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[2019] ZAGPJHC 156
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Kim v Agri Staff Pension Fund and Others (2017/47543) [2019] ZAGPJHC 156 (6 February 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG
Case
No: 2017/47543
In
the matter between:
JEMANE
MERRISA
KIM
Applicant
And
AFGRI
STAFF PENSION
FUND
First Respondent
SANLAM
LIFE INSURANCE
LIMITED
Second Respondent
AFGRI
OPERATIONS (PTY) LTD T/A DAYBREAK
FARMS
Third Respondent
ARRIES,
GEORGE
DAVID
Fourth Respondent
ARRIES
NO, GEORGE
DAVID
Fifth Respondent
LUKHAIMANE
MA
NO
Sixth Respondent
JUDGMENT
COWEN
AJ:
1.
The applicants, Merissa Jemane and Whitney Adams, seek to set aside a
decision of the Board of the Afgri Staff Pension Fund ('the
Fund') to
distribute the death benefit of their mother, the late Florence
Arries ('the deceased'). The deceased was a member of
the Fund, which
is a pension fund organisation registered in terms of the Pension
Funds Act 24 of 1956 ('the Act').
2.
The Fund and the fourth respondent oppose the proceedings. The fourth
respondent is Mr George Arries, who was married to the
deceased at
the time of her death. Mr Arries had a daughter from a prior
relationship, Ms Catelynn Arries. He is also cited as
the fifth
respondent in his official capacity as Ms Arries' guardian as she was
a minor when the proceedings were instituted. Ms
Arries has not been
substituted as a party in her own name notwithstanding that she
reached the age of majority in February 2018.
The sixth respondent is
the Pension Funds Adjudicator ('the Adjudicator'). The Adjudicator
filed a short affidavit explaining that
it is abiding the Court's
decision. The second and third respondents have not participated in
the proceedings. The second respondent
is insurer Sanlam Life
Insurance Limited and the third respondent is Afgri Operations (Pty)
Ltd, the deceased's former employer.
3.
The deceased passed away on 13
August 2014. Her benefit with the Fund fell to be disposed of in
terms of section 37C of the Act.
[1]
In terms of section 37C, lump sum benefits that fall under the
section do not form part of the member's deceased estate. They are
dealt with under section 37C.
[2]
This Court held in
Mashazi
[3]
that the section was
intended to serve a 'social function': 'It was enacted to protect
dependency, even over the clear wishes of
the deceased. The section
specifically restricts freedom of testation in order that no
dependants are left without support.' The
Supreme Court of Appeal has
held that a fund is not bound by a member's nomination form when
distributing the benefit under section
37C.
[4]
4.
On 9 January 2015, the Board of the Fund, acting in terms of section
37C, allocated the deceased's death benefit to the applicants
(15%
each), the fourth respondent (35%), Ms Arries (30%) and the
deceased's mother (5%) ('the January 2015 decision').
5.
The allocation was not consistent with the deceased's nomination
form, in which the deceased nominated the applicants each to
receive
40% of the benefit and the fourth respondent and her mother each to
receive 10% of the benefit. The deceased did not nominate
Ms Arries
as a beneficiary .in her nomination form. According to the
affidavits, the nomination form recorded further that in the
event of
the deceased not having any dependants, then the applicants should
receive the benefit. The content of the nomination
form, though not
in dispute, is not in the applicants' possession nor on the record.
6.
In making the January 2015 decision, the Board accepted that the
fourth respondent and Ms Arries were both financially dependent
on
the deceased at the time of her death.
7.
On 26 November 2015, the
applicants lodged a complaint against the January 2015 decision with
the Adjudicator in terms of section
30A(3) of the Act.
[5]
The main ground of complaint was that Ms Arries was neither a
nominated beneficiary nor, as a matter of fact, a dependant of the
deceased. The applicants also disputed that the fourth respondent was
factually dependent on the deceased and claimed that they
had
separated several months before her death
[6]
.
In their complaint, the applicants placed various information before
the Adjudicator in this regard.
8.
On 25 April 2016, the Adjudicator set aside the January 2015 decision
and ordered the Board of the Fund to reconsider its decision,
and to
investigate the fourth respondent's and Ms Arries' dependency on the
deceased within eight weeks of the determination. In
conducting the
investigation, the Board was to consider the submissions made by the
applicants disputing dependency. The Board
was to pay the death
benefit to the deceased's beneficiaries within two weeks of
completion of the investigation.
9.
On 17 October 2016, the Board made a second decision distributing the
death benefit ('the October 2016 decision'). In the October
2016
decision, the Board allocated 15% to the first applicant, 20% to the
second applicant, 40% to the fourth respondent, 20% to
Ms Arries and
5% to the deceased's mother. The Board remained of the opinion that
both the fourth respondent and Ms Arries were
dependents of the
deceased when they were sharing a common household, which the Board
found was for an extensive period leading
to six months before her
death. It is the October 2016 decision that is the subject of this
review.
10.
On 14 November 2016 the
applicants lodged a further complaint against the October 2016
decision. A complaint was initially lodged
with the Fund itself in
terms of section 30A(1) of the Act.
[7]
In the absence of a response, on 21 April 2017, the applicants lodged
a further complaint with the Adjudicator in terms of section
30A(3)
of the Act both against the October 2016 decision and the Fund's
failure to deal with the complaint. On 24 April 2017, the
Adjudicator
made a ruling finding that that tribunal 'is unable to investigate
the matter twice on the same issue previously lodged.'
11.
This application was instituted on 15 December 2017. The substantive
relief sought in the notice of motion is, first, relief
setting aside
the October 2016 decision and secondly, relief ordering the Fund to
pay the benefit in accordance with the nomination
form.
12.
At the hearing of the
application, Mr Wilkins, who appeared for the applicants, informed
the Court that the applicants' cause of
action is a judicial review
of the Board's October 2016 decision in terms of the Promotion of
Administrative Justice Act 3 of 2000
('PAJA'). Both parties'
representatives submitted that a decision of a Fund taken in terms of
section 37C of the Act constitutes
administrative action and the
application was argued on that basis.
[8]
Mr Wilkins also informed the Court that the matter is not before the
Court as a statutory appeal against the decision of the Adjudicator
as contemplated by section 30P of the Act. Section 30P of the Act is
titled 'Access to Court' and provides a right to any party
who feels
aggrieved by a determination of the Adjudicator to apply to the High
Court for relief.
[9]
It is clear from the notice of motion that the application is not a
statutory appeal under section 30P. From the bar, Mr Wilkins
also
confirmed that the applicants conceded that the Fund was not bound to
distribute the benefit in accordance with the deceased's
nomination
form and submitted that the proper relief would be to refer the
matter back to the Fund for reconsideration.
13.
Mr Van der Berg SC advanced three points
in limine
on behalf
of the Fund. Although these were argued upfront, I requested and
heard argument also on the merits of the case.
14.
Mr Van der Berg submitted firstly, that the applicants had not
exhausted their internal remedies as contemplated by PAJA as
the
applicants had not approached the Court to seek an order compelling
the Adjudicator to determine their complaint against the
October 2016
decision. Secondly, he submitted that the applicants were bound by
both the January 2015 and October 2016 decisions
of the Adjudicator
which, in terms of section 300 of the Act, entitled 'Enforceability
of determination' are deemed to be civil
judgments of a court and had
not been challenged. The issues were, so the argument went,
res
judicata.
Thirdly, he submitted that the applicants were in any
event, well out of time in prosecuting the review as the application
was instituted
only on 15 December 2017 whereas the Board's October
2016 decision was taken over a year before hand and well over
180 days
after the Adjudicator had indicated that she would not
entertain the complaint.
15.
PAJA imposes a strict duty to
exhaust internal remedies before a court may review administrative
action. An applicant may, however,
apply for an exemption from the
duty to exhaust internal remedies in terms of section 7(2)(c) of
PAJA. An applicant for exemption
must demonstrate that exceptional
circumstances exist and it is in the interests of justice to review a
decision.
[10]
The Constitutional Court held in
Koyabe
[11]
that courts must determine
on a case by case basis whether the facts justify the grant of an
exemption. Factors that may be taken
into consideration include,
amongst others, whether the internal remedy is effective and
available and whether it is possible to
pursue without obstruction,
whether systemic or as a result of unwarranted administrative
conduct. It would be open to a Court
to grant an exemption where a
party has in good faith attempted to exhaust internal remedies but
was frustrated in his or her efforts
to do so.
16.
If it was necessary on the
facts of this case for the applicants to have applied for an
exemption from their duty to exhaust internal
remedies in terms of
section 7(2) of PAJA, that would be the end of the matter as the
applicants have not made such an application.
[12]
17.
The applicants successfully lodged a complaint against the January
2015 decision and when aggrieved by the October 2016 decision,
the
applicants sought again to utilise internal remedies to obtain relief
but were met with silence from the Fund and a decision
from the
Adjudicator that it would not consider what it considered to be the
same complaint a second time. The question is whether
they were
obliged, in order to 'exhaust' the remedies as contemplated by the
Act to approach a Court to compel the Adjudicator
to consider the
second complaint. While it may have been open to the applicants to
pursue relief of that nature, in my view it
was not incumbent upon
them to do so before proceeding with a review. Rather, the applicants
in this case may properly be regarded
to have concluded the internal
procedures when they received the notification from the Adjudicator
advising that the Adjudicator
considered itself to be unable to
consider what it regarded as the same complaint twice.
18.
In coming to this conclusion I
have considered whether the Adjudicator's refusal to decide the
complaint a second time was an obstruction
that could have been taken
into account as an exceptional circumstance in an application for
exemption. I have considered this
in light of the Koyabe decision
referred to above. This issue was not however decided in Koyabe. I am
satisfied that on the facts
of this case, internal remedies were
concluded. However, even if I am incorrect, in my view, the
applicants were relieved of their
duty of doing so when the
Adjudicator refused to consider the complaint.
[13]
I accordingly do not uphold the first point
in
limine.
19.
I am also unable to agree with the second point
in limine.
In
this regard, Mr Van der Berg submitted that the applicants were
non-suited because of their failure to challenge the prior decisions
of the Adjudicator, which stand and have the force of civil judgments
in terms of section 300(1) of the Act. The doctrine of
res
judicata
and
lis pendens,
so the argument went, precluded
consideration of the matter. I do not agree.
20.
The applicants had no reason to challenge the Adjudicator's
determination in respect of the January 2015 decision, which was
in
their favour and which, in substance, required a reconsideration of
the decision in terms of section 37C of the Act. As a matter
of fact,
the Fund then took a subsequent decision - the October 2016 decision.
The Adjudicator's first determination was implemented
and it is the
legality of the October 2016 decision that the applicants seek to
challenge. The first determination is neither pending
nor does it
have any binding effect that precludes a judicial review of a
subsequent decision.
21.
As regards the Adjudicator's second determination, the Adjudicator
did not make any determination on the merits of the complaint.
At
most, there is a decision of the Adjudicator akin to one where the
Adjudicator finds that she is
functus officio
because she had
already decided the matter. It is not a pending decision, but a
decision taken. It is, furthermore, not a decision
determining any
cause of action on its merits. The question whether the Adjudicator
was right or wrong in her conclusion that she
could not decide the
second complaint is not before me and I accordingly decline to make
any findings in that regard. Whatever
its status, its effect is no
more and no less than a decision by the Adjudicator to decline to
entertain a complaint on its merits.
22.
I now turn to the Fund's third point
in limine,
being that the
review was out of time as it was instituted more than 180 days from
not only the Board's decision - taken on 17 October
2016 - but more
than 180 days from 24 April 2017, the date when the Adjudicator
informed the applicants that their complaint would
not be determined.
In circumstances where internal remedies exist, PAJA requires, in
section 7(2)(1)(a) that an application for
judicial review be
instituted without unreasonable delay and not later than 180 days
after the date on which any internal remedies
have been concluded.
If, as I have found, the internal remedies were concluded when the
applicants received the Adjudicator's communication
of 24 April 2017,
it was incumbent on the Applicants to have instituted review
proceedings not later than a date in mid-October.
At best for the
applicants, the application for judicial review was instituted
approximately two months after the outer time limit
prescribed by
PAJA. In those circumstances, it was incumbent on the applicants to
apply for an extension of time in terms of section
9 of PAJA. Under
that section, a court may extend the time 'where the interests of
justice so require'.
23.
In prayer 1 of the notice of motion, the applicants applied for
condonation for the late institution of the application to the
extent
necessary. A consideration of the founding affidavit however, shows
that the application is an application for condonation
for failing to
comply with the six-week period for instituting proceedings in terms
of section 30P of the Act. These are, however,
not proceedings in
terms of that section.
24.
I am willing to assume in favour of the applicants that the failure
to plead in a manner that made it clear that reliance was
being
placed on section 9 of PAJA is not fatal to the case, as this would
place form over substance. On this basis, I have considered
whether
the applicants have made out a case that the interests of justice
warrant an extension of time for the institution of proceedings
until
December 2017 when the proceedings should have been instituted at the
very latest by mid October 2017.
25.
The question whether the interests of justice require the grant of
such extension depends on the facts and circumstances of
each case.
Relevant factors include the nature of the relief sought, the extent
and cause of the delay, its effect on the administration
of justice
and other litigants, the importance of the issues to be raised in the
intended proceedings, the reasonableness of the
explanation for the
delay and the prospects of success.
[14]
The party seeking an extension must furnish a full and reasonable
explanation for the delay which covers the entire duration
thereof.
[15]
26.1
deal first with the prospects of success. The applicants do not
mention PAJA in their founding affidavit. The Constitutional
Court
held in
Bato Star
[16]
that it is desirable for
litigants who seek to review administrative action to identify
clearly both the facts upon which they base
their cause of action and
the legal basis of their cause of action. The Court held that while
it is not necessary for a litigant
who relies on a statutory
provision to specify it, it must be clear from the facts alleged by a
litigant that the section is relevant
and operative.
27.
The question whether Ms Arries was factually dependent on the
deceased lies at the heart of this review. The Act defines a
dependant in section 1. The definition is a wide definition and
includes a person in respect of whom a member is legally liable
for
maintenance or would have become legally liable for maintenance if
the person had not died. Material to Ms Arries (and Mr Arries
for
that matter), it also includes various persons in respect of whom a
member is not legally liable for maintenance but such person
27.1 Was, in the opinion of the board,
upon the death of the member in fact dependent on the member for
maintenance,
27.2 Is the spouse of the member;
27.3 Is a child of the member,
including a posthumous child, an adopted child and a child born out
of wedlock.
28.
Mr Arries is eligible for consideration for a distribution not only
because he was nominated by the deceased in the nomination
form but
because he is a dependant under the section, being a spouse. Ms
Arries, however, is only a dependant if she falls under
the rubric of
factual dependency as defined.
29.
Mr Wilkins submission was that
the applicable review ground was an error of fact as contemplated by
the decision of the SCA in the
Pepkor
case.
[17]
In
Pepkor,
the
SCA held
[18]
that where legislation empowers a functionary to make a decision, in
the public interest, it should be made on the material facts
that
ought to have been available for the decision properly to be made. If
a decision has been made in ignorance of facts material
to a decision
and which should therefore have been before the functionary, the
decision may be reviewed and set aside. The
Pepkor
decision foreshadowed that
a review of this sort would fall under the rubric of section
6(2)(e)(iii) of PAJA, which provides that
administrative action is
reviewable if the action was taken because irrelevant considerations
were taken into account or relevant
considerations were not
considered. The SCA has since affirmed that an error of fact as
contemplated by
Pepkor
can
ground a review under both this sub-section and sub-section 6(2)(i)
(the catch-all review ground where an 'action is otherwise
unconstitutional or unlawful'.
[19]
However, in
Dumani v Nair,
the SCA held that in
applying the review ground, Courts must be astute to retain the
distinction between review and appeal and to
do so have held that it
is only available in circumstances where a 'functionary had made an
error in respect of a fact that was
established in the sense that it
was non-contentious and objectively verifiable.
[20]
That is not the case in this application - Ms Arries' factual
dependency on the deceased upon her death is neither non-contentious
nor susceptible to objective verification on the information before
the Court.
30.
Mr Wilkins did not rely on any other review ground. I am mindful
however that the applicants plead and allege in the founding
affidavit that Ms Arries was not a factual dependant at the time of
the deceased's death as she did not live with the deceased
at that
time and thus did not fall within the definition of dependency as
contemplated by section 1 and section 37C of the Act.
The point was
also made in the heads of argument. In this regard, the Board itself
found upon further investigation that Ms Arries
did not live with the
deceased at the time of her death and relied on the fact rather that
they had been dependent until that time.
The argument thus, at least
in part, accepts the correctness of the Board's factual findings and
is premised on a contention that
Ms Arries was simply not eligible
for any distribution as a matter of law or perhaps invariable
reasonableness. In order to succeed
in this argument on the papers,
it would be necessary to hold that factual dependency can never arise
as contemplated by section
37C read with (b)(i) of the defiition
where a person is not sharing a common household on the date of
death. I am unable to accept
this as the question whether a person is
in fact dependent on a deceased upon their death will always be a
question to be considered
in light of the nature of any dependency.
For example, and there may be many others, factual dependency may
arise in circumstances
where a person pays for the living expenses or
rental costs where that person lives elsewhere.
31.
Various other submissions are made in the heads of argument that
relate to an alleged irrationality or unreasonableness of the
October
2016 decision, none of which were developed in oral argument. Leaving
aside whether these grounds were adequately pleaded,
these
submissions amount to contentions that greater weight should have
been given to the nomination form, certain inferences should
have
been drawn from the nomination form or the Board should have
exercised the section 37C discretion in how it allocated the
benefit
differently. I am not persuaded that any of these submissions suffice
to ground a review on the basis of either irrationality
or
unreasonableness in the sense contemplated by PAJA.
32.
In my view, if there is merit in the application it lies in a
complaint, pleaded in the founding affidavit, that the Board failed
properly to investigate Ms Arries' factual dependency as required by
the Act and by the ruling of the Adjudicator both in respect
of the
fact of dependency and the extent of any dependency. This complaint
does not in my view give rise to a review under
Pepkor
as was
argued.
33.
However, this complaint raises
issues of public importance. It also raises issues of some complexity
as even a cursory consideration
of authority reveals. For example,
the issues are canvassed in Hunter et al
The
Pension Funds Act: A
Commentary on the Act regulations, selected
notices, directives and circulars
2010.
According to the authors,
'The
board of
a
fund
is not entitled to rely only on information in regard to potential
dependants of
a
deceased
member that is brought to its attention; it is instead required to
take all reasonable steps to identify and locate such
persons. What
steps will be considered 'reasonable' will depend on the
circumstances of the case, but funds are expected to balance,
on the
one hand, the need to give effect to the section by identifying all
potential beneficiaries and, on the other hand, practical
considerations such as the time and cost involved of doing
so.
[21]
The authors advance the view that the duty to investigate extends to
investigating the facts and circumstances that will enable
the board
of the fund to exercise its discretion as to how to allocate a
benefit equitably between dependants and nominees having
regard to
relevant factors.
[22]
These views and findings, in my view, have real force as it is
difficult to see how the Board of a Fund can perform its functions
fairly, lawfully, reasonably and rationally absent the Board taking
reasonable steps to ascertain relevant information. This applies
both
to the first step of identifying any dependant and thereafter the
second step of determining how equitably to allocate a benefit
between dependants and
I
or
nominees. On a consideration of the affidavits and while not fully
ventilated in argument, the applicants' complaint may well
have some
merit at least in respect of the adequacy of the Fund's
investigations to enable it to determine how equitably to allocate
the benefit between dependents and / or nominees.
34.
The importance of the issues and the prospects of success are not,
however, the only relevant considerations in assessing the
interests
of justice and there are other factors that persuade me that on the
facts of this case the interests of justice would
not be served by
granting an extension of time. These concern the reasonableness and
adequacy of the explanation for the delay,
the impact on the
administration of justice and other litigants, the nature of the
known prejudice in this case and the nature
of this particular
matter.
35.
Importantly, the applicants
have not offered an adequate explanation as to why, after receiving
the Adjudicator's letter in April
2017, it took until December 2017
to institute the review proceedings. On the facts of this case,
prompter action was required.
The applicant refers without any
elaboration to an absence of funds to instruct lawyers until October
2017. They also do not provide
an adequate explanation as to why,
when lawyers were instructed at the beginning of October 2017 and
within the 180-day period
in PAJA, proceedings were further delayed
for two months. It appears that the applicants wanted at that stage
to seek to persuade
the Adjudicator to change her mind, but then
altered course to pursue a review of the Board's decision. There is
also inadequate
information in the founding affidavits (and in turn
in answer) that enable a proper consideration of the respective
prejudice to
the parties affected by the delay that has already
ensued. Yet it is clear on the common cause facts that the nominees
and dependants
each need their distribution. In matters of this sort,
the administration of justice will often be served by finality being
reached
within a relatively short time-frame because the
distributions made are made to alleviate dependency
[23]
.
Long delays that result in funds being withheld from distribution can
cause immense prejudice to people and their ability to support
themselves on the death of a person. There may be cases where no such
prejudice arises, but on the common cause facts, this is
not such a
case. The deceased . died in August 2014 and while both the Fund and
the Adjudicator contributed to the delays until
April 2017, the
delays thereafter are the applicants' responsibility.
36.
Furthermore, this is not a case where the applicants will receive no
distribution. They are to receive a distribution. There
has also
already been a redetermination that has resulted in a reduction of Ms
Arries' allocation based on the same complaint.
I have also
considered that the applicants' complaint about the inadequacy of the
investigation is stronger as regards the Fund
being in a position
equitably to allocate the benefit between nominees and dependants
than it being in a position to decide that
Ms Arries should benefit
at all. And Ms Arries has not been substituted as a party in her own
name.
37.
I conclude that the interests of justice will be served if there is
finality in this matter that has been drawn out for a considerable
length of time in circumstances where each person affected most
probably has a claim to a distribution under the Act.
38.
In these circumstances, I am satisfied that the application was
instituted late and an extension of time should not be granted
in
terms of section 9 of PAJA and for this reason the application for
condonation should be dismissed. In the result, it is not
appropriate
for the Court to make further findings on the merits of the
application.
39.
This leaves the question of
costs. The applicants have not succeeded in obtaining their relief. I
am however of the view that the
parties should each carry their own
costs in this application. The applicants were in my view justifiably
aggrieved at the manner
in which they were engaged by the Fund in
their attempts to resolve their dispute. They received no response to
their second letter
of complaint and they have raised complaints that
may well have merit. The Fund adopted a technical defence to the
application
that was concerned less with explaining how it reached
its decision and more with seeking to persuade the Court to decline
to permit
access to court. The Fund is performing an important social
function when making determinations in terms of section 37C of the
Act. When dealing with challenges to its decisions it is appropriate
that a Fund assist a Court, and provide a Court with sufficient
information in response to the challenges advanced regarding how its
decisions were taken and what investigations were done, whether
through provision of its record and reasons or through the filing of
its affidavits. A Fund should also be diligent in its dealings
with
persons aggrieved by its decisions and in the usual course, in any
subsequent litigation, not regard themselves as an adversary
of a
person aggrieved by their decisions.
[24]
This is not a case where bad faith was alleged in the founding
affidavit.
40.
Although the Fourth Respondent opposed the application, there was no
explanation offered for the Fourth Respondent's belated
involvement
in the application and non-compliance with the Practice Directives.
Furthermore, the Fourth Respondent's participation
was on a very
narrow basis that served to highlight the contested nature of the
Arries' factual dependency.
41.
I make the following order.
41.1 The application for condonation
for the late institution of proceedings is dismissed.
41.2 Each party is to pay its own
costs.
_____________________
SJ
COWEN
ACTING
JUDGE OF THE HIGH COURT
Date
of Hearing: 22 November 2018
Judgment
Delivered: 05 February 2019
APPEARANCES
For
the Applicant: Adv Mr Wilkins
Instructed
By: Marx Attorneys Johannesburg C/O Howard Salmon Attorneys
For
the First Respondent: Mr Van der Berg SC
Instructed
By: Shepstone & Wylie Attorneys Johannesburg
For
the Fourth Respondent: Mr Mchasa
Instructed
By: Mahlangu Attorneys Johannesburg
[1]
Section 37C(1) provides as follows (with emphasis added to highlight
relevant portions):
(1)
Notwithstanding anything to the contrary contained in any law or in
the rules of a registered fund, any benefit (other than
a benefit
payable as a pension to the spouse or child of the member in terms
of the rules of a registered fund, which must be
dealt with in terms
of such rules) payable by such a fund upon the death of a member,
shall, subject to a pledge in accordance
with section 19 (5) (b) (i)
and subject to the provisions of sections 37A (3) and 37D, not form
part of the assets in the estate
of such a member. but shall be
dealt with in the following manner:
a) ...
(b) ...
(bA) If a member has a dependant and
the member has also designated in writing to the fund a nominee to
receive the benefit or
such portion of the benefit as is specified
by the member in writing to the fund, the fund shall within twelve
months of the
death of such member pay the benefit or such portion
thereof to such dependant or nominee in such proportions as the
board may
deem equitable: Provided that this paragraph shall only
apply to the designation of a nominee made on or after 30 June 1989:
Provided further that, in respect of a designation made on or after
the said date, this paragraph shall not prohibit a fund from
paying
the benefit. either to a dependant or nominee contemplated in this
paragraph or, if there is more than one such dependant
or nominee,
in proportions to any or all of those dependants and nominees.
(c) ...
[2]
Kaplan and another v Professional and Executive Retirement Fund and
another [1999] 3 All SA 1 (A)
[3]
Mashazi v African Products Retirement Benefit Provident Fund 2003(1)
SA 629 at 632H-J
[4]
Kaplan, supra
[5]
Section 30A is entitled ' Submission and consideration of
complaints' and provides as follows.
(1) Notwithstanding the rules of any
fund, a complainant may lodge a written complaint with a fund for
consideration by the board
of the fund.
(2) A complaint so lodged shall be
properly considered and replied to in writing by the fund or the
employer who participates
in a fund within 30 days after the receipt
thereof.
(3) If the complainant is not
satisfied with the reply contemplated in subsection (2), or if the
fund or the employer who participates
in a fund fails to reply
within 30 days after the receipt of the complaint the complainant
may lodge the complaint with the Adjudicator.
(4) Subject to section 301, the
Adjudicator may on good cause shown by any affected party-
(a) extend a period specified in
subsection (2) or (3) before or after expiry of that period; or
(b) condone non-compliance with any
time limit specified in subsection (2) or (3).
[6]
It should be noted upfront that the fourth respondent, as a spouse
of the deceased, is in any event a dependant under the Act.
[7]
See fn 5 above.
[8]
I was referred to Titi v Funds at Work Umbrella Provident Fund
(1728/2010) [2011] ZAECMHC 22 (1O March 2011) and Guarnieri v
Funds
at Work Umbrella Pension Fund and Others (47754/2016) [2018] ZAGPPHC
579 (24 May 2018).
[9]
30P Access to court
(1) Any party who feels aggrieved by
a determination of the Adjudicator may, within six weeks after the
date of the determination,
apply to the division of the High Court
which has jurisdiction, for relief, and shall at the same time give
written notice of
his or her intention so to apply to the other
parties to the complaint.
(2) The division of the High Court
contemplated in subsection (1) may consider the merits of the
complaint made to the Adjudicator
under section 30A (3) and on which
the Adjudicator's determination was based, and may make any order it
deems fit.
(3) Subsection (2) shall not affect
the court's power to decide that sufficient evidence has been
adduced on which a decision
can be arrived at, and to order that no
further evidence shall be adduced.
[10]
Koyabe and Others v Minister for Home Affairs and Others (Lawyers
for Human Rights as Amicus Curiae) 2010(4) SA 327 (CC) at paragraph
34.
[11]
Supra at paragraphs 44 and 48
[12]
This was the result in Titi v Funds at Work Umbrella Provident Fund
(1728/2010) [2011] ZAECMHC 22 (10 March 2011)
[13]
Cf Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining And
Development Company Ltd and Others
(2014 (3) BCLR 265
(CC);
2014 (5)
SA 138
(CC)) [201
3] ZACC 52
;
[2013] ZACC 48
(13 December 2013) esp
at para 96 with reference to the decision of that Court in
Bengwenyama Minerals (Pty) Ltd and Others v
Genorah Resources (Pty)
Ltd and Others (CCT 39/10)
[2010] ZACC 26
;
2011 (4) SA 113
(CC) ;
2011 (3) BCLR 229
(CC) (30 November 2010).
[14]
City of Cape Town v Aurecon South Africa (Pty) Ltd (CCT21/16)
[2017]
ZACC 5
;
2017 (6) BCLR 730
(CC);
2017 (4) SA 223
(CC) (28 February
2017) at paragraph 46
[15]
Camps Bay Ratepayers ' and Residents Association v Harrison
[2010] 2
All SA 519
(SCA) at para 54
[16]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others (CCT 27/03) [2004] ZACC 15; 2004(4) SA
490 (CC);
2004(7) BCLR 687 (CC) 12 March 2004) at paragraph 27.
[17]
Pepkor Retirement Fund and another v Financial Services Board and
another [2003] 3 All SA 21 (SCA).
[18]
At paragraph 47
[19]
Chairperson's Association v Minister of Arts and Culture 2007(5) SA
236 (SCA) at paragraph 48 Chairman State Tender Board v Digital
Voice Processing (Pty) Ltd; Chairman State Tender Board v Sneller
Digital (Pty) Ltd 2012(2) SA 16 (SCA) at paragraph 34.
[20]
Dumani v Nair and Another (144/2012)
[2012] ZASCA 196
;
2013 (2) SA
274
(SCA);
[2013] 2 All SA 125
(SCA) (30 November 2012) at paragraph
32. See too Airports Company South Africa v Tswelokgotso Trading
Enterprises CC (19548/2015)
[2018] ZAGPJHC 476;
2019 (1) SA 204
(GJ)
(22 June 2018)
[21]
See p 684-5. The authors motivate their views in light of the fund's
duty of good faith to all persons with an interest in the
fund and
the determination of the former adjudicator (then Prof John Murphy)
in Sikhali & another v Metal Industries Provident
Fund (1)
[2001] 12 BPLR 2895 (PFA) in which the board's duty is described as
follows at para 14: 'There is a common misconception
amongst the
parties in this matter and the pensions industry at large, that
there is duty on a dependant to come forward and
inform the board of
his or her status and potential entitlement to a death benefit. In
terms of section 37Cof the Act, the onus
is squarely on the board of
management of a pension fund to conduct an investigation to trace
the dependents of a deceased. Thus,
in any death benefit claim
arising out of a pension fund organization, it is imperative for the
board to take all reasonable
steps to locate the dependants of the
deceased.'
[22]
See p 691 to 693.
[23]
I am mindful that the 180-day limit in PAJA is an outer limit and
the section 30P procedures are to be instituted within 6 weeks.
I am
also mindful that under the Act, a Fund must make a distribution
after a 12 month period from the death of a member. See
section
37(C) at fn 1 above.
[24]
Different cases will warrant different responses by funds. Though
made in a different context and on different facts, the remarks
of
Pickard J in Cash Paymaster SeNices (Pfy) Ltd v Eastern Cape
Province and Others1999 (1) SA 324 (Ck) ([1997]
4 All SA 363)
at
353F - 3531 are instructive: 'It is almost standard practice that an
independent tribunal such as the Tender Board would in
review
proceedings comply with the requirements of Rule 53 of the Uniform
Rules of Court by making available the record of its
proceedings and
its reasons and such other documentation as the Court may need to
adjudicate upon the matter and, if necessary,
to file an affidavit
setting out the circumstances under which the decision was arrived
at. It seems, however, unusual to me
that an independent tribunal
such as the Tender Board should file such comprehensive and lengthy
papers and offer such stringent
opposition by employing senior
counsel and the like to argue their case. More often than not
independent tribunals, having done
their duty in terms of the
provisions of Rule 53, take the attitude that they abide the
decision of the Court and leave the other
matters to the interested
parties to dispute before the Court.