Case Summary: SIU and Another v Lebelo and Others

SIU and Another v Lebelo and Others

URL

https://www.justice.gov.za/tribunal/jdm/ST-Judgment-GP-06-2022.pdf

Citations

(GP06/2022)

Date of judgment

8 August 2022

Keyword(s):1

Rule nisi, pension benefits, immovable properties, preservation application, curator bonis, discretion, purpose, pension benefits, misconduct, unlawful, profits, civil proceedings

Case type2

Application

Result

Rule nisi granted and the respondents ordered to pay curator bonis’s costs

Flynote3

Civil procedure – preservation order and appointment of curator bonis – the Tribunal ought to appoint a curator bonis if such appointment would give effect to the purpose of the preservation order

Legislation and International Instruments4

• Rule 24 of the Tribunal Rules

• Section 37D(1)(b)(ii) of the Pension Funds Act

Cases cited as authority5

• Commissioner for the South African Revenue Services v Van der Merwe 2016 (1) SA 599 (SCA)

• Mngomezulu and Another v Van Den Heever NO and Another [2007] 2 All SA 357 (SCA)

• Fraser v Absa Bank Ltd (National Director of Public Prosecutions as Amicus Curiae) 2007 (3) SA 484 (CC)

• Highveld Steel & Vanadium Corporation Ltd v Oosthuizen 2009 (4) SA 1 (SCA)

Facts6

The Special Investigating Unit (SIU) and Transnet SOC Ltd (Transnet), as joint applicants, sought to preserve certain immovable properties owned by the first, second, third, fifth and sixth respondents, to restrain the Transnet Retirement Fund (TRF) from paying out pension benefits to the first respondent, and to appoint a curator bonis in terms of Tribunal Rule 24, at the respondents’ cost. The SIU was investigating and intended to institute civil proceedings against the first respondent, Mr Lebelo, and the fifth respondent, Mr Mashamba, for the disgorgement of secret profits earned unlawfully from Transnet suppliers and service providers, as well as bribes received. Pending the civil proceedings, the applicants sought an order prohibiting the respondents from encumbering their properties.

Summary7

The Tribunal was asked to determine whether the applicants had made out a case for the appointment of a curator bonis, to determine whether the respondents would be liable for the costs of such appointment and whether Mr Lebelo’s pension benefits should be preserved.

Decision/ Judgment8

The Tribunal ordered that the first, second, third, fifth and sixth respondents’ properties be preserved and that a curator bonis be appointed to take control of these properties. The respondents were ordered to pay the costs of such appointment. The TRF was also interdicted from paying out any pension benefits due to Mr Lebelo until the final determination of civil proceedings instituted by the applicants against the respondents.

Basis of the decision9

The Tribunal noted that when considering the appointment of a curator bonis, it was required to consider the circumstances of each case. When the Tribunal considered the purpose for which the preservation order was sought, it found that the appointment of a curator bonis would give effect to that purpose.

The Tribunal found that it would be appropriate for the respondents to pay for the costs of the curator’s appointment, as the respondents were owners of the properties and had a duty to continue paying towards the property maintenance costs.

The Tribunal also found that TRF was entitled to exercise its discretion to withhold Mr Lebelo’s pension benefits pending an investigation into his suspected misconduct, and this decision was supported by case law.

Reported by

Date

African Legal Information Institute (AfricanLII)

10 August 2022