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[2012] ZAGPJHC 4
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Mine Employees Pension Fund v De La Rey NO (2011/36366, 2011/32949) [2012] ZAGPJHC 4 (7 February 2012)
REPORTABLE
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NOS 2011/36366 & 2011/32949
DATE:07/02/2012
In the
matter between
MINE EMPLOYEES PENSION FUND
….................................................
APPLICANT
and
EM DE
LA REY
NO
......................................................................................
RESPONDENT
Pension
– Pension fund – Complaints in terms of s 30A of
Pension
Funds Act 24 of 1956
– Determination of by pension fund
adjudicator – Appeal in terms
s 30P
of
Pension Funds Act 24 of
1956
- Application in terms of
rule 30
for setting aside as irregular
affidavit filed by adjudicator in appeal proceedings without having
entered appearance to oppose
– Adjudicator entitled to file
affidavit – Prejudice – absence of - application
dismissed.
J U D G M E N T
VAN OOSTEN J:
[1] Two applications in terms of rule 30(1) of the Uniform Rules of
Court serve before me. The applications were heard together
as they
involve virtually the same parties and are based on the same
substrata. Having heard argument I dismissed both applications
and I
indicated that I would furnish reasons for the orders, if requested
to do so. Such a request has now been made and what follows
are my
reasons for dismissing the applications.
[2] At the outset it is necessary to set out the background to the
applications. The respondent in her capacity as the acting Pension
Funds Adjudicator (appointed as such in terms of s 30C(1)(c) of the
Pension Funds Act 24 of 1956) (the FPA) investigated, determined
and
upheld two separate complaints, in terms of s 30A(3) of the Act. The
applicant, as it was entitled to do, concerning each complaint
then
launched an application to this Court in terms of s 30P of the Act
(which the SCA held is in the nature of an appeal in the
wide sense:
See Meyer v Iscor Pension Fund
2003 (2) SA 715
(SCA)), for the
setting aside of the determinations and for the dismissal of the
complaints. The complainants are cited as the
first respondents and
the present respondent (the adjudicator) as the second respondent in
the applications (the main applications).
No relief is sought against
the adjudicator save for an order for costs against her in the event
of her opposing the application.
The main applications were duly
served on the respondents but none entered an appearance to oppose.
[3] The adjudicator however, did file an affidavit in the main
applications which was duly served on the applicant’s
attorneys.
I shall revert to the contents of the affidavit. The
affidavit is the subject matter of the applications now before me. In
the
applications the applicant seeks the setting aside of the
affidavit as an irregular step and a declarator that the affidavit
shall
not form part of the record in the main applications. In
addition an order for costs is sought against the adjudicator.
[4] In determining the applications two issues need to be considered:
firstly, whether the affidavit constitutes an irregular step
within
the meaning of rule 30 and, secondly, if so, whether the filing
thereof caused any prejudice to the applicant (Cf
Erasmus
Superior Court Practice B1-189). I shall deal with each in turn.
[5] The function of the adjudicator was to dispose of the complaints
lodged in terms of the PFA. It is true, as was held by Nel
J in
Orion
Money Purchase Pension Fund (SA) v Pension Funds Adjudicator and
Others
[2002] 9
BPLR 3830 (C), that having made a
determination, the adjudicator had no further function to fulfil. But
that, in my view, does not
disentitle the adjudicator to file an
affidavit in the appeal proceedings in order to provide the Court
hearing the appeal, with
information which may be of assistance in
adjudicating the matter. As much was recognised by Fourie J in
Old
Mutual Life Assurance Co (South Africa) Ltd v Pension Funds
Adjudicator and Others
2007 (3) SA 458
(C). The learned Judge
however associated himself with the earlier “frowning upon”
this procedure by Nel J in the
Orion Money Purchase Pension Fund
case
but emphasised that “there may be rare cases”
where the adjudicator may be required to file an affidavit in appeal
proceedings.
The remarks made by the learned Judge were expressed
obiter
, but to the extent that they were meant to convey that
allowance of an affidavit by the adjudicator in appeal proceedings
should
be confined to rare cases, I am unable to endorse that view.
[6] The adjudicator in adjudicating the complaints in terms of the
PFA performed a judicial function (
Old Mutual
para [12]). I
align myself with the view of Fourie J that the provisions of s 30 of
the PFA do not afford to the adjudicator the
right to become a party
to the appeal proceedings. It is for this reason that the
adjudicator’s application for leave to
oppose the main
application in that matter was refused. The present situation is
clearly distinguishable: the adjudicator was cited
as the second
respondent in the main application and therefore became a party to
those proceedings. The real question therefore
is whether the
adjudicator was entitled to file an affidavit without having formally
entered the fray by filing a notice of intention
to oppose.
[7] In
Pretoria Portland Cement Co Ltd and Another v Competition
Commission and Others
2003 (2) SA 385
(SCA) the Supreme Court of
Appeal extensively dealt with the good policy reasons why Judges
should not be joined in appeal proceedings.
By parity of reasoning
the adjudicator ought not to be joined as a party in an appeal
against his or her determination. I accordingly
cannot fault the
adjudicator for not having filed a notice of intention to oppose. The
adjudicator and her attorneys correctly
and properly adopted the
approach of abiding the decision of the Court and avoiding becoming
embroiled in the litigation. Although
the adjudicator was not
required to file an affidavit she, as I have already mentioned,
proceeded to do so. In the affidavit the
adjudicator states that she
does not wish to oppose the appeal but that the affidavit is filed
merely for the purpose of bringing
certain aspects to the Court’s
attention in order to be of assistance to the Court in the
adjudication of the appeal. I interpose
to refer to the criticism
that was levelled against the contents of the affidavit which was to
the effect that it extended well
beyond an objective approach
resulting in the adjudicator defending her decision. I do not think
that this argument is of any relevance
at this stage: should there be
any merit in the contention I have no doubt that this aspect will be
subjected to judicial scrutiny
by the Court hearing the appeal.
[8] An affidavit by the adjudicator, in my view, can be of
considerable assistance to the Court adjudicating the appeal.
Circumstances
may be such that an affidavit by the adjudicator will
indeed be required. It must be remembered that the adjudicator may
well be
confronted with new facts or arguments in the appeal which
were not raised at the hearing before him or her. An analogy to the
appeal procedure followed in our Courts is instructive: an
application for leave to appeal or an appeal is lodged by way of
notice
setting out the grounds of appeal. The notice affords the
judicial officer the opportunity to respond thereto: in the lower
court
by the furnishing of reasons (Rule 51(8) of the Magistrates’
Court Rules) and in the High Court in determining the application
for
leave to appeal (Rule 49) and the furnishing of reasons in respect of
the ensuing order. The practice and requirement of joining,
for
example, the Master of the High Court or the Registrar of Deeds
ex
officio
as respondents is well entrenched: their response,
comments and recommendations in respect of the case, generally in the
form of
a report, are regarded by our Courts as invaluable and often
indispensable before orders are made. On a parity of reasoning, the
adjudicator, in my view, cannot be precluded from responding to the
main application where, it should be emphasised, the aim is
to assist
the Court in the adjudication of the appeal.
[9] One final observation. The applicant in support of the contention
of irregularity, relied on the unreported judgment of Tsoka
J in this
division, in
British American Tobacco v Antonio MHL
(Case no
23344/2008; 31October 2008). In that matter the learned Judge refused
to have regard to the contents of the adjudicator’s
affidavit
filed in similar circumstances as in the present matter, for the sole
reason that it had been filed late. The appropriateness
of the
affidavit was not dealt with and the applicant’s reliance on
this judgment, accordingly, is misplaced.
[10] For all the above reasons I conclude that the affidavit filed by
the adjudicator did not constitute an irregular step. Although
my
conclusion decides the fate of the applications I consider it
necessary to comment briefly on the prejudice relied upon by the
applicant.
[11] The applicant contends that the adjudicator in filing the
affidavit without having entered an appearance to oppose, attempted
to steal the march on the applicant by on the one hand effectively
opposing the application but on the other denying the applicant
the
right to a reply and to obtain a costs order against the adjudicator.
In addition the applicant laments the difficulty of having
to decide
whether to enrol the main application for hearing on the unopposed or
the opposed motion court roll. The applicant’s
perception of
prejudice is misconceived: it has overlooked the possibility of the
applicant supplementing its founding affidavit
in response to the
adjudicator’s affidavit, if considered necessary, and, as for
costs, in the unlikely event of this becoming
necessary, to affect an
amendment to seek an order for costs against the adjudicator.
Finally, the main applications remain unopposed
and therefore are to
be enrolled for hearing in the motion court hearing unopposed motion
matters in accordance with the directives
contained in the practice
manual of this division.
[12] In the result the applications are dismissed.
_________________________
FHD VAN
OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR APPLICANT ADV P VAN DER BERG
APPLICANT’S
ATTORNEYS BOWMAN GILFILLIAN
DATE
OF HEARING 17 JANUARY 2012
DATE
OF JUDGMENT 7 FEBRUARY 2012