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2024
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[2024] ZAGPPHC 242
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Mntsweni and Others v Government Employees Pension Fund and Others (020044/2024) [2024] ZAGPPHC 242 (11 March 2024)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
(GAUTENG DIVISION,
PRETORIA)
Case No: 020044/2024
Reportable: No
Of interest to other
Judges: No
Revised: No
Date:
SIGNATURE
In the matter between:
SAMUEL KGOLOKO
MNTSWENI
1
ST
Applicant
NTHABISENG
THEBE
2
ND
Applicant
MARY KELEBOGILE
MOLWANTWA
3
RD
Applicant
KOKETSO IGNATIOUS
MALATSE
4
TH
Applicant
KABELO TSHWATLHANG
5
TH
Applicant
and
GOVERNMENT EMPLOYEES
PENSION FUND
1
ST
Respondent
C[...] K[...]
T[...]
2
ND
Respondent
SHERIFF,
ODI
3
RD
Respondent
STANDARD BANK LIMITED
4
TH
Respondent
JUDGEMENT
MOOKI
J
1
The
applicants seek the following relief:
Suspension
of paragraph 2 of an order made in the regional magistrate’s
court pending the appointment of an executor to
a deceased estate.
Interdicting
the Government Employees Pension Fund from paying a pension
interest until the appointment of an executor to a
deceased estate.
Interdicting
the Sheriff from executing paragraph 2 of an order made in the
regional magistrate’s court pending the appointment
of an
executor to a deceased estate.
2
The
applicants approached the Court on an urgent basis. The Court
determined that the matter was urgent. The second respondent
opposes the relief sought and raised several preliminary
objections. Those objections are:
2.1
The
Court lack jurisdiction, in that the applicants’ cause of
action is based on an order by the Regional Court of the
Regional
Division of the North West, held at Ga-Rankuwa; within the
jurisdiction of the North-West Division of the High Court.
2.2
The
applicants lack standing for the relief that they seek.
2.3
No
cause of action in that the High Court may interfere with an order
of the Magistrates’ Court only in an appeal or a
review of
such an order; whereas the applicants do not seek such appeal
and/or review.
3
The applicants did not file a replying
affidavit.
4
The second respondent, whom I describe as
“the respondent” for ease of reference, was married to
D[...] B[...] T[...]
(“the deceased”). They were married
in terms of a civil marriage on 3 May 2021.
5
The deceased issued summons in divorce
proceedings in the High Court in 2022. The deceased then abandoned
the proceedings. The respondent
instituted divorce proceedings out of
the Ga-Rankuwa Regional Court, North-West Division. She served
process on the deceased in
person. The decease did not oppose the
action. The regional court granted a decree of divorce on 9 October
2023, on the following
terms:
Equal division of joint
estate. The defendant must pay maintenance in the sum of R4500 per
month in respect of the plaintiff for
a period of twelf (sic) (12)
months, from 07/12/23 until 07/12/24 payable into plaintiff’s
standard bank account number […].
That part (50%) of the
pension interst (sic) in the GEPF pension fund due or assigned to the
plaintiff be paid to the plaintiff
on the date of divorce. That the
(Asst.) Registrar forthwith notify the Fund concerned that an
endorsement be made in the records
of that Fund that part of the
pension interest concerned is so payable to the other party and that
the administrator of the pension
fund furnish proof of such
endorsement to the (Asst.) Registrar, in writing within one (1) month
of receipt of such notification.
(as per section 11 of Act 55 of
2003) the GEPF pension fund is ordered to pay an amount equal to 50%
of the value of pension fund
no. […] of the defendant as on
date of divorce to the plaintiff. No order is made in respect of
costs.
6
The deceased brought an application on 27
November 2023, seeking a rescission of the order by the Regional
Court. He sought relief
that the order be declared void because:
6.1
There was a pending divorce action in the High Court; and
6.2
The decree of divorce was granted erroneously because the respondent
did not advise the court that she had
been served with summons out of
another court.
7
The respondent took issue with the papers
as formulated by the deceased. The deceased was ordered to amend his
papers. The deceased
did not file amended papers as ordered.
8
The Regional Court issued a
rule
nisi
on 14 December 2023. The
rule was discharged on 16 February 2024.
9
The respondent’s point on
jurisdiction is dispositive of the matter.
10
The
applicants seek the Court to intervene in relation to an order by a
Regional Court in the Regional Division in the North-West
Province.
The Gauteng Division of the High Court has no jurisdiction over
regional courts in the North West Province.
11
Section
21 of the Superior
Courts Act, 10 of 2013
deals with the jurisdiction of the High Court:
“
Persons
over whom and matters in relation to which Divisions have
jurisdiction.—
(1)
A Division has jurisdiction over all persons residing or being in,
and in relation to all causes
arising and all offences triable
within, its area of jurisdiction and all other matters of which it
may according to law take cognisance,
and has the power ------
”
12
The
cause of action in this matter arouse outside the area of
jurisdiction of this Court.
13
The
relief sought would not have been competent even if this Court had
jurisdiction. That is because the High Court has limited
jurisdiction
in relation to proceedings in a Regional Court. The High Court may
only consider appeals or reviews of orders by a
Regional Court. A
stay of an order by a Regional Court falls outside the powers of a
High Court.
14
The
application cannot succeed. I make the following order:
14.1 The
application is enrolled as urgent in terms of Rule 6(12).
14.2 The
application is dismissed for lack of jurisdiction.
14.3 The applicants
are ordered to pay costs.
Omphemetse Mooki
Judge of the High Court
Heard: 6 March 2024
Decided: 11 March 2024
For the applicants: P
Lebea
Instructed by: Fadane LL
Attorneys Inc.
For the second
respondent: WT Rakau (Advocate with a trust account)