Case Summary: Ex Parte: Special Investigating Unit; In Re: Special Investigating Unit v Moyo and Another (GP/09/2022) [2023] ZAST 3 (2 February 2023)

Ex Parte: Special Investigating Unit; In Re: Special Investigating Unit v Moyo and Another

URL

https://lawlibrary.org.za/akn/za/judgment/zast/2023/3/eng@2023-02-02

Citations

GP/09/2022

Date of judgment

2 February 2023

Keyword(s):1

Special Tribunal, unauthorised gratification, employee, preserve, benefits, pension fund, ex parte application, recovery, reconsideration, unauthorised gratification, restrain, preserve, interdict, interim order, irreparable harm, balance of convenience

Case type2

Application

Result

Dismissed with costs

Flynote3

Civil procedure – reconsideration of interim order granted ex parte – party seeking reconsideration must cast serious doubt upon the other party’s factual averments pertaining to a prima facie right

Legislation and International Instruments4

• Tribunal Rule 12(9)

• High Court Rule 6(12)(c)

Cases cited as authority5

• Simon NO v Air Operations of Europe AB and Others 1999 (1) SA 217 SCA

Facts6

The first respondent, Duduzile Babalwa Moyo (Moyo), was a former employee of Eskom, and had been accused of receiving an unauthorised gratification. The applicant, the Special Investigating Unit (SIU), intended to claim the amount by way of action procedure (Main Proceedings). The SIU brought an ex parte application for the preservation of Moyo’s pension fund benefits, pending finalisation of the Main Proceedings. An order was granted to restrain and interdict Moyo from withdrawing her pension benefit (Interim Order). Moyo sought to have the Interim Order reconsidered.

Summary7

The Special Tribunal was asked to reconsider the Interim Order. Moyo raised several points for reconsideration, including the failure of the SIU to (a) fulfil its duty in good faith, (b) explain the basis for claiming that Moyo received unauthorised gratification, (c) show that it would suffer any prejudice if the relief had not been granted, and (d) make out a case for interim relief.

Decision/ Judgment8

The application for reconsideration of the Interim Order was dismissed with costs, and the Interim Order was confirmed.

Basis of the decision9

The Special Tribunal found that the SIU had satisfied the 4 requisites for interim relief sought. There was well-grounded apprehension of irreparable harm to the SIU if the interim order was set aside, as Moyo was unemployed and would logically want to use her pension fund benefits – thus rendering any judgment obtained by the SIU later ineffective. The balance of convenience also favoured the SIU, as Moyo was employable and could find employment in the interim. The Special Tribunal also found that no other satisfactory remedy was available to the SIU.

The Special Tribunal found the evidence presented on behalf of Moyo to be vague, lacking, improbable and false, and therefore that the evidence failed to cast serious doubt upon the SIU’s case.

Reported by

Date

African Legal Information Institute (AfricanLII)

4 February 2023