/SG IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) DATE: 02/12/2005 CASE NO: 15041/2002 UNREPORTABLE
In the matter between:
MARK SHAW PLAINTIFF
And
THE GOVERNMENT EMPLOYEES PENSION FUND DEFENDANT
JUDGMENT
PATEL, J
A. Introduction
[1] The plaintiff issued summons against the defendant for payment of
his pension gratuity which was payable to him upon his resignation
on 31 May 2000. The latter’s defence is that it paid the plaintiff’s
pension benefit to the South African Revenue Services (“SARS”)
and the South African Police Services (“SAPS”) in terms of section
21(3) of the Government Employees Pension Law (Proclamation
21 of 1996).
[2] The parties agreed to certain common cause facts between them
and that certain questions of law should be determined separately 2
from other issues and that further proceedings should be stayed
until such questions have been decided upon.
B. The agreed facts
[3] The plaintiff was employed by the SAPS from 1 April 1990 to 31
May 2000. During his employment, he was obliged to become a
member and contribute to the Government Service Pension Fund
which later became known as the Government Employees’ Pension
Fund (“the fund”). He contributed to the fund as prescribed and
the SAPS contributed to the fund on the plaintiff’s behalf as
required by section 17 of the Government Employees Pension
Law, 1996. At all material times, the plaintiff was a member of the
SAPS, and held the rank of Sergeant. At the time of the
termination of his employment he had been a member of the SAPS
for 10 years and 26 days.
[4] On or about December 1996, the plaintiff as a member of SAPS
arrested one David Moffat Maphumulo who was causing a
disturbance at Crocworld. During the arrest, Maphumulo bit the
plaintiff’s hand and refused to release it. The latter contends that
he was obliged to use force to remove Maphumulo’s bite and hit
him on the head injuring his eye. This, according to the plaintiff 3
was the least violent manner in which that he could extricate
himself from Maphumulo’s bite. However, the defendant has no
knowledge of the correctness of this assertion.
[5] Mr Maphumulo laid a criminal complaint against plaintiff and the
Director of Public Prosecutions declined to prosecute. Maphumulo
was charged with resisting arrest, assault on police officer and
other charges and was duly convicted. However, during or about
July 1997, Maphumulo, instituted civil action against the Minister
of Safety and Security, in the magistrate’s court for the District of
Umzinto, at Scottburgh, under case number 1005/97. The plaintiff
was not cited as a party to the civil proceedings and no relief was
sought against him. Subsequently the plaintiff was brought under
the impression by his Unit Commander that he was a party to the
proceedings and was instructed to sign the Undertaking sometime
in July 1997. This was ostensibly done in accordance with
Treasury Instructions W3.5.2.
[6] The civil matter was set down for trial and the plaintiff was called
to court by the representative for the Minister of Safety and
Security. On the day of trial the matter was settled, without
consultation with or the knowledge of the plaintiff. Although he 4
was at court, he was simply advised that he could leave sine, as the
matter was over. At all times the plaintiff denied his guilt to the
criminal complaint or assume any liability in the civil action.
Subsequently, SAPS, without the plaintiff’s knowledge or consent,
paid as settled amount including the taxed costs to Maphumulo’s
his attorneys or to Maphumulo himself.
[7] The plaintiff then resigned from his services with SAPS and his
last day of service was 31 May 2000. When he was informed that
his pension benefits were not to be paid to him, as a result of the
settlement in the civil action, and more specifically based on the
undertaking he signed in July 1997. The plaintiff was also advised
by his Unit Commander to approach the State Attorneys in order to
make an offer of payment of affordable instalments, which would
then cause the release of his pension benefits to him. He was
unable to litigate because of his financial circumstances and merely
submitted such an offer through the Office of the State Attorney
(KwaZulu-Natal) in September 2000 on the understanding that his
pension benefits would be paid to him if the offer was accepted.
The offer was not accepted and the pension benefits were not paid
out to the plaintiff.
5
[8] The National Treasury: Pensions Administration (formerly the
Department of Finance: Chief Directorate Pensions
Administration) is responsible for the administration of the
Government Employees Pension Fund (the defendant). The
defendant is a so-called “defined benefit fund”, that is where
benefits are based on the members’ final salary and years of
pensionable service (as defined in the Proclamation and the Rules),
multiplied by a prescribed factor. The defendant did not maintain
updated records of members’ salary and other personal information
and simply relied on participating employers to inform the
defendant thereof on a prescribed form upon termination of a
member’s service.
[9] After the plaintiff’s resignation from SAPS, the defendant received
certain prescribed documents from SAPS on 11 October 2000.
These were Z102 document completed by SAPS on
6 October 2000, and indicating a debt to the State or the employer
amounting to R110 544.94; Z864 document completed by the
plaintiff and copy of plaintiff’s identity document. The defendant
also requested proof from the SAPS regarding the debt referred to
in item 22 of the Z102 form and received from the SAPS, on
23 March 2001, a copy of first page of a letter from the Area 6
Commissioner Loss Management to the Directorate Support
Services indicating the background of the claim and a report of
debt to debtor section indicating the calculation of the debt.
[10] The defendant considered the documentation received to be
sufficient proof of the debt as indicated in item 22 on the Z102
document. It did not undertake any enquiries into the merits and
validity of the debt, since it is not concerned with the internal
procedures of participating employers. The plaintiff’s pension
benefit, being a gratuity, was calculated in accordance with
rule 14.4.1 of the rules of the defendant, amounting to R55 390.28.
The rules of the Pension Fund stipulate that the pension benefits of
such a member can only be withheld in the circumstances provided
for in section 21 of Proclamation 21 of 1996.
[11] The defendant avers that it was entitled to pay the pension benefits
of the plaintiff to the SAPS in terms of the provisions of section
21(3)(a) or section 21(3)(c) of the Proclamation. Consequently, it
elected to pay the plaintiff’s resignation benefits in the amount of
R2 505.07 to SARS and the balance to the SAPS in terms of
section 21(3)(a) or (c) of the Proclamation.
7
[12] This Court is asked to determine following questions of law:
(a) Whether the documents received by the defendant from the
South African Police Service, as referred to in the statement
of agreed facts, were sufficient in themselves and from the
face of them to establish the existence of a debt owing by the
plaintiff to the South African Police Services as envisaged in
section 21(3)(a) or (c) of Proclamation 21 of 1996;
(b) Whether the defendant was entitled to rely on the
documentation as proof of the debt allegedly owed by the
plaintiff to the South African Police Services or whether
there was an obligation on the defendant to make its own
enquiries into the existence of such a debt and, if so, the
extent of the investigations required to be undertaken by the
defendant;
(c) Whether payment made by the defendant to the South
African Police Services constituted a valid payment of the
gratuity owed by the defendant to the plaintiff in the event of
it being established that as matter of fact there was no debt 8
as envisaged by section 21(3) owed by the plaintiff to the
South African Police Services.
(d) On whom does the onus rest to prove the existence or
otherwise of a valid debt for the purpose of section 21(3) and
do the findings on the first two questions affect the incidence
of the onus ab initio or at any stage.
(e) Whether the plaintiff, alternatively the defendant, is under
any obligation to join the South African Police Services to
these proceedings.
C. Section 21(3) of the Proclamation.
[13] Section 21 of Proclamation 21 of 1996 provides:
“Prohibition on cession and attachment of benefits
(1) No benefit or right in respect of a benefit payable
under this Act shall be capable of being assigned or
transferred or otherwise ceded or of being pledged or
hypothecated or, save as is provided in section 26 or
40 of the Maintenance Act, 1998, and section 7(8) of
the Divorce Act, 1979 (Act 70 of 1979), be liable to 9
be attached or subjected to any form of execution
under a judgment or order of a court of law.
(2) If any member, pensioner or beneficiary attempts to
assign or transfer or otherwise cede or to pledge or
hypothecate any benefit to which he or she is entitled
under this Law or any right in respect of such benefit,
payment of such benefit to such member, pensioner or
beneficiary may be withheld, suspended or
discontinued if the Board so directs: Provided that the
Board may direct that such benefit or part thereof shall
be paid to one or more of the dependants of such
member or pensioner or to a trustee for such member
or pensioner or his or her dependants during such
period as the Board may determine.
(3) Notwithstanding the provisions of subsection (1) or of
any other law –
(a) any amount which is payable to the employer or
the Fund by any member in the employment of
such employer on the date of his or her 10
retirement or discharge, or which the employer
is liable to pay in respect of such member;
(b) any amount which has been paid to any
member, pensioner or beneficiary in accordance
with the provisions of this Law and to which
such member, pensioner or beneficiary was not
entitled;
(c) the amount of any loss which has been
sustained by the employer through theft, fraud,
negligence or any misconduct on the part of any
member, pensioner or beneficiary which has
been admitted by such member or pensioner in
writing or has been proved in a court of law;
(d) any amount, plus interest at the rate determined
by the Board after consultation with the actuary,
due to the Fund in respect of an amount for
which the Fund becomes liable under a
guarantee furnished in respect of a member for 11
a loan granted by some other person to that
member in terms of the rules,
may be deducted from the benefit payable to such
member, pensioner or beneficiary under this Law in a
lump sum or in such instalments as the Board may
determine.
(4) Where a member dies before the last day of a period
in respect of which any salary or allowance was paid
to him or her prior to his or her death, a pro rata part
of the amount so paid may be recovered in respect of
the unexpired portion of that period by deducting it in
a lump sum, or in such instalments as the Board may
determine, from the benefit payable to the estate or to
be a beneficiary of the deceased member, as provided
for in the rules.”
D. First Question 12
[14] Applied to the facts of the case, section 21(3) of Proclamation 21
of 1996 requires that the amount deducted by the defendant from
the plaintiff’s pension benefit must either have been payable by the
plaintiff to the SAPS on the date of his registration, or have been a
loss which has been sustained by SAPS through the plaintiff’s
negligence or misconduct, which has been admitted by the plaintiff
in writing or has been proved in a court of law. The defendant’s
stance is that it considered the documentation received to be
sufficient proof of the debt indicated in item 22 of the Z102. This
Z102 document was the first document received by the defendant.
It was completed by the SAPS on 6 October 2000 and a Z864
document containing the plaintiff’s personal and banking details.
The Z102 document is a multi-purpose form completed by the
participating employer on the occurrence of a particular event that
has an influence on the pension interests of its employees.
The must be certified by the relevant participating employer to
contain information that is correct. This Z102 document reflected
a debt to the State or the employer amounting to R110 544.94 as
resulting from a civil claim. Mr Basson for the defendant
submitted that the information contained in the Z102 form prima
facie indicates the existence of a debt owed by the plaintiff to 13
SAPS as envisaged by section 21(3)(a) or (c) of Proclamation 21
of 1996.
[15] It appears after requesting proof from SAPS regarding the debt
mentioned in the Z102 form, the defendant received the first page
of a letter from the Area Commissioner Loss Management to the
Directorate Support Services alluding to the background of the
claim, and a report of debt indicating the calculation of the debt.
The background to the claim is set out as follows:
“On 96-12-21 the member was on duty and had attended to a
complaint of disturbance at Crocworld, on the South Coast.
Member arrested the plaintiff in this matter and detained him
at Umkomaas. At the Police Station, it was alleged that the
plaintiff was assaulted with a fingerprint roller whereby he
lost an eye.
A claim of R100 000.00 was received.
An offer of R67 000.00 was made which was accepted and
paid. On 98-12-22 that State Attorney advised that the 14
member had overstepped his bounds and loses state
protection.
Member was served with a Recovery of Debt Notice which
he did not respond to. Because of time constraints the State
Attorney was requested to serve summons on the member.
Member subsequently took his discharge from the service.
He approached the State Attorney where he accepted
liability and offered to pay R150.00 per month and requested
that his pension be paid out to him. (Attached
correspondence re repayment of debt).
The legal costs amounted to R39 960.35.”
[16] The information contained is an iteration that the plaintiff owed an
amount of money to his former employer arising from a civil claim
instituted against the former employer for which the plaintiff as
employee was responsible. The information contained in the letter
merely confirmed the note in item 22 of the Z102 that the claim
arose from civil action.
15
[17] The documents received by the defendant prima facie indicates that
an amount was payable by the plaintiff to SAPS on the date of his
resignation, as contemplated by section 21(3)(a). It prima facie
also indicates that a loss was sustained by SAPS through the
plaintiff’s negligence or misconduct and he admitted liability to the
State Attorney as contemplated in section 21(3)(c).
[18] Ms Annandale for the plaintiff argued that mere reliance on the
documentation by the defendant does not simply indicate that there
was a debt. She submitted that the plaintiff has no knowledge of
the documents which he cannot dispute before the payment is
withheld or paid over to his employer. This happens completely
without any indication to the plaintiff. There must in actual fact be
a debt. The plaintiff must be informed of such a debt because
otherwise he, as the employee, would not know whether any
document passed between his employer and the fund. It is
common cause the fund does not keep records and substantially
relies on the Z102.
[19] I am of the view that it would certainly be extraordinary if the
proclamation simply intended to authorise a debt of which the
plaintiff had no knowledge or only had deemed knowledge. The 16
validity of a debt is a jurisdiction fact upon which the withholding
or paying over of the benefits depends. It is a necessary corollary
that the employee should have been informed before the monies
were paid over to SARS and SAPS. [See: Singh v Commissioner,
South African Revenue Service 2003 4 SA 520 (SCA) para [18] at
527I-528B.] Further, fairness requires notice of intended paying
over of the paying over of the plaintiff’s pension benefits and an
opportunity to be heard before such payment was made. [See: De
Beer NO v North-Central Local Council and South Central Local
Council and Others (Umhlatuzana Civic Association intervening).]
In the final analysis the documents received by the defendant from
SAPS are not ex facie sufficient in themselves to establish the
existence of a debt owed by the plaintiff to SAPS as contemplated
in section 21(3)(a) or (c) of the Proclamation. Therefore, there is
no valid debt.
E. Second Question
[20] Pertaining to the second question, the defendant did not undertake
any further investigation regarding the validity of the debt. What is
pertinent is the relationship between the employee, the employer
and the pension fund. These three parties are bound in a particular
way and each of them has rights and obligations towards the other 17
according to their relationships. The pension fund forms an
integral part of the employer and employee relationship. [Lorentz v
Tek Corporation Provident Fund and Others 1998 1 SA 192 (W)
229H; Resa Pension Fund v Pension Fund Adjudicator and Others
2000 3 SA 313 (C) 322J] This is also evident from the fact that the
rules of the defendant are the result of a negotiations and collective
agreement between the employer and employee organisations in
the public sector. (See: section 29 of the Proclamation.) Despite
their inter-connection the three parties are also separate and
independent from each other. A claim arising from the relationship
between the member and the pension fund does not necessarily be
adjudicated between the member and the employer. Similarly a
claim arising between the member and the employer is not a matter
to be settled between the member and the pension fund.
[Medrcedes Benz v Mdyogolo 1997 2 SA 748 (E) 752I-753C]
[21] The plaintiff was an employee of SAPS and also a member of the
defendant. The plaintiff had and has rights and obligations in
accordance with his terms and conditions of service, as well as a
member of the pension fund. SAPS are also a participating
employer of the defendant. The SAPS has rights and obligations
towards its employees as well as the pension fund. Thus, the 18
defendant has a relationship with the plaintiff as one of its
members, but also with the SAPS as on of the participating
employers. The pension fund has rights and obligations towards
both its members and the participating employer.
[21] Membership of the defendant is compulsory for all employees in
the public sector. (Section 4 of the Proclamation) The defendant is
a defined benefit pension fund that is where benefits are based on
the members’ final salary and years of pensionable service,
multiplied by a prescribed factor. It follows that in each case
where the service of a public sector employee is terminated, the
defendant must have the final salary and years of service of the
relevant member available in order to perform a calculation of the
relevant pension benefit. However, the defendant, being an
independent entity, separate from the member and the employer,
does not keep updated records of members’ salary and other
personal information and relies on the participating employer to
inform the defendant thereof on a prescribed form upon
termination of a member’s service. The form Z102 document,
which is prescribed in accordance with section 7(3) and 26(1) of
the Proclamation. Ms Annandale contended on behalf of the
plaintiff that the defendant should perform its own enquiry into the 19 existence of a debt which arose between the employer and employee. However, for the defendant Mr Basson submitted that this would simply result in a duplication of the processes which is finalised between the employer and employee. It would also lead to an unsatisfactory situation where the employer and the fund would in certain circumstances reach different conclusions regarding the same employee. If the contention advanced on behalf of the plaintiff’s is correct then the defendant is required to investigate the merits and validity of the debt and in all probability the defendant would not be able to rely on any of the information received from its participating employers. At most, what would be required from the defendant when it makes a deduction in terms of section 21(3) is to call for information from the employer, as the defendant did, and to review the information to establish whether it complies with the requirements of subsection (3). I am not persuaded by Mr Basson’s argument that the relationship between the three parties does not allow the pension fund to undertake any investigation into the merits and validity of a debt arising from the relationship between an employer and employee. The defendant simply cannot rely on the information that is provided by the plaintiff’s employer. It cannot just accept the ipse dixit of the 20
employer without verifying the correctness of the information that
is conveyed to the defendant by the employer.
[22] In this case, the question is what further information would be
elicited by such an investigation. It is apparent that the information
available to the defendant when it made the payment of the pension
benefits indicated that the plaintiff was indebted to SAPS in an
amount in excess of his resignation benefit because of the
settlement of the claim instituted by Mr Maphumalo against SAPS
for the loss of his eye during an arrest effected by the plaintiff. The
latter was informed in a letter of 21 September 2000 from the State
Attorney that the claim including the legal costs was settled and
paid. In paragraph (d) of the letter, the plaintiff was informed that:
“The finding was that you had forfeited State cover in terms
of the Treasury Instructions and that you had to repay the
amount of the loss to the State.”
[23] Furthermore, Chapter W of the Treasury Instructions, issued in
terms of the Exchequer Act of 1975, (the instructions remain in
force until repealed in terms of section 76 of the Public Finance
Management Act 1 of 1999 (“PFMA”). The PFMA came into 21
effect on 1 April 2000. And on the following day the plaintiff
registered.) Broadly, the Instructions deal with losses or damages:
dealing with claims against and by the state and against person in
its service.
[24] The Treasury Instructions W.3.2 provides that the State accepts
liability for all claims arising from the acts or omissions of all
persons instituted against the State or against the persons, unless
the Accounting Officer, after consultation with the State Attorney,
is of the opinion that the person acted in a certain prescribed
manner in which case the amount which the State was compelled to
disburse, and the legal costs, shall be recovered from the person,
whether in terms of section 34 or any other provision in law or
agreement, as the case may be, or by instituting legal process.
Further, the Treasury Instruction W.3.5.8 provides that when a
claim has been paid, it must be considered whether, in terms of the
instructions, the person can be held liable for the amount paid to
the claimant as well as the legal costs. If so, such amounts must be
recovered from the said person in terms of section 34 or any other
corresponding provision in a law or agreement, as the case may be,
or by legal process. If the Accounting Officer and the State
Attorney agree that these amounts are not recoverable, the matter is 22
considered to have been finalised. But, if the Accounting Officer
and the state attorney cannot reach agreement, then the Accounting
Officer shall submit the case to the Treasury.
[25] The State Attorney’s letter of 21 September 2000 indicates that a
decision was taken that the amount paid by SAPS to the claimant,
including the legal costs, must be recovered from the plaintiff.
Mr Basson submitted on behalf of the defendant that the details
regarding the procedure adopted to liquidate SAPS claim against
the plaintiff, did not detract from the fact that the defendant was
informed of the existence of the claim, and the fact that it arose
from a civil claim. The particulars that became available for
purposes of this matter confirms the cause of action on which the
SAPS relied for claiming the deduction and the amount of the
claim. Furthermore, the plaintiff’s explanation as to the manner in
which the fight between him and Maphumalo started and ended,
and how it was settled by the State Attorney does not take the
matter any further and does not detract from the fact that the matter
was settled and that the plaintiff was required to repay the amount
to SAPS.
23
[26] A further consideration is whether the defendant may deduct in
terms of section 21(3) upon receiving a claim by the employer
contained in Z102, or whether the defendant must perform an
investigation into the validity of such a claim before it can make a
deduction, raises the question whether the phrase “may deduct”
refers to the exercise of an authority or a discretion.
[27] It is apparent that purpose and object of section 21(1) is to protect
pensioners against being deprived of the source of their pensions.
The protection afforded is, however, subject to a number of
exceptions, one of which is the exception provided for in section
21(3). The latter subsection affords an employer a right of access
to pension fund benefits which other creditors do not have. It is the
employer that causes so much of the pension benefits to be
attached, as is owed to it on the date of termination of service of
the employee. [See: ABSA Bank Ltd v Barmeister and Others 2004
5 SA 595 (SCA) paras [12] – [13] at 600F-601D/E.]
[28] The word “may” is usually permissive and in the context of section
21(1). Section 21(3) describes the circumstances under which an
employer may cause a deduction to be made from a member’s
pension benefits, but is by no means exhaustive of the employer’s 24
remedies. It may institute legal action through the normal
procedures. The phrase “may deduct” is therefore used in its
ordinary sense that the defendant is empowered, in certain defined
circumstances, to make a deduction from a member’s pension
benefits. [See: De Wet and Others v Western Bank Ltd 1977 4 SA
770 (T) 777G; Stocks Construction (OFS) (Pty) Ltd v Metter-
Pingon (Pty) Ltd 1978 4 SA 35(T) 39A-C]
[29] It is clear that the authority provided for the pension fund to make a
deduction from a member’s pension benefits on the basis of a claim
instituted by an employer, the details of which must be certified by
an Assistant-Director employed by the respective employer on the
Z102 to be correct, but that does not have the effect that the
defendant is not required to perform its own investigations into the
merits of the matter, before a deduction is made.
[30] Thus, pertaining to the second question, on my analysis the
defendant has a duty to make enquiry into the merits and validity
of the debt, but mere reliance on the documentation received from
SAPS regarding the existence of the debt certainly does not
constitute prima facie proof of a debt allegedly owed. The extent
of the inquiry will depend upon the circumstances of each case. 25
F. Third Question
[31] The parties agreed that if the Court determines that there is no valid
debt as contemplated by the proclamation, concomitantly then
there could have been no valid payment, accordingly then it is not
necessary to deal with the third question. Because of the
conclusion reached pertaining to first and second questions it is not
necessary to consider the third question.
G. Fourth Question
[32] The fourth question is, on whom does the onus rest to prove that
there is a valid debt and whether the finding on the first two
questions affect the incidence of the onus.
[33] In the Le Roux v Child Welfare Provident Fund and Another (2)
[2002] 1 BPLR 2973 (PFA), Mr John Murphy, the Pension Fund
Adjudicator, indicated, para 8, at 2976 C/D, regarding
section 37 Dof the Pensions Fund Act 24 of 1956, that:
“Section 37D of the Act creates a defence for the fund not to
pay a pension benefit to a member. Therefore, the fund 26
bears the onus of establishing its defence on a balance of
probabilities.”
[34] Counsel on behalf of the defendant conceded that the defendant
bears the onus and has the duty to begin. That concludes the fourth
question.
H. Fifth Question
[35] The last question pertains to the joinder of SAPS to the
proceedings. Does SAPS have a direct and substantial interest in
the proceeding between the plaintiff and the defendant? Ms
Annandale rightly submitted that the plaintiff does not have a cause
of action against SAPS and his contract as a member of the pension
fund is with the defendant. Nor is the plaintiff seeking any relief
against SAPS. From the defendant’s perspective it may be
expedient to join SAPS, however, SAPS does not have a “direct
and substantial interest” in the matter. Therefore, there is no
necessity to join SAPS a party to the proceedings.
I. Conclusion
[36] In summary, the answers to the questions of law are:
27
[36.1] The documents received by the defendant from SAPS are not
sufficient in themselves to establish the existence of a debt
owed by the plaintiff to SAPS.
[36.2] It is incumbent upon the defendant to enquire into the merits
and validity of the debt and mere reliance on the
documentation received from SAPS does not constitute
prima facie proof of the debt allegedly owed by the plaintiff.
[36.3] The defendant bears the onus to establish the existence of a
valid debt.
[36.4] It is not necessary to join SAPS as a party since it does not
have a direct and substantial interest in the proceedings.
[37] Finally, the costs in respect of the issues referred to this Court in
terms of rule 33(4) shall be costs in the cause and the remaining
issues are postponed sine die.
E M PATEL JUDGE OF THE HIGH COURT
15041/2002
28
HEARD ON: 02/09/2005 FOR THE APPLICANT: ADV A ANNANDALE INSTRUCTED BY: MESSRS OELOFSE HEFER & WESSELS INC, PRETORIA FOR THE DEFENDANT: ADV J L BASSON INSTRUCTED BY: MESSRS STATE ATTORNEY, PRETORIA DATE OF JUDGMENT: 02/12/2005