nd and 5th Respondents such further and/or alternative relief. Page | 21 1st, 2nd and 5th Respondents further claim that this is not a matter that can be determined on affidavits as it raises a real dispute of fact. l shall interrogate this point first in order to be able to ascertain the next procedural step. Whether 1st Applicant’s claim raises a dispute of fact [17] The thrust the argument raised by the 1st, 2nd and 5th Respondents is that the fact that the 1st Applicant is disputing that his late wife had been underpaid as well as having been unduly paid a salary after her demise raises a dispute of fact that cannot be resolved on affidavits as a matter of law. That a real or material dispute of fact cannot be resolved by motion proceedings is trite. [18] This fundamental principle has been elucidated by the apex court in a number of its decisions including Makhetha v Estate late Elizabeth `Mabolase Sekonyela11 and Lesotho National Olympic Committee v Morolong.12 In facilitating 11 C of A (CIV) 44 of 2017 [[2018] LSCA 16](/akn/ls/judgment/lsca/2018/16) (07 December, 2018) at para 23 12 (2000 - 2004) 449 at 453 Page | 22 the application of this principle where a matter has already been instituted Rule (8) (14) of the High Court Rules, 1980 provides that if the court is of the opinion that an application cannot be properly decided on affidavits, it may, in the interests of a just and expeditious decision direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact. [19] The court, however, warned in Lehlohonolo Mangoejane and Others v Seabata Mangoejane13 that the court can only be moved in this direction if a real dispute of fact exists. It went further to point out that the court may take a robust view of the facts and decide the matter on probabilities disclosed by the affidavits. The court referred in this regard to Plascon - Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd14 and Sewmungal & Another NNO v Regent Cinema.15 These cases were recently cited with approval in the case of Ha Seotsanyana (Pty) Ltd v Litjotjela Mall.16 13 C of A (CIV) No. 43/2017 14 1984 (3) SA 623 at 634H - 635B 15 1977 (1) SA 814 (N) 16 CCA/0053/2021 at para. 31 Page | 23 [20] This court has decided to adopt a “robust view of the facts to decide the matter on probabilities disclosed by the affidavits” in the circumstances of this case. Having read the affidavits which comprise evidence in motion proceedings, and having heard Counsels’ submissions, it finds no real dispute of fact in the present proceedings. From the affidavits, there is no question that an overpayment exists. Whatever dispute that may appear to exist is self - created, and not real. The Government’s right to offset an employee’s debts [21] Powers of the Government, to off - set money owed to it emanates from Section 33 of the Public Financial Management and Accountability [Act No. 12 of 2011](/akn/ls/act/2011/12) which provides that: Where an amount of public money is due to a person or other entity, but other money is due and payable to Government by that person or entity, the Minister may deduct the amount owing to Government from the amount payable to the person or entity. Page | 24 [22] The principles that regulate this provision are contained in Regulation 30 (1), (2) and (3) of the Treasury Regulations, 2014, reiterated in part, for ease of reference to the effect that: (1) Where an amount of public money is due to a person or other entity, but other money is due and payable to the Government by that same person or entity, the Accountant - General shall deduct the amount owing to the Government from the amount payable to that person or entity and, in such cases, the gross amounts of the public money owed and the payment due shall be posted to the Treasury General Ledger; (2) In the case of amounts owed to Government by employees and former employees, the Accountant - General shall arrange for the appropriate amounts to be deducted from the salary, pension or gratuity of the person as the case may be, and if the amount owed exceeds the amount payable, the Accountant - General shall recover the amount payable, and the remaining balance shall then be recovered in accordance with Part X; (3) Before effecting any deduction referred to in sub regulation (2), the Accountant - General shall advise the employee, Page | 25 person or other entity, in writing, of the deduction and offer them the opportunity to pay the amount owing. [23] Clearly, the Government has powers to offset any debts so owing to it from monies due to its employees as contemplated by Section 30 (2) of the Regulations. This power is further augmented by Section 32 of the Public Officers’ Defined Contribution Pension Fund Act that empowers the Government to deduct money from pension benefits due to its employees to satisfy debts that may be owed to it by an employee. The Section provides that: A benefit granted under this Act shall not be assignable, executable, payable or transferable except for the purpose of satisfying – a) A debt due to the Government; b) A maintenance order; or c) a divorce order. Page | 26 [24] Flowing from this provision is Rule 31 which provides in respect of deductions from benefits that: 31.1The Board shall have the right to make such deductions from the benefit to which a Member or other beneficiary is entitled in terms of the Rules as are permitted in terms of Section 32 of the Act and in respect of which a claim has been lodged in writing within such reasonable time of the event giving rise to the benefit as the Board may from time to time fix for making such claims; 31.2 Notwithstanding any contrary provisions in these rules, the Board may, where the Employer has instituted legal proceedings in a court of law against a Member for compensation in respect of damage caused to the Employer as contemplated in Section 32 of the Act, withhold payment of the benefit until such time as the matter has been finally determined by a competent court of law or has been settled or formally withdrawn, provided that, a court order or judgment has been made in respect of such legal proceedings. Page | 27 [25] In my view, the proposed deductions are legitimate as they were monies that the late employee was not supposed to have received or to have received after her passing on. The court draws inspiration in this finding from the decision of this court in Qhobela Selebalo v Principal Secretary, Local Government and Another.17 The Applicant therein was a retired Public Officer. He objected to deductions made by the Government from his gratuity/pension benefits in the form of a salary overpayment. He had been informed about the alleged overpayment, but was not satisfied with the explanation proffered. The court held that the deductions were lawful, and that the fact that the payments were not reconciled immediately did not mean that the salary overpayment did not occur. The importance of consultation was underscored in the case. 17 CIV/APN/114/2012 Page | 28 The duty of a public functionary to consult over a decision that is likely to affect a person adversely [26] It is prudent to enquire what could have caused the 1st Applicant so much distress. Could 1st, 2nd and 5th Respondents have infringed any precepts of fairness in handling his objection to the salary overpayments against the well - established rules of natural justice, particularly the audi alteram partem rule? This rule is a principle of natural justice which promotes fairness by requiring persons exercising statutory powers which affect rights or property of others to be afforded a hearing before the exercise of such powers. [27]As aforementioned, 1st Applicant was written a letter dated 04th July, 201918 informing him of the salary overpayment which he did not reply to. He was further consulted by the Director, Remuneration and Benefits at TSD. The latter attested that he explained to him how the overpayment came 18 Attached to 1st, 2nd, and 5th Respondents’ Answering and Founding Affidavits in the counter - claim as annexure “TSD 3” Page | 29 about even showed him “TSD 1” (progression and variance report). 1st Applicant does not deny that money was paid into his late wife’s bank account when she had already passed on, and naturally not rendered any service for the months stipulated. Hence, the salary was not due. [28] This salary overpayment is glaring. Irritating as they may be, mistakes do happen. “To err is human,” as the adage goes. This appears to have been a genuine error on the part of Government officials. The 1st Applicant appears to have been duly consulted as required by the law (sub - regulation 30 (3) of the Treasury Regulations, 2014) and the rules of natural justice. In motivating 1st, 2nd and 5th Respondents case for effecting of the deductions, Advocate Moshoeshoe argued that Applicants will be unjustly enriched if the salary overpayment is not deducted from the estate of the late Mrs Ralengau. Page | 30 The principle of unjust enrichment [29] Principles regulating unjust enrichment have been restated in the case of Executors Estate Late Lebamang James Monaphathi v Dust Busters (Pty) Ltd and 6 Others.19 One of the essential elements is that the enrichment must be without a legal cause. In the court’s considered opinion, the 1st Applicant and/or other beneficiaries to the estate of the late Mrs Ralengau would, undoubtedly, be unjustly enriched in that he or they would otherwise receive monies that do not legally accrue to the estate. As aforementioned, the salaries paid out were not due and the deceased employee had been paid in excess of what she was otherwise entitled to during the tenure of her office for the periods indicated. Applicant’s entitlement to the pension benefit [30] The 1st Applicant avers in his founding affidavit that they were married with his late wife in community of property on 04th 19 CCA/0045/2022 at para 22 Page | 31 July, 1991 as reflected in a copy of a marriage certificate20 and two sons were born out of the union. It is worth noting that the 1st Applicant initially moved the application alone but later sought to have his two sons, 2nd and 3rd Applicants herein, joined in the proceedings. The application was not opposed and was granted as prayed on 21st February, 2022.21 [31] The 1st Applicant further avers that he is “the sole and universal heir to the estate”22 of his late wife. It emerged that had been appointed heir to her late wife’s estate by a family council through a letter dated 20th June, 2019.23 3rd and 4th Respondents deny that a “sole and universal heir” is entitled to any benefit under the Act. They contend that only a “beneficiary” as defined in the Act is entitled to pension benefits. A beneficiary is defined in Section 2 of the Act “as a dependent or a nominee of a member or a pensioner, as the case may be.” 20 Annexure “MR” to the Founding Affidavit 21 Order on p. 378 of the record of proceedings. 22 Para. 27 of 1st his Founding Affidavit - p. 18 of the record of proceedings 23 Annexed to Applicant’s Founding Affidavit as annexure “MR 6” Page | 32 [32] According to them, whether the Applicant is heir to his late wife’s estate is neither here nor there for pension purposes. They indicate that they do not know at this stage who the deceased nominated as a beneficiary of her pension benefits as such information is still in the employer’s custody, and they will only know once the personal file of the Member is availed to them and the claim lodged.24 4th and 5th Respondents will cross this bridge when they come to it. Whether the Rule on payment of costs by the employer is ultra vires [33] Schedule 1 to the Rules provides that 6.2% of a member’s gross salary shall be paid by the employer to the Fund for costs. 1st Applicant argues that this is ultra vires the Act in that it does not empower the Minister to prescribe contributions for costs. It is 1st Applicant’s case in this regard that the Act never contemplated the payment of operational costs to the Fund by either the employer or the employee, hence, he avers that the Rule is ultra vires the Act. 24 Para 22 of Hanyane - Ramone’s Answering Affidavit on behalf of the 3rd and 4th Respondent p. 117 of the record of proceedings. Page | 33 [34] In terms of Section 4 of the Act (aforementioned), the Minister is empowered, through the advice of the Board, to determine the rate of monthly contributions to be made by the employer and the employee to the Fund. The Section does not mention what comprises these contributions, and therefore, one can safely say even costs are a contribution that could be contemplated by the Act. [35] In terms of the Act, it is the Minister who determines the rate of contribution payable to the Fund by the Government aa well as Members. The rate was published in Legal Notice No. 140 of 2010.25 This Section, clearly, empowers the Minister to determine the rate of both parties’ contribution. In light of this, l find the Rule authorising the payment of costs by the employer intra vires the Minister’s powers derived from Section 4 of the Act. Normally costs are for operational reasons to defray administrative costs. 25 Public Officers’ Defined Contribution Pension Fund (Rate of Contribution) (Amendment) Notice, 2010 Page | 34 [36] Mrs Hanyane - Ramone, the Head of Finance and Administration Division of the Fund averred on behalf of the 3rd and 4th Fund that these are costs incurred in the running of the Fund, and include according to the law: insurance premiums for death and disability benefits for Members, payment of administration services, auditors, investment consultants and others. All these, she says, are for the benefit of Members.26 [37] Assuming, without conceding that the Act does not explicitly empower the Minister to charge for operational costs. I find it intriguing that the 1st Applicant is praying in para (e) for the remittance of 11.2% (made up of the employer’s contribution of 5% of the Member’s gross salary towards the Member’s Fund Credit plus 6.2% towards costs) to him arguing that the Fund undercuts Members by contributing the 6.2% to the Fund instead of increasing Members’ Fund Credits. Whilst arguing that Schedule 1 to the Rules on the payment of costs by the employer is ultra vires the Act (para f), he somersaults to pray that he be given the employer’s contribution at 11.2%. 26 Para 18. 1 of her Answering Affidavit at p. 115 of the record of proceedings Page | 35 It appears the 6.2% deduction becomes legal when it goes to him? For me, this is a contradiction in terms. [38] One could also argue that this is also tantamount to persuading this court to change the law which an exclusive terrain of the Legislature and not courts of law. Moreover, Applicants cannot claim that the late Member suffered any prejudice. At the most, it is the Government that can cry foul, not the 1st Applicant. Conclusion [39] From the papers filed of record and Counsels’ submissions, it is clear that the deceased is indebted to the Government. The court is satisfied that proper procedures were followed in sensitising the 1st Applicant about the salary overpayment. If Applicants were to be paid the pension benefits as claimed, they would benefit unjustly. Page | 36 ORDER [40] In the result, the court makes the following order: a) The main application is dismissed; b) The counter - claim is upheld; c) The Rule relating to the payment of 6.2% by the Government towards operational costs of the Fund is declared consistent with the Act; and d) Respondents are awarded costs of suit. __________________ F.M. KHABO JUDGE Page | 37 For the Applicant : Adv., T. Makhethe KC For the 1st, 2nd, 5th and 7th : Adv., M. Moshoeshoe Respondents For the 3rd and 4th Respondents : Adv., P. 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