Telkom has frozen an employee’s pension – why a judge allowed it

Telkom has succeeded in “freezing” a pension payout to a former employee it is suing for over R200-million.

In a civil trial, Telkom alleges Andrew Johannes Jacobs sold information to its competitors. He resigned in October 2012, ahead of an internal disciplinary hearing.

Jacobs applied to the high court in Pretoria to have his pension released. He said his family was suffering financially due to an “inordinate delay” in proceedings against him.

Read the judgment here

Telkom launched a counter application asking for an interim interdict, preventing the payout of the pension money until the civil case is concluded.

Judge Ronel Tolmay, in her ruling last week, said on the facts before the court, it was in the interests of justice to grant the interim interdict, in spite of the inordinate delay.

“It is clear that if the monies are paid to Jacobs he will, on his own version, try to meet his existing financial obligations which would, in turn, leave Telkom with no recourse. Any judgment against him would have no value. The disputed evidence is serious and potentially criminal. As a result I am of the view that it is in the interests of justice to grant the interdict.”

The judge said the civil trial would probably be set down for hearing during the course of this year, or next year, and the parties could apply for an early date from the deputy judge president.

The judge said the law pertaining to the withholding of pension benefits and the rules of the relevant pension fund provided that a benefit may be retained where legal proceedings have been instituted or a criminal charge had been laid and, on the face of it, the employer had a reasonable chance of success in either forum.

Tolmay said evidence before her was that Telkom had laid a criminal charge in 2013 under the Prevention of Organised Crime Act. Jacobs was not prosecuted but in 2021 his attorney had been informed by the National Prosecuting Authority (NPA) that a criminal matter was proceeding.

Delay

In 2014, Telkom had issued a summons against him.

Telkom produced e-mails indicating that the NPA had asked that it hold back on the civil proceedings until the outcome of the criminal matter.

“Telkom says it had no control over the delay at the NPA… The NPA had assured that the matter was being attended to but nothing was done,” the judge said.

She said Telkom had put up documentary evidence, including a forensic report, which formed the basis of the allegations against Jacobs. He had chosen not to respond to these.

“He relies on his right to remain silent and not incriminate himself in criminal proceedings which may follow. The result is that, although he had a right to remain silent, the court is largely left in the dark as far as his version is concerned. The unintended consequences is that this court only has the evidence provided by Telkom to determine whether the requirement for an interdict has been met.”

She said there was no question that there had been an inordinate delay, brought about by various factors to which both parties had contributed.

“If it were not for the exceptional circumstances of the case, the delay would have been unreasonable. If the [civil] matter could not be finalised in the foreseeable future, the court may have come to a different conclusion,” the judge ruled.  — (c) 2022 GroundUp