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[2015] ZASCA 205
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South African Local Authorities Pension Fund v Mthembu (20649/2015) [2015] ZASCA 205 (3 December 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 20649/2014
In the matter between:
SOUTH AFRICAN LOCAL
AUTHORITIES
PENSION
FUND
Appellant
and
SIMANGELE EUNICE
MTHEMBU
First Respondent
LUKHAIMANE M A NO
Second Respondent
Neutral
citation:
South African Local
Authorities Pension Fund v Mthembu
(20649/2014)
2015 ZASCA 205
(3 December 2015)
Coram:
MPATI P, SHONGWE, TSHIQI and WALLIS JJA and
BAARTMAN AJA
Heard
:
12 November 2015
Delivered
:
3 December 2015
Summary:
Pension fund rules – full-time
student – meaning of – whether first respondent’s
daughter a full-time student
while studying at UNISA.
ORDER
On appeal from:
KwaZulu-Natal Local Division, Durban
(Ndamase A J, sitting as court of first instance):
The appeal is
dismissed with costs.
JUDGMENT
Wallis JA (Mpati
P, Shongwe and Tshiqi JJA and Baartman AJA concurring)
[1]
Mbalenhle Mthembu (Mbali), is the daughter
of the first respondent Ms Simangele Mthembu and the late Bhekizitha
Khanyile. Mr Khanyile
was formerly an employee of the Umdoni
Municipality and a member of the appellant, the South African Local
Authorities Pension
Fund (the Fund). After his death on 3 May 1997,
Ms Mthembu became entitled to claim a child’s pension on behalf
of Mbali
in terms of the provisions of rule 6.1.2 of the Fund’s
rules. On 25 May 2011 the Fund stopped paying the child’s
pension
for Mbali. It did so because it believed that she was no
longer a full-time student. Ms Mthembu disagreed and lodged a
complaint
with the Pension Funds Adjudicator. She was successful. The
Fund challenged that decision in terms of s 30P of the Pension
Funds Act.
[1]
It was unsuccessful in the high court but appeals with the leave of
that court.
[2]
Rule 6.1.2 of the Fund’s rules
provided for the payment on the death of a member of a child’s
pension ‘payable
to the member’s dependent children’.
[2]
Rule 1.3 defined the expression ‘dependent child’ in the
following terms:
‘
A
child … of a MEMBER provided such child is unmarried, is under
the age of 18 (eighteen) years and is dependent upon the
MEMBER at
the time of the MEMBER’S death and shall include a child whom
the TRUSTEES consider would have been dependent on
the MEMBER had the
MEMBER not died.
Where the
TRUSTEES so direct, the age limit of 18 (eighteen) years may be
extended:
-
up to 23 (twenty three) years where such child is a full-time
student;
or
-
indefinitely where such a child is wholly dependent upon the member
on medical grounds.’
[3]
Mbali was born on 3 October 1990. Under the
definition of dependent child she would therefore ordinarily have
ceased to qualify
for a child’s pension when she reached the
age of 18 years on 3 October 2008. However, she was still at school
at the time
and only finished her schooling at the end of 2010. As a
matter of fact the Fund did not withdraw her pension on that date no
doubt
because it regarded her as a full-time student. It only
withdrew it on 25 March 2011. The only issue is whether she was at
that
time a full-time student.
[4]
In her final year at school Mbali applied
for admission as a student at the University of KwaZulu-Natal (UKZN)
but was refused.
She also applied to the University of South Africa
(UNISA) and was accepted to register for a Bachelor of Commerce
degree
specialising in organisational psychology. In 2011 and 2012
she was studying through UNISA. She registered on the basis of
attempting
to complete her degree in the conventional three year
period and was undertaking as many courses as she would have been
required
to undertake had she been registered at any other
university.
[3]
We are not told how successful she was in her studies, although it
appears from her supporting affidavit that she progressed to
become a
resident student at the Nelson Mandela University, Port Elizabeth.
[5]
Mbali was not employed during this time.
Her mother said :
‘
She
spent her days either studying from home, meeting fellow students at
the UNISA campus for informal study groups, and attending
formal
tutorials and discussion classes at UNISA. … [H]er life and
her schedule revolved around her studies.’
[6]
The Fund says that this was not sufficient
to make Mbali a full-time student. In its view the stumbling block to
that conclusion
was that she was registered at UNISA, which is a
distance learning institution. It annexed to its affidavits documents
it had obtained
from UNISA that disclosed, so it said, that UNISA
does not have any full-time students.
[7]
The relevance of these documents is
debatable. After all, the question was not whether UNISA regarded
Mbali as a full-time student,
but whether she was a full-time student
within the contemplation of the Fund rules. But, be that as it may,
when the documents
were examined more closely they did not support
the Fund’s argument.
[8]
The first document came in response to a
request by the Fund. The question it posed was a curious one, namely:
‘
Is
it possible to study with Unisa part time/attend classes?’
The answer was:
‘
Unisa
is an open distance learning institution, you can only study part
time.’
Accompanying that
apparently decisive answer was a reference to a website where further
information could be obtained. And when
the website was visited it
revealed a different picture. It said in regard to the advantages of
open distance learning that:
‘
You
can study at your own pace, full time or part time.’
[9]
The Fund also relied on other responses
provided by UNISA on its website in the FAQ (frequently asked
questions) section. There
in response to the question:
‘
Does
UNISA have part-time and full-time students?’
it received the following
answer:
‘
Unisa
is a distance education institution. We do not have any full time
students because we do not
offer
any full-time classes.’
In response to another
question (not the same as that mentioned in the previous paragraph)
it again replied:
‘
Unisa
is an open distance learning institution; you can only study part
time.’
[10] This might have
seemed clear enough, but again the university referred parties
lodging enquiries through the FAQ site to a
more detailed document,
and that told a different story. Under the general query:
‘
What
is the difference between part-time study and full-time study?’
it explained that
there was confusion between the two and helpfully set out the
differences in tabular form. A part-time student
was someone who held
a full-time job and was only able to study in the early morning and
evening, and over weekends. Such a student
would take double the time
to complete a three-year degree or diploma.
[11]
In regard to full-time study UNISA said:
If you are not
employed and are able to enrol for the full study load of your
degree/diploma in order to complete it in the minimum
time period,
you will see yourself as a full-time student.’
That is precisely how
Mbali and her mother viewed her student life.
[12]
In any event it is not UNISA’s view
that matters, but what the rules of the Fund meant when they referred
to a full-time student.
The applicable principles of interpretation
are clear and need not be restated. What does the expression
‘full-time student’
mean in the context of the rules as a
whole? The Collins English Dictionary (1985) gives the following
definition for the word
‘full-time’:
‘
1.For
the entire time appropriate to an activity:
a
full-time job; a full-time student …
2.On a
full-time basis:
he works full-time.
… Compare
part-time’
The Concise Oxford
English Dictionary says simply that in its adjectival sense it means
‘occupying the whole of the time available’.
The Shorter
Oxford English Dictionary says ‘occupying or using all one’s
working time’.
[13]
These definitions certainly support the
view that Mbali was a full-time student. The Fund, however, proffers
its own definition.
It says that:
‘…
A
full-time student in terms of its rules is a student who is required
by the institution to devote all or substantially all of
her
productive time to her studies and is thus classified by the
institution as a full-time student.’
This definition
introduces elements to the concept of ‘full-time’ that
are unusual. It moves away from examining what
the student does to
what the institution requires of the student. Thus the student must
be ‘required’ to attend classes,
although counsel rightly
accepted that a student would still be a full time student if they
missed all their classes and spent
their time playing video games,
socialising or surfing. In other words it is enough if the
institution requires them to attend
classes. They do not in fact have
to do so. The result is that the diligent Mbali, who was working hard
and attending study groups
at the university, is not a full-time
student, but the layabout is. That is an unattractive proposition.
[14]
The other element of the Fund’s
definition is that the institution must classify the student as a
full-time student. But that
is a departure from the language of the
rule that finds no justification in the text. It would have the
effect of delegating to
the institution the task of determining
whether Mbali, or any other student, qualified for a child’s
pension. I can find
nothing in the rules that supports that approach.
It may, as the Fund accepted, make it administratively convenient for
it, but
that is no reason for the Fund to abdicate the responsibility
of construing and applying its own rules.
[15]
Not only do these glosses on the ordinary
meaning of the expression ‘full-time student’ not find
any purchase in the
text of the rules, but there is a clear
indication that the ordinary meaning is to be preferred. The
definition relates to a ‘dependent
child’. There are
three categories of children so described. The first is children
under the age of 18 years and dependent
upon the member of the Fund.
The second is the full-time student who is over the age of 18 years
but under the age of 23 years.
The third is the child who is over the
age of 18 years but remains wholly dependent on the member on medical
grounds. So, not only
is the expression ‘dependent child’
used, but all three categories are of children who would ordinarily
be dependent
on a parent, biological or adoptive, for the provision
of their needs in regard to food, shelter, clothing and the like.
[16]
The period of five years between 18 and 23
is the very period one would expect to be taken up by appropriate
tertiary studies in
the case of a dependent child. The duty of
support that parents owe their children may in appropriate cases
include a duty to support
them during tertiary education.
[4]
And if the child is a full-time student their dependence on the
parent for their support will almost certainly be essential. So
I am
unable to agree with the submission that the purpose of this
provision was to encourage children to undertake tertiary education.
Its purpose was clearly to make provision for the maintenance of a
child who continued to be dependent after the age of 18, because
they
were engaged in full-time study. That reinforces the notion that what
must be looked at is the nature of the student’s
study
commitments rather than any classification of them by a particular
institution.
[17]
In other words the Fund is required to
examine each case on its merits. That may add to its administrative
burdens but it is what
the rules require. It will have to look at the
course of study being pursued by the student and the commitment
demanded of them
by that course of study. If the course is of an
unusual character it is appropriate for the Fund to compare its
demands with those
of institutions where study is undoubtedly
full-time. And having done that it must make a decision whether the
student qualifies
for the child’s pension.
[18]
That conclusion seems to me to be both
sensible and practical. There is a vast array of courses available
for study after the completion
of the school years. Different
institutions offer them on differing bases. Thus, for example, there
is one well-known institution
in this country that offers daily
lectures to students in a conventional educational environment,
somewhere between school and
university. It says in its promotional
material that it offers support for a variety of higher education
degrees, diplomas and
certificates. Students attend classes on a
daily or at least a regular basis, but the degree or diploma or
certificate they obtain
at the end of their studies is from another
institution, including UNISA. A person attending that
institution would, on the
Fund’s definition, be a full-time
student. But they might be pursuing the same degree as Mbali, over
the same period and
with similar levels of commitment and effort. To
categorise the one as full-time and the other as part-time strikes me
as irrational
and not in accordance with the purpose of the rules in
providing for a child’s pension in respect of a child who is a
dependent
because of their full-time study commitments.
[19]
Both the Pension Funds Adjudicator and the
high court reached the same conclusion for very much the same
reasons. In my view they
were correct to do so. Accordingly the
appeal must be dismissed. There was a request from Ms Mthembu, who
was being assisted by
a public interest law firm, for the costs of
two counsel. In my view the briefing of two counsel was not justified
in what is a
relatively straightforward case.
[20]
The appeal is dismissed with costs.
M J D WALLIS
JUDGE OF
APPEAL
Appearances
For
appellant:
Alan Lamplough
Instructed
by:
Thipa
Inc, Sandton
Honey
Attorneys, Bloemfontein
For
respondent:
R B G Choudree SC (with him S F Pudifin-Jones)
Instructed
by:
Legal
Resources Centre, Durban
Matsepes,
Bloemfontein.
[1]
Pension Funds Act 24 of 1956
.
[2]
The rules have subsequently been amended.
[3]
The affidavits contained information from
the
University of Pretoria, the University of Stellenbosch or the
University of Johannesburg, but this is the standard period
for a
first degree at all South African universities, save in specialised
areas such as engineering, medicine and law.
[4]
Lesbury van Zyl, ‘Parents and Children’ in Brigette
Clark (ed)
Family Law Service
(Service Issue 64, 2015) at C9
and C10.