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2024
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[2024] ZAECQBHC 17
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Papu v Government for Employees Pension Fund (3676/2021) [2024] ZAECQBHC 17 (5 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GQEBERHA)
CASE
NUMBER.: 3676/2021
In the matter between:
NOMAKWEZI
PAPU
Applicant
And
GOVERNMENT
EMPLOYEES PENSION FUND
Respondent
JUDGMENT
Beshe
J
[1]
The applicant is a retired educator who was employed by the
Department of Education, Eastern Cape. She retired
on 31 October 2019
on the ground of ill health.
[2]
The dispute between the parties concerns the
quantification of applicant’s pension benefits by the
respondent following her retirement. Applicant asserts that her
benefits were incorrectly calculated by the respondent who relied
on
an incorrect date as to when her pensionable service commenced. To
this end, applicant seeks the following relief:
‘
Directing
that the respondent’s failure to correct its records relating
to the applicant’s pensionable service period
commencing on 12
February 1987 and concluding on 31 October 2019 be judicially
reviewed and set aside, alternatively, declared
unlawful as
administrative action which is not lawful, reasonable or procedurally
fair.
Directing
that the respondent take such administrative or other steps as may be
necessary to correct its records so as to reflect
the applicant’s
pensionable service discharged with the Department of Education,
Eastern Cape Province, commencing on 12
February 1987 and terminating
on 31 October 2019.’
[3]
The 12 February 1987 is the date that applicant
alleges her pensionable service commenced. That during the
period 12
February 1987 to 31 October 2019 when she retired, she contributed to
the pension fund uninterruptedly. Upon requesting
an estimate of her
benefits during 2019, her employment details in the document provided
by respondent reflected her pensionable
service date as commencing on
1 March 1995. Following her retirement, respondent advised her of
what was due to her in the form
of gratuity and annuity figures. Not
being satisfied with respondent’s figures/calculations, she
requested information pertaining
to documentation upon which
respondent based its calculations. It was after a lot of song and
dance that respondent finally provided
the applicant with certain
documents which included a form Z102. This is a form that is
allegedly completed by the employer (in
this case, the Department of
Education) and submitted to the respondent. It appears to be common
cause that the respondent relied
on this form in computing
applicant’s pension benefit. In the said form, applicant’s
commencement date is recorded
as being the 1 March 1995. It is also
common cause that in other documents furnished to the applicant by
the respondent, the 12
February 1987 features as the date upon which
applicant commenced her service with the Department of Education.
Applicant’s
complaint is that the respondent failed to
investigate the contradictions that appear ex facie the documents at
its disposal and
to accordingly correct the date on which applicant
started working as an educator. Applicant contends that respondent’s
failure
to take steps to correct the information relating to her
pensionable period of service is reviewable and falls to be set
aside.
That respondent’s failure in this regard amounts to
unlawful administrative action, it is unreasonable and procedurally
unfair,
so the applicant contends.
[4]
Respondent had raised the nonjoinder of the Member
of Executive Council for Department of Education as a
part in limine.
That point together with opposition to the merits of the application
was not pursued with any enthusiasm. Respondent’s
counsel Mr
Lambrechts rightly pointed out that a number of decisions emanating
from this court were against the respondent. He
could not point to
any reason why this court should not follow those decisions. He
conceded that documents at respondent’s
disposal were
contradictory and drew the court’s attention to annexure D30 to
the founding affidavit. A form T.I. 111 wherein
an amount is
reflected as the annual pensionable amount for the period when
applicant is said to have been on probation from 1987
to when she was
permanently employed in 1995.
[5]
Respondent pointed out in answer that applicant
was only admitted to the pension fund with effect from 1
March 1995
when she was permanently employed. This is also reflected in the said
form T.I. 111. Be that as it may, as both counsel
have pointed out,
courts have previously reiterated the constitutional duty on the part
of the respondent to see to it that the
applicant was paid the
correct pension amounts. See in this regard the matter between
Nomangwanya Hangana and the present respondent.
[1]
In that matter, Revelas J went to state that “the respondent
failed to act in accordance with its statutory and constitutional
obligations and chose to shift the blame onto the Department. Once
the respondent realised that there was an error in its calculation
of
the pension payment, it should have taken steps to rectify it, and
not wait for the applicant to take it up with the department
…
…”. This decision was quoted with approval and followed
in subsequent cases. Namely Nomangwanya Hangana v
Government
Employees Pension Fund
[2]
;
Washington Mhlontlo v Government Employees Pension Fund
[3]
.
All these decisions emanate from the Eastern Cape Division of the
High Court, Gqeberha.
[6]
The facts of this present case are similar to a
large extent to those of the two cases referred to earlier,
Hangana
and Mhlontlo. I am also in agreement with the sentiments expressed by
Revelas J in Hangana matter about what is expected
of the respondent.
By failing to follow up or investigate the information at its
disposal in order to rectify or confirm the date
applicant became
entitled to a pension, the respondent acted unlawfully, unreasonably
and procedurally unfair. This is so because
as provided for in
Section 3 (1) of the Promotion of Administrative Justice Act
(PAJA).
[4]
Administrative action
which materially and adversely affects the rights of legitimate
expectations of any person must be procedurally
fair. In my view, for
respondent to simply state that it does not keep records of employers
and substantially relies on Form Z102
which is completed by her
employer is not enough and is therefore not procedurally fair.
Fortunately, this assertion was not persisted
with in argument. I am
satisfied that the applicant has made out a case for the order she
seeks. As far as costs are concerned,
I see no reason why I should
not grant a costs order as sought by the applicant in view of the
previous matters where the courts
in this division have made a
pronouncement about the defences raised by the respondent, dismissing
them.
[7]
Accordingly, the following order will issue:
1. That the respondent’s
failure to correct its records relating to the applicant’s
pensionable service period commencing
on 12 February 1987 and
concluding on 31 October 2019 be judicially reviewed and set aside as
being unlawful administrative action,
which is not reasonable and/or
procedurally fair.
2. That the respondent
takes such administrative or other steps as may be necessary to
correct its records so as to reflect the
applicant’s
pensionable service discharged with the Department of Education,
Eastern Cape Province, commencing on 12 February
1987 and terminating
on 31 October 2019.
3.
That the respondent pays the applicant’s costs, as between
attorney and client.
_______________
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant :
Adv:
K Morris
Instructed
by
:
O’BRIEN
INC.
29
Bird Street
Central
GQEBERHA
Ref:
Mr R O’Brien
Tel.:
041 – 582 1309
For
the Respondent :
Adv: Lambrecht
Instructed
by
:
MPOYANA
LEDWABA ATTORNEYS
C/o
RWEXANA ATTORNEYS
Harmony
Building, Ground Floor
Office
No. 3, Corner Graham & Market Streets
North
End
GQEBERHA
Ref.: Mr. L Rwexana
Tel.: 041 – 484
2137
Date
Heard
:
15 February
2024
Date
Reserved
:
15 February
2024
Date
Delivered
:
5 March
2024
[1]
Nomangwanya
Hangana Case Number 2608/2017 per Revelas J at paragraph [14].
[2]
Case
number 3353/2019.
[3]
Case
Number 2398/2020.
[4]
Act
3 of 2000.