ORIGINAL IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA HELD AT BLOEMFONTEIN SCA CASE NO: HC GD (PRETORIA) Case No: 93896/2019 In the matter between: BRIAN MOLEFE Applicant And ESKOM PENSION AND PROVIDENT FUND First Respondent ESKOM HOLDINGS SOC LTD Second Respondent COMMISSIONER: SA REVENUE SERVICES Third Respondent NOTICE OF MOTION FOR LEAVE TO APPEAL KINDLY TAKE NOTICE that, Brian Molefe, (hereinafter called the applicant) hereby intends to make an application for an order in the following terms:1. That leave to appeal to the Supreme Court of Appeal, alternatively the Full Court of the Gauteng Division be granted against the whole judgment and order delivered by the Gauteng Division, Pretoria under case number 93896/2019. 2. The costs of this application and the application for leave to appeal that served before the Court a quo shall be costs in the appeal. 3. Further and / or alternative relief KINDLY TAKE NOTICE FURTHER that the affidavit of BRIAN MOLEFE together with annexure(s) thereto is attached in support of the application. KINDLY TAKE NOTICE FURTHER that if the respondents intend to oppose this application, it is required to lodge its affidavit in support of their opposition, if any, with the Registrar of this Court within 1 (one) month after service of this application upon it TAKE NOTICE FURTHER that the applicant has appointed the address of the attorneys below, at which address the applicant will accept notice and service of all processes in these proceedings. Dated at PRETORIA on this the 10" of NOVEMBER 2022. MOLABA ATTORNEYS INC. Attorneys for the Applicant 806 Stanza Bopape Street Eastwood, Arcadia Pretoria Tel: 012 342 7072 Fax: 012 342 7074And To: LEDWABA MAZWAYI ATTORNEYS Attorneys for the Second Respondent 141 Boshoff Street Nieuw Muckleneuk Service email Pretoria, 0181 —— Ref: LIT.06/2020 nee uae Tel: 012 346 7313 2 Fax: 012 346 7314 ; a Email: vuyiswam@Imz.co.za . Gu leboganr@|mz.co.za loW IS - 19 And To: ESKOM SOC LIMITED Third Respondent Megawatt Park 2 Maxwell Drive Sunninghill Served Electronically Sandton Email: MasekeMP@eskom.co.za HewuNB@eskom.co.zaTO: Email: molefe.m@molabaattorneys.co.za clo BOKWA ATTORNEYS S SMITH 121 PRESIDENT REITZ AVENUE WESTDENE BLOEMFONTEIN TEL: 051 488 6369 EMAIL: clerk @bokwalaw.co.za REF: SSMITH/mnf/M0002287 THE REGISTRAR OF THE ABOVE HONOURABLE COURT BLOEMFONTEIN AND TO: NORTON ROSE FULLBRIGHT SA INC First Respondent’ sAttorneys Service email 15 Alice Lane, Sandton Docex: 215, Johannesburg Email: Michelle. David@nortonrosefulbright.com Amina. Yuda@nortonrosefulbright.com Tel: (011) 685 8745 Fax: (011) 301 3479 C/O Macintosh Cross & Farquharson Embassy Law Chambers 834 Pretorius Street Arcadia, Pretoria Tel: (012) 342 4855 Fax: (012) 342 5113 Ref: C ErasmusIN THE SUPREME COURT OF APPEAL.OF SOUTH AFRICA HELD AT BLOEMFONTEIN SCA CASE NO: HC GD (PRETORIA) Case No: 93896/2019 In the matter between: BRIAN MOLEFE Applicant And ESKOM PENSION AND PROVIDENT FUND First Respondent ESKOM HOLDINGS SOC LTD Second Respondent COMMISSIONER: SA REVENUE SERVICES Third Respondent THE APPLICANT’S-FOUNDING AFFIDAVIT TO THE LEAVE FOR THE LEAVE TO APPEAL NOTICE OF'MOTION |, the undersigned BRIAN MOLEFEdo hereby make an oath and state that: INTRODUCTION 4.1. \|’am-_a major male and the applicant. | am duly competent to make this affidavit. 4.2. The facts to which’l-depose in this affidavit are true and correct and are, unless the context indicates otherwise or | specifically say 0, within my own persorial knowledge. 1.3. "Legal submissions that | make are’ so made on the advice of my legal representatives and | believe them to be correct. THE PARTIES 1.4. 1am the’applicant in this appeal. | was the first respondent in the court of first instance. : 1,5. The’ fespondent is the Eskom pension and provident fund (‘the Fund’)...The first respondent was the applicant in the court of first instance. 1.6. The second respondent is Eskom Holdings. SOC LTD;. the sécond respondent did not take part in the court proceedings in the court of first instance’ save to abide by the decision of the court. 4.7. “The “third respondent is ‘the Commissioner: South African Revenue Services (‘CSARS/SARS"). The third respondent was the third: respondent in the. court‘of first instance and is still remains unchanged. 4/8. The court a quo granted its order on 4" of July 2022 and then refused an application for leave to appeal on 12 October 2022. aTH JE PURPOSE OF THIS APPLICATION 2.1. ‘This is application in terms of section17(2)(2)(b) of the Superior Courts 2.2. 23. BA Act,’2013 (‘the Act’) for leave to appeal against the whole of an order and judgment of his Lordship Davis J handed down on the America's Independence Day:on 4 of July 2022. A copy.of the court order and judgment are attached hereto and marked “—BM1” and “BM2” The applicant applied for. leave to appeal in terms of 17(1)(a)(1) and section 17 (1)(a)(ji) of the Act against the judgement and order. The application was dismissed on 10. October 2022. A copy of the judgment and order dismissing the application is annexed “BM3”. lam seeking leave to appeal to the Supreme Couit of Appeal ("SCA’). \CKGROUND TO THE LITIGATION 3:1. This litigation has persisted: for the last six-(8) years, and it has been before: this court However, this time it for a different reason than the previous occasion. 3:2. shall’be very terse with a synopsis of the background 3.3, The full court of the Gauteng Division, Pretoria dealt with: three separate but consolidated applications in the Democratic Alliance v Minister of Public Enterprises and Others: Economic Freedom Fighters v Eskom Holdings Limited and Others; Solidarity Trade Union v Molefe and Others (33051/2017° 34568/2017, 34042/2017) [2018] ZAGPPHC 1 (25 January 2018) “Solidarity judgment’). 3.4. The questions before the full court were the following:3.4.1 Whether Mr Molefe's admission as a°member of the Eskom Fund was lawful. 3.4.2° Whether the lumpsum transfer from the Transnet Retirement Fund to the Eskorn Fund was lawful 3.4.3: Whether the monthly contributions (including performance bonus contributions) made by Eskom to the Fund on behalf of Mr Molefe were lawful 3.4.4. Whether payment by the Fund of a statutory lumpsum pension to Mr Molefe was lawful 3.4.5. Whether payment of monthly pensions by the Fund:to'Mr Molefe was lawful. 3.5.At para 82(0), the court held as follows” “It ig declared that any payment or sum of money received by Mr Molefe under any purported pension agreement between: him and Eskom is invalid and Mr Molefe is ordered to.repay such amounts within ten days of this order.” 3.6. The Fund approached the Gauteng Division of the High Court, Pretoria “in order for the full court judgment to be “implemented” despite the fact that the full court ordered me to pay'R10 327 074.53 which is a stark contradiction of the R7 981: 727.94. and R2 003 812.90 together with mora interest thereon from 31 October 2019 to the date of repayment. 3.7. Justice Davis J in his order ordered other amounts that would have to be paid and by so doing tried to'unscramble the egg. 3.8.1 shall now turn to the grounds of appeal. GROUNDS OF APPEALMediation 4.1.\n patagraphs §,1.1.to 5.1.8 of BM1 and 10 of the BMS, the court erred when it held that where a party had furnished its reasons for not being willing to: further: mediate a’ matter and where those reasons were not arbitrary and where that party has otherwise co-operated in limiting areas of dispute, leaving the remaining issues outstanding to-be of a legal nature, it is. difficult to discern: grounds on which a court would have been. wrong to not. “direct” a further referral to mediation. The court-ought to have’ held that rule 41A mediation process ‘does not begin and. end with the acquiescence, or lack. thereof, of one of the parties. The rule confers.discretion on the court to direct the parties to consider. mediation. it is a discretion that must be judicially exercised, hot abdicated at the-first sign. of push-back from one of the parties. 4.2. The court further-ought to have- considered Rule 41A(3)(b). The court has the power to direct the parties to consider mediation. It does so in the exercise of its inherent powers to regulate its own processes. as empowered’ by section 173 of the Constitution. It is then up to the parties to agree or not. However, such lack of agreement must have a reasonable or rational basis. 4.3. On these irrefutable facts, this court had enough material on which to exercise its ‘discretion. to direct the parties under rule “41A(3)(b) to consider mediation. It did not exercise its discretion. Of course, it could have exercised its discretion again issuing a direction to the parties to ‘consider mediation. But it failed:to exercise its discretion merely on thebasis. that the Fund had° “responded” to the invitation to a mediated. settlement. 4.4. But even if the court did ‘exercise. its discretion and, .in that exercise, decided niot.to direct the parties to:-consider'mediation, we say it did so ‘on a wrong premise. That premise is that the Fund “responded” to the invitation and rejected it, or that | did not raise mediation as a jurisdictional requirement 4.5.1 submit that the appeal court would find that the court of first instance erred either in failing to.exercise its discretion or in exercising it on the. wrong premise. The mediation’ point’ was raised squarely. as. a jurisdictional requirement in the notice that | flied in-terms of rule 41A. The fact that “the Fund has responded to’... [the] notice”, declining the invitation’ for mediation, does:not render the notice pro non scripfo or irrelevant. The court must still exercise its discretion either to “direct” the parties to consider mediation or not. Its discretion hands are not tied’ just because one of the parties has rejected the other's overtures to a mediated ‘settlement: It’ must exercise its’ own discretion, objectively, “considering all the facts, and decide whether a mediated settlement is worthy of pursuing 4.6.1n para 11 of BM3 the court held that there is another, more compelling reason why an application for leave to appeal on this point cannot ‘succeed. Mr Molefe in his:supplementary answering affidavit stated that he wanted a mediation process to determine “the precise” amount that he owes. Now that a determination of the amount owing had-taken place, the point had become moot. It is inconceivable.that a court of o10 appeal would find that. the: matter. could ‘have ‘been mediated and therefore‘ that the parties must on appeal be directed to. consider. meeting around a mediation table about something which had already. been determined. 4.7:The court a quo with-respect loses sight of the fact that the Fund had furnished me with an “indicative figure” wheteby there were at least three different amounts being claimed by the Fund and for the court to state that a determination-of the-amount owing had taken place ‘is a clear misdirection as this had not transpired, 4.8. Accordingly, on this ground, there is a reasonable prospect of success ‘on appeal: Factual Misdirection 5.1. The court a quo:in paragraphs 5.2.1 of BM1 and 11 of BM3 held that "Mr Molefe'has not put forward any evidence which contradicts the amounts.” Once again, the court lost sight of the fact that | did dispute the amounts that are on paras 3.1 to 3.13 of BM1 | went as far.as ‘getting an actuarial report. That-alone is indicative of me disputing the amount that the Fund came up with, 5.2. This court Ought to find that the Fund's. actuary stated categorically in her report that “her ‘opinion does not cover the correctness and. contractual validity of the flow of funds. among the Fund, SARS, Eskor and |. The Fund’did not produce any independent actuarial: calculatior the court ought to: have accepted that the only actuarial evidence on the1 flow of funds remains that presented on my behalf and should have been accepted. §.3.Accordingly:. on this ground, | submit that there is a reasonable prospect of success on appeal would succeed Material Dispute of Fact 6.1. The court 4. quo made its findings in paragraphs 5.2 of BM1 and 18 of BM3: In para 18 it held that simply put: there was no uncertainty as to which'payments had been made-and to whom they have béen made, it was merely a determination as-to who those-repayments had to be made.: This justified the determination or rather, the quantification of that which the full court had already ordered on the facts “as they stand”. by Way. of robust, common-sense approach to a. dispute on motion as otherwise the. effective functioning. of the court can be hamstrung and circumvented by the most simple and blatant stratagem. To grant leave to appeal woiild be to give'effect to the attempted avoidance of determination of the quantification already referred to. The court ought to have held that there were material disputes of facts in this case that were known by the Fund at'the time of launching these proceedings-these disputes, the’ court ought to have held that were not capable of resolution on the papers. 6.2. The Fund appreciated the materiality of the dispute of fact and went as far-as requesting the court of first instance to refer the matter to oral evidence. @12 6.3. Accordingly, on this aground, | submit that that is a reasonable prospect of success and that an appeal would succeed. Implementation of the Full Court Judgment 7.1.In para, 21 of BM3, the-court held that ‘the determination of the. “final” amount due can therefore: not be viewed as anything but an attempt by the Pension Fund to “implement” the full court's order. It is difficult to understand how Mr Molefé can argue that there is a reasonable prospect of success that a court of appeal would order that this court's determination should be overturied and that the position should revert to. where .it:was four yéars ago with Mr Molefe then still continuing to contest the issue of payment in the amount mentioned by the full court. 7.2.This court ought to find that the court of first instance did not implement the full couir’s order: Instead, it made its own orders. The court a quo ofdered me to pay the Fund a total of just over: R8 Million (together with interest) to be set off against around R850 880 that the Fund must pay tome in’pension conttibutions made by me'to'the Fund, This bears.no relation to the full couirt order. So, to say it is an “implementation” of that relief is factually incorrect. 7.3:The court of first instance with respect misses the point. From the inception l}have never argued against'paying what was due to the Fund, ‘what |_argued was the incorrect amount that was reached by the Fund, ‘and it was also not my argument that this matter should go back to wheré it was four years ago, all that 1 am- disputing is the G7 & correctincorrect amount that | need to pay.13 7.4. Accordingly, on this aground, | submit that that is a reasonable prospect of success and that an appeal would succeed Failure of Judicial Deference 8.1. This can be seen on para 5.3 of BM1 and 22 of BM3. The court held that Mr Molefe argues that this court should have “deferred” to the actuaries or, more in particular, the actuary employed by him as he argues that the Pension Fund's actuarial calculation was not “independent”. The court ought to have held that according to the Fund's actuary | had to pay R4 156 230.82 and according to my actuary I had to pay R1 490 920.89. This is a far ory from the R8 million ordered by this court, even if one factors in the set off of R850 880, the amount ordered by this court is considerably higher than the amount claimed by the Fund. The court of first instance did not explain why the Fund is wrong in its calculation. This is not a role of a court, especially in motion proceedings. The role of courts in motion proceedings is to decide disputes on common cause facts not to divine its own calculations which are a complete departure from those of experts. 8.2.The court a quo should not have second-guessed the calculation of actuaries. This is a principle that | submit an appeal court would endorse in the circumstances of this case. 8.3. Accordingly, on this aground, | submit that that is a reasonable prospect of success and that an appeal would succeed, Compelling Reasons for the Appeal to be Heard Ws14 9.1, Quite apart from the prospects of success on appeal being reasonable, | also submit, pursuant to the requirement in section 17(1)(a)(li) of the Act, there is some other compelling reason why an appeal should be heard 9.2. The first is the Court's narrow interpretation of “mediation” in the rule 41A context. The court of first instance is quite simply mistaken in its understanding of what “mediation” under the Rules entails. Its understanding does not accord at all with the definition of “mediation” in the Rules. 9.2.1 The word “mediation” is defined in the rules to mean “a voluntary process entered into by agreement between the parties to a dispute, in which an impartial and independent person, the mediator, assists the parties to either resolve the dispute between them, or identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute, or clarify priorities, by facilitating discussions between the parties and assisting them in their negotiations to resolve the dispute.” (emphasis added) 9.2.2. But the court of first instance took an unduly narrow view of bv the purpose of the rule 41 mediation process. It says:“The “mediation” referred to on behalf of Mr. Molefe simply contemplates a determination of the “correct” calculation of the amounts in question. Some discrepancies between the amount mentioned in the full court's judgment and the subsequently delivered affidavits are also raised as om, grounds for ‘mediation. 9.2.3. This is an unduly narrow view of my case for a rule 41A mediation process. | sought to explore areas of compromise or to generate options to resolve the dispute and not necessarily only to “correct” the calculations as stated by the court. The “discrepancies” mentioned in the full court's judgment and the subsequently delivered affidavit had merit and were valid grounds to refer the matter for a rule 41A mediation. 9.2.4. In any event, the purpose of a rule 41A mediation process — regardless of how narrowly | may have framed my reasons for requesting it - is contained in the precise wording of the definition of the word “mediation” and it is this: “to ... identify issues upon which agreement can be reached, or explore areas of compromise, or * Judgment, para 5.1.2 159.3. generate options fo resolve the dispute, or clarify priorities...” 9.2.5. But even on the court @ quo’s narrow conception of “mediation” under rule 414, the definition covers the “determination of the correct calculation of the amounts in question” as this court put it. This is because, by definition, a rule 41A mediation process is intended “to identify issues upon which agreement can be reached, or explore areas of compromise, or generate options to resolve the dispute”. 9.2.6. | submit that this appeal court would find that “mediation” has a wider meaning than that preferred by this court as simply “correcting” calculations, and that in any event “correction” of calculations is covered by the definition of “mediation”. Most importantly, whatever the correct meaning of the term within the context of the Rule, the proper meaning of the term constitutes a “constitutional matter” (on the authority of the NEHAWU v UCT case) which must ultimately be decided by appeal courts, including the apex court. That is sufficient ground for leave to be granted The second issue under the “compelling reasons” topic is that the court a quo’s judgment deals with the issue of judicial deference and actuarial calculations of pension benefits in circumstances where the employee is found to have been unlawfully employed and OT 167 therefore unlawfully admitted to membership of the participating employer's pension and provident fund, No such case has ever been decided on the merits by the higher courts in South Africa. This provides another compelling reason why an appeal should be heard by the Supreme Court of Appeal in terms of section 17(1)(a)(i) of the Superior Courts Act. 9.4. Th third issue is that the judgment also deals with the issue of res iudicata which the court dismissed nonchalantly as providing a basis not for defence but for a finding against the party raising it. This is a novel idea in our jurisprudence and provides yet another compelling reason why an appeal should be heard by the Supreme Court of Appeal in terms of section 17(1)(a)(i) of the Superior Courts Act. 9.5. Accordingly, on this aground, | submit that that is a reasonable prospect of success and that an appeal would succeed. THE APPLICANT HAS REASONABLE PROSPECTS OF SUCCCESS ON APPEAL 10. Having regard to the above, | respectfully submit that an appeal against the judgment of the court a quo has reasonable prospects of success as well as there is compelling reason why an appeal should be heard, as required by section 17(1)(a)(i) and (ji) of the Act. 14. | respectfully submit that: 14.4. The court of first instance has not only made errors of fact, but also erred in the interpretation and application of the law; &7 418 11.2. | as the applicant, have reasonable prospects of success in this appeal, for the reasons stated above; 11.3. Granting leave to appeal will be in the interest of justice. WHEREFORE, | pray that the above honourable court to grant an order in terms of the notice of motion to which this affidavit is attached... Thus signed and sworn before me at_/Aéorct on this Se day of November 2022 by the deponent who has acknowledged that he knows and understands the contents of this affidavit, that he has no objection to taking the prescribed oath and that the prescribed oath on his conscience. 4 CMMMISSIONEROF OATHS JOHAN HENDRIK GEORG GERTZEN ‘ommissaris van Ede / Commissioner of Oaths Name: ex officio Adjunk Balju / Deputy Sheriff Pretoria 00S / EAST Capadii Stanza Bopape str (Previously Church str) Arcadia PRETORIA Address:HIGH COURT OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE NO: 93895/2019 DELETE WHICHEVER 15 NOT APPLICABLE. (1) REPORTABLE: NO. (@Q)OF INTEREST TO OTHER JUDGES: NO (3) REVISED. DATE: 4 JULY 2022 SIGNATURE In the matter between: ESKOM PENSION AND PROVIDENT FUND Applicant and: BRIAN MOLEFE First Respondent ESKOM HOLDINGS ‘SOC LIMITED Second Respondent ‘THE COMMISSIONER FOR SOUTH AFRICAN. REVENUE SERVICE Third Respondent Summary: Court order ~ compliance with repayment of benefits received as a result of unlawful membership of pension scheme — quantification. ORDERIn the premises, the following order is made: 4. The Eskom Pension and Provident Fund (the Fund) is directed to repay to Eskom Holdings Soc Ltd (Eskom) the following amounts: i.1. The amount of R 30 103 915, 62 being the amount found by the full court on 25 January 2018 to have been unlawfully paid to the Fund,.together with interest at the prescribed mora rate from date of the unlawful payment to date of repayment thereof. 1.2. The amount of R 1 345.461, 79, constituting Eskom's employer contributions ‘on behalf of Mr Molefe (inclusive of Fund interest less applicable administration fees) together with further mora inierest from 31 October 2019 to date of repayment thereof. 13. The amount of R’ 727547, 64, constituting the total. of Mr Molefe’s own mionthly pension contributions (inclusive ‘of Fund interest ‘less administration fees) together: with further mora interest from 31 October 2019 to date of payment thereof. 1:4. The amount of R. 123 332,98, constituting Mr Molefe’s performance bonus pension contributions (inclusive of Fund interest’ less administration costs) together with further mora interest from 31 October 2019 to date of payment thereof. 2. Eskomvis directed to pay Mr Molefe the post-tax value of the amounts referred:to in paragraphs 1.3 and 1.4 above.3. Mr Molefe is ordered to, repay the Fund the amounts of R.7 981 727,94 and R 2.003 812,70 together with mora. interest thereon from 31 October 2019 to date of repayment. 4. The Fund is entitled to set‘off against the above amount due by Mr Molefe, the nett balance of the Transnet Retirement Fund lumpsum received from or on behalf of Mr Molefe, tipon receipt of a tax directive from the South African Revenue Service in. respect of the Tax payable ‘on such amount, inclusive of accruals thereto subsequent to 31 October 2019. 5. The payment referred to in paragraph 3 above shall be made within.10 days after the set-off contemplated in paragraph 4 has occurred. 6. Mr Molefe is ordered to pay'the costs of the Fund and of SARS, such costs to include the costs of two counsel where employed. JUDGMENT This matter has been heard in open court and is otherwise disposed of in terms of the Directives of the Judge President of this. Division. The judgment and order are accordingly published and distributed electronically: DAVIS, J a Introduction On 25 January 2018 a full court of this Division declared that “any payment ‘or sum-of money” received by Mr Brain Molefe under “any purported pension. agreement” between him and Eskom Holdings Soc. Limited.QI 2.2 (Eskom) is’ invalid. Mr Molefe was ordered to repay “such amounts” within ten days from date of that order, Four years later, repayment still hasn’t been done and Mr Molefe claims that there is a factual dispute about the exact amount to be repaid. The 2018 order of this court ‘The full court of this Division dealt with three separate but consolidated applications. ‘These applications followed upon the release of a report by the then Public Protector containing ‘damaging allegations against Mr Molefe of abusing his position at Eskom to benefit “the Gupta family” and businesses under their control: The telease of the report prompted Mr Molefe to resign and seek early retirement and to become a’member of Parliament ‘shortly. thereafter, representing. the African National.’ Congress. © As part of his early retirement, Mr Molefe elected to receive one-third of his pension benefits as a lumpsum. ‘These benefits were created as a result of a payment of somé R30,1 million made. by Eskom to the Eskom Pension and Provident Fund (the Fund). ‘The: full court found that, at thé time of Mr Molefe’s resignation, he was employed on’ ‘a fixed term contract ‘and therefore disqualified’ from participating inthe Fund, The full court further found that “tlie decision by Eskom to waive penalties and buy Mr‘Molefe extra 13 years of service totalling R30,1' million after only 15 months service at the age of 50 stretches incredulity and is-inlawful. for want of compliance with the rules of the fund. What is most disturbing is the total lack of dignity and shame by people iri leadership positions who abuse public funds with naked greed for ‘their :own benefit. without a moment's. consideration of thecircumstances of fellow citizens who live in absolute squalor throughout the country with nto basic services”. Having thereafter: found that “the reinstatement of Mr Molefe as Group Chief Executive Officer at. Eskom is at'variance with the principle of legality” the full court made the following order: “a. ‘The decision taken by the Board of Eskom in November 2016 to accept. Mr Molefe’s “early retirement” proposal ix reviewed .and set aside. b. The decision made by the Minister to appoint and: reinstate Mr Molefe to the position of Group Chief Executive Officer at Eskom is reviewed and sét aside, ¢ It is declared that any payment or sum of money received by Mr. Molefe under’ any purported pension agreement by him ‘and Eskom is invalid and Mr Molefe is ordered to repay such amounts within ten days from date of this order. d. Mr Molefe is ordered to pay the costs, including the costs of two Counsel where employed”. Mr Molefe unsuccessfully applied for leave to appeal to both the Supreme Courtof Appeal and the Constitutional Court. The application for leave to appeal to the Constitutional ‘Court was refused on 8 August 2019. On.his calculations; Mr Molefe contends that the nett amount that he has to repay is R'1'490'920, 88. To date; even this amount has not been paid: The order of the full court has therefore not yet been satisfied or complied with.[3] we 3:3 3.4 ‘The Fund’s calculation of the amount due and the evaluation thereof: Prior to joining Eskom, Mr Molefe was the Chief Executive Officer of Transnet Soc Ltd (Transnet) and he contributed to the Transnet Retirement Fund (the TRF). On the incorrect assumption that he was eligible to be a member of the Fund, Mr Molefe transferred the-lumpsum he received from the TRF upon leaving Transnet, to the Fund who thereafter held and invested it on Mr Molefe’s behalf. The TRF lumpsum transferred to the Fund in October 2015 was R 4.281 699, 87. On the date of Mr Molefe’s resignation from Eskom an amount of R778 949, 15 had accrued on this amount, totaling R 5 060 649, 02. AtMr Molefe’s election, he chose to receive one-third of this, being R 1686 883, 01. The taxable portion thereof, beiig R337 720, 86 has béen paid by the Fund to SARS.. The balance of the TRF Jumpsum still held'by the Fund, has until 31 October 2019, being the operative date’ used by the parties in the papers for purposes of calculation, accrued further growth in the amount of R.769 127, 11, leaving a total amount then held in favour of Mr Molefe of R 4.169 893, 12. The Fund has no objection to the set-off of this amount against Mr Molefe’s indebtedness to the Fund and, based on the agreements reached regarding the calculations made by’ the actuary employed by. Mr Molefé and subsequently contained in joint minutes of the actuaries employed, neither has Mr Molefe. However, once set-off oceurs and .the TRF balance: is to be released for purposes thereof, further tax thereon will be due to SARS, for which purposes it will be obliged to issue’a tax directive as contemplated in the Tax Administration Act 28 of 2011 (the TAA).3.5 3.6. 3.7 3.8 39: 310 In addition to the TRF lumpsum’ and the R30,1_ million subsequently received from Eskom as found in the full ‘court judgment, the. Fund also received “pension contributions” from Eskom. These comprised of both employer and employee contributions. The employer pension contributions amount.to R 993795. 86 which has. accrued interest in the amount of R351 665, 93 as at 31 October 2019, totaling'R 1345 461, 79: This is an amount which is to be repaid by the Fund to Eskom. Eskom also paid R 537387, 13 on. behalf of Mr Molefe as his “contribution” to his purported pension benefits. This amount, together with interest theréon in the amount of R 190.160, 51 as at31 October 2019, totaling R 727 547, 64 must be repaid-to Eskom, who will then-be obliged to withhold (and pay over to SARS) a tax portion calculated on.thisamount as part of Mr Molefe’s gross remuneration. The balance must be paid by Eskom to Mr Molefe. I interject to point out that Eskom, being a party to this litigation, has delivered a notice to abide this court’s decision. Excluding the TRF payments, pursuant to the pension arrangement which the full court has found to be unlawful, Mr Molefe received an-amount of | R.7.989 819, 73 in February 2017. Of this. amount, R 1619 480, 13 was paid to SARS, resulting in Mr Molefe being paid.R 6 370 339, 60 which should not have'been paid to him, Together with interest of R'1 426.227, 24 calculated up.to 31 October.2019, this amounts to. R:'7 796 566; 84. In addition, Mr Molefe received ’a' 3%‘ enhancement on his pension from the Fund in an amount of R 51 784, 20. Together with interest of R 11 593,o 3.1 3.13 74, this totalled R 63 377, 94 as at 31 October 2019. This amount, as will be shown later, did not attract additional tax. In- addition ‘to the amounts mentioned in paragraphs 3.6 and 3.7 above, Eskom also paid performance bonus pension contributions of R 113 019, 57 to the Fund. These will have to be repaid to-Eskom.. However, as.at the date of Mr Molefe’s purported retirement, growth on this amount was-R 4751, 26:. Mr Molefe received’ a third thereof in the gross amount.of R 39 256,.94 of which R 21 482, 16 was paid to him and R:17 774, 78 was paid to SARS.. Together with interest on the amount of R 21 482,16. as at 31 October.2019; the amount to be repaid by Mr Molefe is R 26 291,71 Prior to the findings of the.full court, the Fund has also paid Mr Molefe an amount of R95 491,45 by way of monthly pension payments. The actuaries have in their joint minutes agreed that repayment of this money-is also due by Mr Molefe. To sum up then, in fespect of the amounts paid to Mr Molefe by the Fund, they. amount, together with interest as at 31 October 2019, to the following: = R7796 566, 84 (par 3.9-above) = R 63377, 94 (par 3.10 above) - RK - 26 291, 71.(par.3.1 labove) -' R95 491, 45 (par 3.12 above) R7981 727, 94 ‘The summary of the tax paid by the Fund to SARS is reflected. in the ‘following table, which also indicate the interest calculated thereon up to 31 October 2019:3.13: 3.16 (4) 4.1 Component _ | Lumpsum Proportionate | Fund [Tax tax interest ‘on. interest tax TRF/umpsim | RI 686 883.01 | R337 720.86 [R7S610.83 | rec Eanes srformance | R39.256.94° | RI7774.78 | R3979.52_- | R21 754.30 | | Pe | bonus | Enhancement” R51 784.20 | Nil Nil nil L aie al | Statutory: R7989-819.73 | R1-619 480.13 [R362 578. 27 | RI 982 058.40 | /-lumpsum Total R9 767 743.88 | Ri 974975.77 | R442 168.62 | R2417 144. In respect of the R 413 331, 69, being the tax plus interest componént in respect of the TRF lumpsum, the Fund argued that SARS.“may retain” this amount, ‘subject to further directives being issued once the position is “regularised”. This will occur once the set-off referred to in paragraphs 3.3 and 3,4 above is affected: In respect of the balance of the. amount being R 2 003 812, 70, the Fund claims that SARS be directed to repay this amount to the’Fund. I shall deal with this contention together with SARS’ response hereunder. SARS" positioi SARS has.no. quibble with the Fund’s attempts at implementing the order of the full court. Its argument was simply that the taxes paid to it were paid on behalf of. the taxpayer, Mr Molefe.. Any. dispute regarding the43 4.4 45 10 assessment of tax’or allocation of funds received were matters between itself and the taxpayer, The relationship between SARS and the taxpayer, Mr Molefe ig governed by the Income Tax Act 58 of 1962 (the ITA) and the TAA. SARS has no relationship with nor any:duty of repayment to the Fund. The Fund is merely seen as the statutorily obliged implementing agent in respect of the taxpayer’s payment of taxes. As far as the subsequent “adjustment” or “corrections” of taxation is concerned, section 190 of the TAA caters’ for situations where income received by a taxpayer.is refundable to that person. In this fashion, the TAA has been described by SARS as a “self-correcting system”. Any refund summarily made to the Fund (or Mr Molefe) by SARS would be contrary to the provisions’ of the ITA and the TAA, SARS is only empowered. to repay any amount of tax to'a taxpayer in’ the. narrowly described circtimstances set on in section 190 of the TAA... These are limited to “(a) an amount properly refundable under a tax Act and, if so, reflected in dn assessment or (b) the amount erroneously paid in respect of anassessment in éxcess of the amount payable in terms of the assessment”. Until these circumstances arise, SARS has no authority to repay the taxes claimed by the Fund: ‘The illegality or unlawfulness of the underlying basis upon which’ Eskom paid the Fund and. the Fund subsequently paid Mr Molefe, does: not aittomatically result in any obligation by SARS. to repay taxes: paid to it, - calculated on those payments. See Janse van Rensburg NO v Botha 2011 JDR 0513 (SCA)-and Commissioner’ for Inland Revenue v Deagoa Bay Cigaretie Co Lid 1918 TPD 391.4.6 “47 (5) Sl 3.1. wv In terms of section 105 of the TAA, should any dispute arise between Mr Molefe and’SARS ‘as to whether, after repayment of the monies received from the Fund, he has a tax credit or not, that can only be dealt with in terms of Chapter 9 of the TAA, but this falls outside the ambit of the present application. See inter alia MP Finance Group CC (in liquidation) v CSARS 2007 (5) SA 521 (SCA). In these. premises, | find that thé Fuhd is not entitled to claim repayment from SARS of the taxes paid to it. ‘These payments were made on behalf of Mr Molefe and is therefore repayable by. him to the Fund. Mr Molefe’s arguments In heads of argument delivered on behalf of Mr Molefe, four issues have been raised. They.are (1) that.the matter was capable of resolution via mediation, (2) that there are material ‘disputes of fact; (3) that the issues raised have already been determined and (4) that'there is a “need for judicial deference in’ matters. that fall outside the Court’s. area: of proficiency”. [ shall deal with each of these issues hereunder, Mediation Where the process of mediation, introduced into this Court by Rule 41A of the Uniform Rules, contemplates a negotiated settlement which involves some give-and-take-and concessions of both parties, such as a mediation for example.conducted by the Souith African Human Rights Commission in Ellaiutie-v-Madrasah Taleemuddin Islami¢ Institute and Another 2021 (2) SA 163 (KZD), this is not what the Heads of Argument on behalf of Mr Molefe contemplatés.” ‘The point is also- not raised as a jurisdictiondl one5.1.2 5.13 S14 ‘as the Fund’has resporided to:Mr Molefe’s notice in tetms of Rule 41A, a response to which I shalt refer hereinlater. The “mediation” referred to on behalf of Mr Molefe simply contemplates ‘a determination of the “corréct” calculation of the amounts in question. Some discrepancies. between the amount mentioned in the full court’s judgment aid the’ subsequently delivered affidavits are also raised as grounds for “mediation”. In‘support of Mr Molefe’s purported bona fides, ie tendered “fo repay to the Eskom Fund the difference (if any) between the cumulative total” of “the exact amount of contributions” received by the Fund from Eskom and any growth that he (Mr Molefe had earned thereon “on the one hand and the amount actually received by him as early’ retirement benefit from the Eskom Fund; on the other, to-which the courts have now held Mr Molefe is notentitled”. used the words “purported bona fides” for if real bona fides had existed, one would.have expected Mr Molefe to at least have paid the. amount of R:1 490 920, 88 which his actuary had calculated as.owing, by now.. As stated before, the full court has ordered repayment and the 10 days conteinplated ‘in that order. have, at the latest, expired after the last appeal attempt was unsuccessful on 8 August 2019: The presence or absence of bona fides are however, irrelevant for purposes of calculation based on facts and on legal principles:and that is where the parties (and théir actuaries part ways). The joint minutes of the actuaries indicate two principal differences. The first. is the claim by Mr Molefe to “off-set” the “employment contributions” made by his employer Eskom to the Fund in the amount of R 2 218.571, 33 from the amount owed by hiin to the Fund: The second is to “off-set” the tax portion directed by SARS:5A 5.1 Suv 3 6. 2B and paid by the Fund to it in the amounts of R 446 738, 60 from, the oné- third pay-out of the TRF lumpsum. In respect of the employment contributions, Mr Molefe-and his actuary argues that ‘his employment contract with Eskom required him to be a member of a pension fund and that there is therefore “no basis to.return the funds to Eskom”... In view of the confirmed full court judgment and the findings made therein, there is'no scope for Mr Molefe to mediate him out of those findings. Mr Molefe’s:argument is further that these “off-sets” should be treated the same as “using his contribution from the Transnet Retirement Fund”... This “argument is also’ without foundation as there is a material difference between the nature of the two sources of funds. Mr Molefe was entitled to ~ the TRF funds. whereas he was not entitled to the payment of any pension contributions from Eskom to the Fund. Those contributions should be retumed to. Eskom and insofar as it formed part of his agreed gross remuneration, Eskom’ should pay taxon behalf of | Mr Molefe thereon and pay him the balance. In respect of the “offset” of the tax paid to SARS in respect of the one-third of the TRF funds paid as'a lumpsum to Mr Molefe, his actuary’s contention in the joint minutes is that “nor taking this into account will leave Mr Molefe out-of pocket as it is doubtful-that he will be successful claiming this money back from SARS”. The consequence of this argument is absurd to say the least. Mr Molefe contends that, in'respect of the amount that he owes the Fund, not only should the balance of the TRF funds which the Fund had received and still holds for Mr Molefe’s credit be set-off, but also the amount which the Fund no longer holds and which it had paid over (on behalf of Mr Molefe) to SARS. He therefore seeks to claim a credit-againstSAB 5.2.4 wn iS bs 14 the Fund in respect of funds which are not in.the hands of the Fund but in the hands of SARS. The only aspects which could legally have been mediated, have been done. These are the appointment of actuaries and the production of joint minutes, the agreement in respect of set-off referred to in paragraph 3.3 above and the calculation of the amount referred to in paragraph 3.12 above, These were also the fund’s responses in‘tespect of the invitation to mediate the disputes. Factual disputes As.can be expected from issues.involving mathematical calculations, the actuaries in. their joint minutes confirmed that, save for the issues mentioned \in paragraphs 5.1.4 to 5.1.6 above (and. the impact these differences ‘have on the: final calculation), they “are agreed on all other aspects”. “As’poihted out in-the-discussion in paragraph 5.1 above, these differences are legal and not factual iri nature. I find that the remainder of arguments raised on’ behalf of Mr Molefe under this topic are not the kind of disputes which cannot be resolved “on the papers”. Mr Molefe has not put forward any evidence which contradicts the amounts set out above. in paragraphs 3.1 to 3.13'and the total computed there. Once the two deductions (the pension contributions and the ‘TRF tax payment) are reflised, as discussed in: paragraphs 5.1:5 and 5.1.6 above, then one is back at the:starting point of the Fund’s demands. No “real” or “genuine factual dispute” has therefore been established as contemplated in Ripoll-Dausa ¥ Middleton NO and Others. 2005 (3) SA-141 (C) a 151A — 153C and’as discussed in Wightman t/a J W. Construction. v. Headfour (Pry) Ltd and Another. 2008 (3) SA371 (SCA) at [12] and [13].5.3 5.3. §.3.2 5.3.3 a5 Suc Judicial deference As. justification for this defence, the Heads of Argument delivered on behalf of Mr, Molefe contend as. follows: “On the Eskom Fund's calculation, Mr’ Molefe must repay R 4 060 739.37 or R4 156 230. 82. On Mr. Molefe's calculations, he need repay.no more than R 1 490-920, 88. The explanation is clear from Mr Molefe’s actuary’s report. This is hardly din issue for a Court which is not proficient in actuarial calculations. This Division, and.the Constitutional Court, has. pronounced on the need for courts to defer to others where it is less proficient”. This argument can succinctly.be-dispatched with. The R 1 490 920, 88 which Mr Molefe (and his actuary) alleges is the only amount due, has been calculated by them as follows (with one cenit difference): Initial amount claimed by the Fund. R4 060 739, 37 Plus: Additional monthly payments R95 491, 45 R4 156 230, 82 Less: employment contributions* R2 218 571, 33 Less: tax claimed on TRF* R__ 446-738, 60 Nett amount allegedly owed R 1.490 920, 89 As Set out above, once the two deducations indicated with an asterisk have been disallowed, the: calculations are ‘simple and no’ further actuarial calculations have to be “deferred” to. These calculations have also‘ only been made by Mr Molefé with reference to the amount “initially” claimed by the: Fund and not with-due consideration of the amounts.referred to in paragraphs 3 and 4 above.3.4 (6) 6.1 16 Res iudicata Mr Molefe fuither argues that the disputes between the parties have already been decided’ by’ the full court. and ‘that the present application was unnecessary. I agree but for‘ the one proviso: if there was already legal certainty that. Mr Molefe should pay back all the benefits received asa result of the unlawful participation in-the-benefits of the pension scheme adiministered.by the Fund, why has that not yet taken place? The fact that the order of the. full court has not yet been implemented and that Mr Molefe resisted complying with a demand issued in pursuance thereof after his last attempt at appealing that judgment had failed, justified, in my view, the cuirent application... The issue of res iudicata therefore, rather: than constituting a defence, confirms Mr Molefe’s obligation to. proverbially “pay back the money”: The res iudicata argument therefore only extends to:the extent that the initial and amended notices of motion of the Fund include prayers in’ respect of declaratory relief already’ granted by the full court. For the remainder, that which the full court has adjudicated on, needs ‘to -be “implemented. The present. application is. for ‘such implementation relief. Appropriate relief In the premises as set out above, I find that Mr Molefe is obliged, as ordered by the full court, to pay back the amounts set out in paragraph 3.13 above (which include interest up to. 31 October 2019). Insofar as Mr Molefe is entitled to a set-off of the balance of the amount of his TRE Jumpsum still-held by the Fuhd, 1 déem it appropriate to defer vo SARS’ determination -of the taxation. payable upon set-off as being the event whereby the balance accrues to Mr Molefe as a taxpayer, rather than attempting to calculate that-amount and run the risk of falling foul of Mr6.3 64 6.5 6.6, v7 Molefe’s “deference” argument. He cannot be prejudiced by this approach and I shall reflect it in the order. The Fund formulated the relief‘claimed in its amended notice of motion on the basis that it is only obliged to refund Eskom upon the receipt of funds from Mr Molefe. .J.find this to be opportunistic. Once the full court has found that the payment of funds by Eskom to the Fund in pursuance of the early retirement scheme pertaining to Mr Molefe have been unlawful, the obligation to repay those amounts arose in law, irrespective of a successful recovery from Mr Molefe or not. Such amount should, additional to the interest already calculated, include mora interest at the rate prescribed by the Prescribed Rate of Interest Act 55. of 1975. In addition to the amounts referred to in paragraph 6.1 above, the Fund is ‘entitled to recover the tax amounts paid on Mr Molefe’s behalf from him (and not SARS) which, including interest up to 31 October 2019, amounts to the amount mentioned in paragraph 3.16 above, being R 2 003 812, 70. In similar fashion’as in the full court, I find'that costs should follow the event. This means that Mr Molefe should be liable for the Fund's costs. SARS has, in’ addition, ‘been ‘dragged into the fray, principally by Mr Molefe, who sought to have taxes already paid to SARS, representing the fiscus, to be reversed. ‘In this regard Mr Molefe ‘had been substantially unsuccessful and he should therefore also pay SARS’ costs. The timing of the repayment should, as initially ordered by the full court, be within 10 days, but, due to the tax implications regarding the balance of the TRF funds:held by the Fund, that, should be 10 days after set-off has taken place, whereby the final balance will be determined,(71 Order In the premises, the following order.is made: 1. The Eskom Pension and-Provident Fund (the Fund) is directed to repay to Eskorn Holdings Soc Ltd (Eskom) the following amounts: The-amount of R30 103 915,-62 being the amount found by the full court on 25 January 2018 to have been-unlawfully paid to the Fund, together with interest at the prescribed mora rate from date of the unlawful payment to date of repayment thereof. The ‘amount of R 1 345 461, 79, constituting: Eskom’s.employer contributions on behalf of Mr Molefe (inclusive of Fund interest less’applicable administration: fees) together with further mora interest from 31 October 2019 to date of repayment thereof. The amount’ of R .727 547,. 64, constituting ‘the ‘total of Mr Molefe’s.own monthly. pension contributions (inclusive of Fund interest less administration. fees). together with further ‘mora interest from 31 October 2019.to date'of payment thereof. The. amiount. of. R123 332,98, “constituting Mr Molefe’s performance bonus. pension contributions (inclusive of Fund interest Jess. administiation costs) together with further mora interest from 31 October 2019'to date of payment thereof. 2. Eskom is direcied to pay. Mr Molefe the post-tax value of the amounts referred to in paragraphs 1,3 and 1.4 above.19 3. Mr Molefe is ordered to repay the Fund the amounts of R 7 981 727, 94 and R 2003 812, 70 together with mora interest thereon from 31 October 2019 to date of repayment. 4. The Fund is entitled to set-off against the above amount due by Mr Molefe, the nett balance. of the Transnet Retirement Fund lumpsiim received from or on behalf of Mr Molefe upon receipt of a tax directive from the South African Revenue Service in respect of the Tax.payable on such amount, inclusive of accruals thereto subsequent to 31 October 2019. 5. ‘The paymenit referred to in paragraph 3 above shall be made within 10 days after the set-off contemplated in paragraph 4 has occurred 6. Mr Molefe is ordered to pay the costs of the Fund and of SARS, such costs to include the costs of two counsél where employed. DAVIS Judge of the High Court Gauteng Division, Pretoria Date of Hearing: 17 March 2022 Judgment delivered: 4 July 2022APPEARANCES: - For Appellant: Attorney. for Appellant: “For the 1* Respondent: Attorneys for the I" Respondent: For the 3 Respondent: Attorneys for the 3" Respondent: 20 Adv T Motau SC together with Ady R Tshetlo ‘Norton Rose Fullbright South Africa Inc., Johannesburg, “clo Macintosh Cross & Farquharson, Pretoria Adv V Ngalwana SC together with Adv § Nelani Molaba Attorneys, Pretoria Adv L Sigogo SC together with Adv L Kalipa ‘Lédwaba Mazwai. Attorneys, PretoriaHIGH COURT.OF SOUTH AFRICA (GAUTENG DIVISION, PRETORIA) CASE Ni DELETE WHICHEVER IS NOT APPLICABLE. (1) REPORTABLE: NO. | @) OF INTEREST.T0 OTHER JUDGES: NO 93895/2019 In the matter between: ESKOM PENSION AND:PROVIDENT FUND Applicant and BRIAN MOLEFE First Respondent ESKOM HOLDINGS SOC LIMITED Second Respondent THE COMMISSIONER FOR SOUTH AFRICAN REVENUE SERVICE Third Respondent Summary: application for leave to appeal ~ alleged incorrect application of Rule 4]4— allegations of misdirection and lack of judlicial deference —no prospect of success on appeal — leave refused.ORDER The application for-Jeave to appeal is refused with costs, such costs to include the employment of two counsel. JUDGMENT This matter has been heard in open court and is otherwise disposed of in terms of the Directives of the Judge President of this Division. The judgment and order are accordingly published and distributed electronically. DAVIS, J Introduction [1]. On 25 January 2018 a full court of this Division ordered Mr Brian Molefe to repay “airy sum of money” received by him in terms of “any purported pension agreement” between him and Eskom. After'unsuccessfl attempts to appeal the full court judgment, the Eskom Pension and Provident Fund (the Pension Fund) Sought to recover the amounts due by Mr Molefe. On 4 July 2022 this court {quantified the amount-due by Mr Molefe-and authorised a set-off against ‘that amount of the after tax balance of Mr Molefe’s Transnet Retirement Fund (TRF) lumpsum previdusly paid to the Pension Fund. Mr Molefe now seeks leave to appeal this order. [2] “Adv Ngalwana SC appeared for Mr Molefe at the hearing of the application for leave to appeal, together with Adv-Nelani.. At the hearing, they handed up a12+ page “note for argument”. In this note, the following were advanced as reasons why there was a reasonable prospect of success-on appeal! (2) the court failed to exercise @ disoretion in.terms of Rule 41A (3)(b) (the “mediation point”); (b) the court “travelled” beyond the pleaded facts; (¢)° the court erred in its treatment of disputed facts; (d) the court“ erred in finding’ that it -was implementing the full court’s judgment; (e). the court failed to exercise judicial deference. [3]. In addition. to the above, Mr Molefe also argued that there are two compelling reasons? why leave to appeal :to the Supreme Court of Appeal should be granted. These were, firstly that a “proper” interpretation of Rule 41A is required’ by’a different court than one of first instance and that this is a “cénstitutional matter”. The second reason is that the court had substituted its own. calculations. for that. of the actuaries and thereby traversed beyond ‘the pleadings. [4]. In the “note for argtiment”, the point was expressly made that there were numerous grounds of appeal'raised in Mr Molefe’s application for leave to appeal and the fact that these weren’t traversed. in the note, should not be seen as an abandonment of them. The fact that these other grounds had not been traversed, justify in my view however, the inference that they. carry less weight than those actually argued. . | shal! deal-with the argued points first. ‘The mediation po * As required by section 17(1)(aM\i) of the Superior Courts Act 10 of 2013 (the Act). * As contemplated in section 17(1)(a)(il) of the Act.[5] Rule‘41A was introduced into this court's rules with effect from 9 March 2020. This rule was therefore not in. operation ‘when the Pension Fund’s application for quantification, was launched on 13 December 2019. The requirements of Rule 41A (2)(a) and (b), requiring an applicant, when launching an.application to serve’a notice indicating. whether such applicant agrees to or opposes a feferral to'mediation and which imposes a similar obligation on a respondent; when opposing an application to deliver @ notice indicating, its attitude towards a referral to mediation, were not applicable to this matter. It is for this reason that Mr Molefe places reliance on Rule 41A (3)(b), which provides that a court “may at-ary stage before judgment direct the parties to consider referral of a.dispute to.mediation”.. Any other argument based on Rule 41A (2) notices will be misplaced. [6] . The issue. of referral to mediation’ was not raised by Mr Molefe in his answering affidavit delivered on 16. July 2020 (when the rule was already operational)... It was only. raised by him ina supplementary answering affidavit delivered on some 18 months later 1 February 2022. [7]. In the. said supplementary answering affidavit, Mr Molefe set out his position regarding the issués which he believed could-be mediated. The first issue in his view, was that the Pension Fund had conceded that the funds due to Mr ‘Molefe in'respect of his TRF lumpsum payment may be set-off against his debt, bur that the'Pension Fund “bauilks ata mediated resolution”. The issue of set-off has’ indeed. been conceded by the. Pension Fund and featured in: all the calculations, as well as in the judgment and the order. There was, at the time of hearing the matter’, therefore nothing to mediate about this:aspect. It was already a “done deal” as they Say. [8]. The second point which Mr Molefe raised in his supplementary answering affidavit, which was to:be mediated, is the issue about the meeting of actuaries.Mr Molefe qtioted the contents of a letter from the Pension Fund's attorneys, dealing with the issues of mediation. The Pension Fund's position is quoted as being the following: “Our élient opposes the request for the matter to be referred to mediation for thé reasons. set out herein’... As indicated in the case management meeting, our client is amenable to the respective actuaries meeting sues that may’ arise for dispute'in order to be of incan effect to. curtail the’ assistance to the court and to assist the efficient administration of justice by ensuring an efficient discharge of obligations flowing form the order of the full bench”. [9]: Pursuant to this, the actuaries have indeed met and have produced a set of joint minutes and I have directed thereafter that the minutes be revised so that it clearly set out the actuaries’ areas of agreement and disagreement, with reasons being furnished for thé lasimentioned. At time of the hearing of the matter, this had:béen done. ‘The ateas of disagreement: were in respect of legal argument and not in respect of issues of calculation; This issue. has been dealt with in the judgment against which leave to appeal is being sought. { 10]. Despite this, thé argument is that the parties should have been directed to consider'a further referral to mediation. One must bear in mind that mediation is a yoluntary process’,.. This, much Adv Ngalwana SC conceded... Where a party had furnished its reasons for not being willing to further mediate a matter and where those reasons were not arbitrary and where that paity has otherwise co- operated in limiting areas of dispute, leaving the remaining issues outstanding to be of a'legal nature, itis difficult to discem grounds on which a court would have ‘been wtong to not “direct” a further, referral to-meditation. I have dealt with this aspect, having due regard to the nature of the outstanding disputes, in paragraphs >See the Wording of Rulé 41A (1): “mediation is @ voluntary pracess entered into by agreement between the parties to 4 dispute ..” (my emphasis and the discussion of the rule in Kalagaci Manganese (Pry) Lid and Others IDC and Others-(2020/12468) {2021] ZAGPIHC 127 (22 July 2021).5.1.1 t0'5.1.8 of the judgment. Based on the same arguments re-advanced during the hearing of the application for leave to appeal, I find no reasonable prospect that a court: of appeal: would find that the discretion not to direct parties to reconsider a referral fiad not been exercised. The alternative argument by Adv ‘Ngalwana SC that the “failure” to direct the parties was based on the fact that no referral should take place, simply because the court had found that the Pension Fund -had “responded” to. ‘the invitation to mediate and had rejected it. The argument was that this. was an improper exercise of the Court's discretion This is. an incorrect oversimplification, which is not supported by the facts. [11]. There is another, more compelling reason why an application for leave to appeal on this point cannot succeed. Mr Molefe in his supplementary answering, affidavit stated that he wanted a mediation, process to determine “the precise” amount that he owes... Now that a determination of the amount owing had taken place, the point had become moot, It is inconceivable thiat a court of appeal would find that the matter could have been mediated and therefore that the parties must on appeal be directed to: consider meeting arotind a mediation table about something which had already been determined. ‘This circular reasoning cannot be aground upon which leave to appeal should be granted. ‘The factual misdirection [12]. In the main judgment, this court had found that “My Molefe has-not put forward any. evidence which contradicts the amounts ..." Adv Ngalwana SC argued that his was @ misdirection as Mr Molefe did (so.as to énsure that this caurt-does not miss the emphasis, this word was underlined and emboldened in the note for. argument) dispute the amount. This he apparently did by way of his denial and the furnishing of an actuarial calculation:[13]. This. argument still misses the point.. The question as to what Mr Molefe contends he. received and’ what he alleges he has to. repay has. still not been ariswered by him: he denied the allegations of what the Pension Fund said had been paid to him, but, apart from the bald-denial, he produced no particularity or evidence of what his Version was of what he had then actually received. The best he could do, was to'say that amotints had been paid:to SARS, but even on that score, the figures were supplied by the Perision Fund and by SARS. Mr Molefe contributed no-evidence to this debate’. [14] - To illustrate the absence of evidence, or even of a version which. would actually have created a genuine and real factual dispute, | asked Adv Ngalwana SC what his client contended ‘that he actually owéd. The answer repeated the argument made in Mr Molefe’s affidavit that, “if anything”, it would be. “no more than” R | 490 920, 88. This is not.a definitive answer and constitutes simply argument and not any evidence ‘of factual nature. ‘Simply put, Mr Molete.argues that the amount Ordered:is incorrect, but does not say what the alleged correct amount would be. [15]. Similaily, the reliance.on the actuarial calculations does not save the day for Mr'Molefe.. The actusry employed by him could only, in the absence of evidence produced by Mr Moieie, rely of the evidence produced by the Pension Fund and SARS. No wonder that the points of difference between the wo actuaries do not relate to calculations or factual’ differences; but to’ the legal questions relating to inclusions or deduction of what Mr Molefe Would have been entitled to or not: “The “flow of funds” argument advanced by Mr Molefe does not detract from: this and the calculations issue was-dealt with in the judgment.: I “The Supreme Court of Appeal had more tharta decade ago reiterated that, in instances where a mere dénial ‘would fot suffice aid a party ¢laims'to have knoiviedge of a fact or wishes to dispute factual evidence, itis incumbent upon him to make those factual allegations or the produce evidence. Failure to do so, would mean that there is infact, no factual dispute.; See Wightman t/a J W Construction v Headfour (Pty) itd and Another 2008 (3) SA 372 (SCA) at [13].find that no “misdirection” has been indicated which would justify the granting. of leave to appeal. Material disputes of fact [16] Closely linked to the above is the approach a court should take where there is an absence of a real or genuine factual dispute.’ This approach deals with the principles régarding a so-called “robust approach”. In Essential Judicial Reasoning! the position is summarized as follows: “Ar avery early stage the courts recognized that respondents frequently attempted to create disputes of fact where there are none and that courts should not be deterred from deviding on the facts where this is done: The courts were enjoined to adopt a ‘robust approach fo stich disputes of fact”. [17]. In the present matter the facts are simply those:already found by the full court regarding the undue pension benefit negotiated and received by Mr Molefe. ‘There are no dispiites about the payment and receipt of his TRF lumpsum benefit and neither is there a dispute about what liad been paid to SARS. ‘The femainder of arguments relating to what had constituted the. pension benefits, the pension find contributions by both the employer and employee, the issue of set-off and even whether interest is payable or not, are all: legal arguments Which had to be determined within the rigid framework of facts. [18] Simply put: there'was no uncertainty as to whicli payments had been made and. to whom they have:been: made, it. was merely a determination as to. who should make the repayments and to whom those repayments had to be made. ‘This justified the determination or father, the quantification of that which the full court had-already ordered-on the facts “as they:stand” by. way of a “robust, common- sense approach toa dispute on inotion as otherwise the effective.finctioning of "ay retired Judge Southwood, Lexis Nexis, 2015 at 4.4jhe court éin'be hamstrong and circumvented by the most simple and blatant stratagem, To graiit leave to appeal would be to give effect to the attempted avoidance of determination of the quantification already referred to. Implementation of the full court’s order [19]. Mr Molefe. argues that this court was wrong, in finding that the matter for before it constituted an “implementation” of the full court’s order. The basi: this conterition, contained. in.the note for argument, is that the full ‘court had. already ordered’ Mr Molefe to pay R 10327 074,53. [20] While the: full court has indeed ‘made the above order, .Mr. Molefe’s argument is self-defeating: if thére had been no dispute about the above amount, then the question ‘raised in the judgment and during argument is simply why had Mr Molefe'then not paid that amount as long.ago as within 10 days after 25 January 2018? The six year long’dispute in the ensuing years was caused by Mr Molefe wanting ‘the’ issues of. payments to SARS, employer and employee contributions and set-off to be.taken into account before the full;court’s.order can be “implemented”, i.e. before he makes payinent of any cent. [21] The détermination of the “final” amount due can therefore not be viewed as anything but an attempt by the Pension Fund to “implement” the full court's order.. It is difficult to understand-how Mr Molefe can argue that there is a reasonable prospect of success that a court of appeal would order that this court's determination should be overturned. and that the position should revert to where ue of it was four years ago with Mr Molefe then still continuing to contest the i payment in-the amount mentioned:by the full court. Judicial deference ‘© Soffiantin] v Mould 1956 (4) SA150 (€) at 154 EH.to [22] MrMolefe argues that this court should have “deferred” to the actuaries or, more in particular, the actuary employed by him, as he argues that the Pension Fund’s actuarial calculation was not “independent”. [23]: In-support of this argument, Adv. Ngalwana $C’s note for argument refers to two cases, the Minister of Environmental Affe [24]: In Minister of Environmental Affairs; the portion of the judgment on which reliance is placed, is the following (at para $3): “Judicial deference is particularly appropriate where the subject-matter of an administrative action is very technical or of a kind in which & court has no particular proficiency”. The quotation trom the Constitutional Court judgment in Bato Star ‘on, which reliance was placed (at para 46) is! “The use of the word deference may give rise to a misiinderstanding as to the true function of a review court. This can be avoided if it is realised that the need for Courts ‘to: treat decision-makers with appropriate deference or or etiquette but form the fundamental respect flows not from judicial courtes principle of separation of powers itself”. [25] None of the principles mentionéd in these two judgments are applicable to the dispute in question. The maiter before this court was not a review application and the actuaries-were not decision-makérs. The actuaries performed no administrative actions. ‘The issite of separation of powers simply did'not arise. ‘The deference argument is simply’ so’ misplaced that it has no reasonable prospects of success.on appeal. ‘Ad: compelling reasons ‘Minister of Environmental Affairs and Tourisis and Others’ v:Phambili Fisheries (Pty) Ltd; ‘Minister of Environmental Affairs dnd Tourism v Bato Star Fishing (Pty) Ltd 2003 (6) SA.407 (SCA. 8 oto Star Fishing (Ply) Ltd v Minister of Environmental Affairs and Tourism arid Others 2004 (4) SA 290 (CC)ua [26]. Dealing with the second topic:raised under: this rubric first as it relates to the above issue of the actuarial calculations, in the note for argument it is alleged that this court ignored the actuarial calculations, made its own calculations and, in doing so, “travelled” beyond the pleadings. This; so the argument goes, makes for a compelling’ case why leave to appeal should be granted. [27] . To reiterate, the actuaries.had little differences of opinion, as it should be when the addition’and subtraction of figures should be the same if all the facts are the same, whoever: does the calculation. The areas of difference lay. in which figures relating to contractual- or pension-benefits should’ be excluded or not. These were legal questions beyond the field of expertise of the actuaries. [28]. [have again perused the judgment and every single figure quoted or relied on therein, in particular in paragraph 3 and the subparagraphs thereof, including the table reproduced: in’ paragraph 3:14, were extracted without. deviation, amendment or recalculation. from the.affidavits and I confronted Adv Nyalwana SC with this fact, without contradiction. The only. “calculations” which were made, were done after the determination of the disputed legal arguments and by way. of simple addition as explicitly. set out, in’ the judgment (see for example: paragraph 3.13) [29], Thete is no scope for any argument that this. court has “travelled beyond the pleadings”. “I therefore find nd’ “compelling reason” as contemplated. in section 17(1)(a)(ii) of the Act requiring the granting of leave to appeal. [30] “The other “compelling reason” as to: whiy leave should be granted, is that this court-took a “too narrow” view of the dispute which. was sought to be. Titediated-by’Mr Molefe, -It-was argued by’ him that the-issue was not only a mediated determination ‘of what he actually owed, but.that he soughi “to explore areas of compromise or.to generate options to’ resolve the. dispute”. V have2 already referred to the fact that this is not what. Mr Molefe’s supplementary answering affidavit contemplated and that the narrowing of possible areas of dispute had been achieved by the meeting of actuaries. [31] ‘The Pension. Fund questioned how the question of whether it should historically have. been directed to reconsider mediation.or not could be a “compelling reason” to grint leave to appeal when that. which would have “ostensibly been mediated, had now been finally determined by a court. ‘The dispute is therefore moot: T-agrée. [32] In the premises I find that no compelling reasons justifying the granting of leave to appeal had been established, as contemplated in Section 17(1)(a)(ii) of the Act and that there is no “constitutional” interpretation of Rule 41A required by the Supreme Court of Appeal. [33] Qn. behalf of SARS ‘jt was argued that'there-had been no “errors™-in the. judgment where references had been made to the Income Tax. Act 58 af 1962 or the Tax Administration Act 28 of 2011 -orto any of SARS’ statutory obligations: SARS was of the view: that leave to appeal should be refused. [34]. The pension Fund was of a similar view and also presented the court with useful heads of argument, refuting the issues raised by Mr Molefe. ‘The Pension Fund's application for-leave to cross appeal, relating to’ the issue of interest and the date of commencement thereof, was conditional upon the event of leave to appeal being grantéd to Mr Molefe..'As.such and, in view of the conclusions reached in respect of the lack of merits of the application for leave to:appeal, this will fali away. I liave nor been convinced that the other (lesser) points raised in the application for léave to appeal which have not been argued, otherwise merit the granting of leave to appeal.13 Order {35] In the premises and; having: considered all the arguments raised, the following order is made: The application for leave to’ appeal is refused. with costs, such costs to include the employment of two counsel. NDAVIS Judge of the High Court “Date of Hearing:-05 October 2022 Judgment delivered: 12 October 2022, APPEARANCES: For Applicant: Adv T Motau SC together wiih ff Adv R Tshetlo Attorney for Applicant: Norton Rose Fullbright South A rica Ine., : Johannesburg, c/o’ Macintosh Cross & Farquharson, Pretoria,Fot the 1*' Respondent: Attorneys for the-1* Respondent: For the 3“ Respondent; Attorneys for the 3“ Respondent: Adv V Ngalwana SC together with Adv § Nelani Molaba Attorneys, Pretoria Adv L Sigogo SC together with Adv. Kalipa Ledwaba Mazwai Attorneys, Pretoria