CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 34/21
In the matter between:
MUNICIPAL EMPLOYEES PENSION FUND First Applicant
AKANI RETIREMENT FUND ADMINISTRATORS
(PTY) LIMITED Second Applicant
and
DINEO INNOLENTIA MONGWAKETSE Respondent
and
CENTRE FOR APPLIED LEGAL STUDIES Amicus Curiae
Neutral citation: Municipal Employees Pension Fund and Another v Mongwaketse
[2022] ZACC 9
Coram: Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Rogers AJ, Theron J,
Tlaletsi AJ and Tshiqi J
Judgments: Rogers AJ (unanimous)
Heard on: 30 November 2021
Decided on: 14 March 2022
Summary: Pension Funds Act 24 of 1956 — definitions of “complainant” and
“complaint” — purported admission to membership of ineligible
member — whether such person is a “complainant” as envisaged
in the Act
2
Pension Fund Adjudicator — jurisdiction to grant unjustified
enrichment relief — whether case for such relief made out
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Local Division, Johannesburg) :
1. Leave to appeal is granted.
2. The appeal is dismissed.
JUDGMENT
ROGERS AJ (Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and
Tshiqi J concurring):
Introduction
[1] The respondent, Ms Dineo Innolentia Mongwaketse, lodged a grievance with the
Pension Fund Adjudicator (Adjudicator) in terms of Chapter VA of the
Pension Funds Act1 (Act) against the first applicant, the Municipal Employees Pension
Fund (MEPF or the Fund), and against the second applicant, Akani Retirement Fund
Administrators (Pty) L imited, the MEPF’s administrator. The grievance concerned
Ms Mongwaketse’s purported membership of the MEPF. The Adjudicator found in
favour of Ms Mongwaketse, ordering the MEPF to repay to her all contributions made
in respect of her purported membership. Th e main legal issue for determination is
1 24 of 1956.
ROGERS AJ
3
whether Ms Mongwaketse’s grievance was a “complaint” and whether she was a
“complainant” as these terms are defined in section 1 of the Act. 2 If her grievance did
not qualify as a “complaint” by a “complainant” , the Adjudicator lacked jurisdiction to
entertain the grievance. If the Adjudicator had jurisdiction, further questions arise as to
whether Ms Mongwaketse was entitled to the relief which the Adjudicator awarded her.
Since the second applicant does not have any distinct interest in the proceedings, I shall
refer only to the MEPF, an expression which covers both applicants where the context
so indicates.
Factual background
[2] In February 2012 Ms Mongwaketse began employment with the Ngaka Modiri
Molema District Municipality (Municipality) as its chief audit executive. Her
employment contract was for a fixed term of five years. It provided that at the end of
the five-year term she would be offered an opportunity to renew the agreement before
the position was adv ertised. The Municipality’s municipal manager and
executive authority were not to withhold this opportunity unreasonably. The renewal
opportunity was subject to satisfactory work performance in the initial term.
[3] Ms Mongwaketse and the Municipality signe d an application form for her
membership of the MEPF . In accordance with the MEPF’s rules, th e form specified
that the contributions payable by her and the Municipality would be 7.5% and 22%
respectively of her monthly pensionable emoluments. The form did not state that she
was a fixed -term employee and did not provide for recording the new member’s
employment status.
[4] Ms Mongwaketse’s remuneration package was inclusive of all benefits. If she
wanted to belong to a pension fund, she had to make all contributions. She understood
that she was entitled to join the MEP F. The Municipality would deduct from her
monthly remuneration and pay to the MEPF con tributions equating to 7.5% and 22%,
2 These definitions are quoted in full at [41] below.
ROGERS AJ
4
the whole of which would be contributions made by her. In November 2014, however,
she received a benefit statement indicating that upon withdrawal from the MEPF her
benefit would be calculated only with reference to the 7.5% contributions. She queried
this. It was at this time, she says, that she learnt that the MEPF’s rules did not entitle
fixed-term employees to be members.
[5] It is unnecessary to trace Ms Mongwaketse’s endeavours to resolve the problem
and the conflicting information she received from the MEPF. Ms Mongwaketse asked
the Municipality to stop deducting p ension fund contributions from her remuneration.
In September 2015 the Municipality notified the MEPF that all contributions in respect
of Ms Mongwaketse’s purported membership had been made by her alone and that her
joining the MEPF had been an error. T he Municipality asked that she be withdrawn
from the MEPF and that all contributions be refunded to her with interest. The last
contributions in respect of her purported membership were paid in September 2015.
[6] The MEPF’s eventual stance, which it maintai ned in the ensuing litigation, was
that Ms Mongwaketse had become a member of the Fund. The MEPF refused to refund
the contributions. Ms Mongwaketse’s employment with the Municipality terminated at
the end of January 2017 and was not renewed. In Februar y the Municipality submitted
a termination of service form to the MEPF.
The proceedings before the Adjudicator
[7] In March 2017 Ms Mongwaketse lodged her grievance with the Adjudicator.
After tracing the history of the matter, Ms Mongwaketse concluded:
“According to the rules of the pension fund I am excluded as member. Which means
to begin with I shouldn’t have been a member . . . .
The pension fund legal adviser . . . in our meeting dated 10 February 2016 has conceded
to the fact that indeed I am excluded therefore that means the contributions received by
the fund were solely from me, he will meet with trustees and take it from there.
ROGERS AJ
5
Since our meeting with the legal advisor it is now 11 months, I have not heard a thing
from the fund.
Recommendations
That the Adjudicator instructs the Municipal Employees Pension Fund Administrators
to pay me my total contributions (i.e. 7.5% + 22% as all this was contributed and
structured by me) × 1.5 plus 22% mora interest because I should have been paid by
December 2015 the latest.”
[8] Ms Mongwaketse quantified her claim , though not explicitly, with reference to
clause 37(1)(b) of the MEPF’s rules. In terms of that clause, upon resignation,
discharge or leaving the local authority’s service , a member is entitled to the amount of
her contributions plus interest at the rate determined by the MEPF’s management
committee , multiplied by 1.5. However, the contributions contemplated in
clause 37(1)(b) are the contributions made by the member, that is the 7.5%
contributions, whereas Ms Mongwaketse sought to apply the formula to the entirety of
the contributions, that is 29.5%.
[9] The Adjudicator invited the Municipality and the MEPF to respond to the
complaint. The Municipality’s response is not in the record, but it appears fro m the
Adjudicator’s determination that the Municipality informed the Adjudicator that the
total of all contributions made in respect of Ms Mongwaketse’s purported membership
was R856 489.94.
[10] On 8 June 2017, and before responding to the grievance, the MEPF paid
Ms Mongwaketse R237 422.67, supposedly as her net withdrawal benefit in terms of
the rules, after deducting R133 606.51 for income tax. The gross amount of
R371 129.18 was calculated in terms of clause 37(1)(b) as applied only to the 7.5%
contributions.
[11] On 10 October 2017 the MEPF responded to the grievance. The MEPF told the
Adjudicator that Ms Mongwaketse had joined the MEPF in February 2012, qualifying
ROGERS AJ
6
for all the benefits for which the rules provided, including ill -health and death benefits.
Ms Mongwaketse had resigned from the MEPF in September 2015 although the
termination of service form was only received much later. She had since been paid the
resignation benefit to which she was entitled in terms of clause 37(1)(b) of the rules.
[12] On 10 November 2017 the Adjudicator issued her determination , finding as
follows. Ms Mongwaketse had not met the criteria for membership of the MEPF , had
not become a member, and was not bound by the Fund’s rules. Factually , all
contributions in respect of her purported membership had been met out of her salary.
The MEPF should thus refund to her the total amount of all contributions, including
those deemed to have been made by the Municipality, because the MEPF had not been
entitled to receive the contributio ns. The total amount of the contributions was
R856 489.94. However, to avoid undue enrichment to Ms Mongwaketse, the MEPF
should deduct the amount already paid to her.
[13] The Adjudicator filed the determination with the High Court of South Africa,
Gauteng Local Division, Johannesburg (High Court) in terms of section 30M of
the Act. The effect of such filing , in terms of section 30O, was that the determination
was deemed to be a civil judgment of the High Court, and execution could be levied
after the expir y of six weeks, provided no application in terms of section 30P was
lodged during that period.
The High Court proceedings
[14] According to the MEPF, it only became aware of the determination on
31 January 2018 after receiving a letter of demand from Ms Mongwaketse’s attorneys.
On 2 March 2018 the MEPF launched an application in the High Court. Part A of the
notice of motion was for urgent interim relief, which was resolved by agreement. Part B
sought relief by way of judicial review and by way of appeal in terms of section 30P.
The review relief was advanced in terms of the Promotion of Administrative
ROGERS AJ
7
Justice Act3 (PAJA), alternatively on the principle of legality . Taking into account the
supplementary founding papers delivered after pr oduction of the Adjudicator’s record ,
the grounds of review were these :
(a) Because Ms Mongwaketse contended in her grievance that she had not
become a member of the MEPF , and because the Adjudicator agreed, the
grievance was not a “complaint” by a “complainant” but simply a dispute
between private parties outside of the rules. On this basis, the Adjudicator
had no jurisdiction to determine the grievance.
(b) The following findings by the Adjudicator were irrational and the product
of errors of law: (i) that Ms Mongwaketse had not become a member of
the MEPF and that the rules did not apply to her; (ii) that the MEPF should
refund all contributions, seemingly on the basis of unjustified enrichment.
(c) The Adjudicator had failed to disclose to the MEPF, and to afford it an
opportunity to comment on , various emails sent by Ms Mongwaketse to
the Adjudicator in the period June to October 2017 .
(d) The Adjudicator had failed to put to the MEPF for its response the
proposition that Ms Mongwaketse had not become a member of the Fund
and that she was entitled to recover all contributions on the basis of
unjustified enrichment, in circumstances where these propositions were
not advanced by Ms Mongwaketse but raised by the Adjudicator of he r
own accord. This was a failure of natural justice.
(e) The Adjudicator decided that Ms Mongwaketse’s employment contract
did not require her to become a member of the MEPF and in fact
precluded her from doing so, yet the Adjudicator’s record showed that she
did not have the employment contract before her.
[15] In the section 30P appeal the MEPF contended that even if the determination was
not set aside on review, the following findings by the Adjudicator were wrong on the
merits:
3 3 of 2000.
ROGERS AJ
8
(a) that Ms Mongwaketse’s em ployment contract did not make it compulsory
for her to join the MEPF;
(b) that Ms Mongwaketse had not become a member of the MEPF and that
she had not become legally obliged to pay contributions; and
(c) that the MEPF was obliged to refund the 22% employe r contributions,
seemingly on the basis of unjustified enrichment.
[16] In August 2018, s imultaneously with filing her supplementary answering
affidavit in response to the MEPF’s supplementary founding papers, Ms Mongwaketse
delivered a notice of counter -application in which she sought the following orders:
(a) reviewing and setting aside the MEPF’s acceptance of her membership application,
alternatively declaring that she never became a member of the MEPF and was not bound
by its rules and (b) that the MEPF re fund all contributions with interest. The
supplementary answering affidavit also served as the founding affidavit in the
counter-application. It is clear from the affidavit that the counter -application was
conditional upon the MEPF’s application succeedi ng.4
[17] In its affidavit answering the counter -application, the MEPF contended that
Ms Mongwaketse had been entitled to become a member and that in any event the
MEPF’s decision to admit her to membership was not reviewable , because it did not
involve the exercise of public power. The MEPF also pleaded that Ms Mongwaketse
had waived her right to claim that she was excluded from membership, alternatively
that she was estopped from denying her membership.
[18] The MEPF opposed the refund claim on the basis that it had not been enriched,
that Ms Mongwaketse had not been impoverished, and that any impoverishment she
had suffered was because of her own inexcusable error and the Municipality’s conduct.
The MEPF also pleaded that her r efund claim had prescribed , because by November
4 Although the notice of counter -application was not framed conditionally, Ms Mongwaketse submitted in
paragraph 6.8 of the accompanying affidavit that “real and substantive justice” required the granting of the orders
sought in the counter -application “but only if the Court concludes that the Applicants are entitled to the relief
which they seek”.
ROGERS AJ
9
2014 at the latest she had become aware of the facts giving rise to the alleged claim.
The MEPF’s contention of non -enrichment and non -impoverishment was based on the
allegation that the 22% contributions ma de by employers were applied by the MEPF to
meet expenses of the Fund, such as premiums for risk benefits (death, disability and
funeral cover), shortfalls in withdrawal benefits, and overheads. The MEPF had applied
the 22% contributions in respect of Ms Mongwaketse’s purported membership in this
way, and she had enjoyed the benefits procured by such expenditure.
[19] The High Court dismissed the MEPF’s application. On the jurisdictional issue,
the High Court held that Ms Mongwaketse was a complainant as cont emplated in
paragraph (d) of the definition of “complainant” and that her grievance was a
“complaint” as defined. The High Court agreed with the Adjudicator that the
MEPF’s rules did not permit the Fund to admit Ms Mongwaketse as a member . As to
the reli ef granted by the Adjudicator, section 30E(1)(a) empowered the Adjudicator to
make any order which a court of law could make. This included an order to repay
contributions on the basis that they had not been owing. The MEPF’s defence of non -
enrichment was misconceived because the MEPF was never “on risk” in relation to
Ms Mongwaketse, given that she was not in truth a member. It followed that the
prima facie inference of enrichment and impoverishment, which arises when a payment
has been made without cau se, had not been disturbed. As to prescription,
Ms Mongwaketse had lodged her complaint with the Adjudicator within three years of
becoming aware that she was not eligible for membership , and in terms of
section 30H(3) the Adjudicator’s receipt of the complaint interrupted the running of
prescription. The High Court also rejected the MEPF’s other grounds of attack.
[20] The High Court dismissed Ms Mongwaketse’s counter -application, given that it
was conditional on the MEPF’s application succeeding. The MEPF was nevertheless
ordered to pay the costs of both applications, since the counter -application was an
“appropriate precaution, one which was intrinsically tied up with the application in
convention”.
ROGERS AJ
10
The Supreme Court of Appeal proceedings
[21] The High Court granted the MEPF leave to appeal to the Supreme Court of
Appeal. The majority in that Court (Wallis JA, with Molemela JA and Dlodlo JA
concurring) dismissed the appeal. The majority held that Ms Mongwaketse qualified
as a “complainant” in terms of both paragraphs (a) and (d) of the definition, and that her
grievance fitted the statutory definition of a “complaint”. She was not “a stranger to the
Fund bringing a civil law claim against it”, because as a fact she had been accepted as
a member of the MEPF and the latter was seeking to enforce its rules against her.
[22] The majority held that there were two legal routes to the conclusion that
Ms Mongwaketse never became a member of the MEPF. The first was by the simple
application of the ultra vires doctrine – a pension fund only has such powers as are
conferred on it by its rules . The second was to invoke the principles of contract law on
common mistake – Ms Mongwaketse had been unaware that the rules did not entitle her
to become a member, while the MEPF had been unaware that she was on a fixed -term
contract and thus ineligible for membership . Estoppel could not be invoked because it
would create an unlawful situation, and there was no relevant right which
Ms Mongwaketse could have waived.
[23] On the face of it, so the majority considered, all the elements for the
condictio indebiti were satisfied. The MEPF’s contention that Ms Mongwaketse had
not been impoverished was rejected, given that she never acquired the right to any
benefits under the MEPF’s rules. The MEPF had been enriched : to the extent that
Ms Mongwaketse’s 22% contributions had become part of the MEPF’s general funds
and used to pay expenses, the MEPF had used Ms Mongwaketse’s money to meet
ordinary expenses that would otherwise have had to be met from other contributions.
The MEPF was enriched by not having to use its “legitimate funds” to meet these
expenses. Like the High Court, the majority rejected the prescription defence on the
basis that th e complaint had been lodged within three years from Ms Mongwaketse
becoming aware of the relevant facts in November 2014.
ROGERS AJ
11
[24] In the first dissenting judgment , Ponnan JA considered that the Adjudicator had
failed to appreciate the true complexity of Ms Mongwaketse’s monetary claim. He
thought that any claim she had arising from impoverishment could only be one under
her employment contract, lying against the Municipality. In the absence of a valid
tripartite contract between employer, employee and the pensio n fund, the 22%
“contributions” which the Municipality paid to the MEPF could not be regarded as
having been paid on behalf of Ms Mongwaketse. However, and assuming that her claim
was otherwise good, the Adjudicator lacked jurisdiction because her grievan ce was not
of a kind contemplated in the definition of “complaint” and because it was difficult to
see how she could be accommodated by either paragraph (a) or (d) of the definition of
“complainant”.
[25] In a second dissenting judgment, Weiner AJA considered that in view of the
MEPF’s contention that Ms Mongwaketse had indeed become a member, she qualified
as a “complainant”. However, once the Adjudicator concluded that Ms Mongwaketse
had not become a member, her powers ceased, because the grievance could no longer
be accommodated by the definition of “complaint”.
In this Court
[26] The MEPF now seeks leave to appeal the Supreme Court of Appeal’s order. It
persists with the contentions it raised in the High Court, including the contention that
Ms Mongwaketse beca me a member of the Fund and that in any event waiver and
estoppel barred her from disputing her membership. In the alternative , and if
Ms Mongwaketse did not become a member , the Adjudicator did not have jurisdiction
to entertain her claim. The applicant contends in any event that the requirements for an
unjustified enrichment claim were not satisfied and that such a claim had prescribed.
[27] Ms Mongwaketse did not appear and was not legally represented at the hearings
in the Supreme Court of Appeal or in th is Court. In this Court she filed a notice to
abide. In the Supreme Court of Appeal , a member of the Bar appeared as an
amicus curiae at the Court’s request. In this Court, the Centre for Applied
ROGERS AJ
12
Legal Studies (CALS) applied and was granted leave to make written and oral
submissions as an amicus curiae. In its submissions, CALS argued that the
interpretation of the Act should be undertaken with due regard to the constitutional
rights at stake, including the right to social security and appropriate so cial assistance
(section 27(1)(c) of the Bill of Rights) and the right to have legal disputes decided in a
fair public hearing (section 34 of the Bill of Rights). CALS pointed out that if the
Adjudicator could not entertain complaints from persons wrongly admitted to
membership, the ir only recourse would be to the High Court, which they might not be
able to afford or where th ey would run the risk of an adverse costs order.
[28] CALS accepted that Ms Mongwaketse did not fall within paragraphs (a) to (c)
of the definition of “complainant” but argued that she fell within paragraph (d), giving
the words of that paragraph their ordinary meaning. Her grievance, furthermore,
contained assertions of the kind set out in the definition of “complaint”. Although the
proper interpretation of these definitions was the main focus of CALS’ submissions,
CALS argued that restitution followed as a matter of course from a finding that
Ms Mongwaketse never in law became a member of the MEPF. A complaint , it
contended, is not a pl eading, and complaints are generally formulated by lay people.
Technical arguments should be eschewed.
Jurisdiction
[29] The interpretation of the definitions of “complainant” and “complaint” in
section 1 of the Act raises questions of law. As will be appare nt when I address the
merits, these questions of law are arguable. This is shown by the fact that there were
two dissenting judgments in the Supreme Court of Appeal and by the fact that in
reaching its conclusion on these questions of law , the High Court in this case refused to
follow the contrary decision in Ramaphakela , which on its facts was on all fours with
the present matter .5 The proper interpretation of the definitions is a matter of general
5 Municipal Employees Pension Fund v Ramaphakela , unreported judgment of the High Court of South Africa,
Gauteng Local Division, Johannesburg, Case No 2016/40359 (13 December 2018) ( Ramaphakela ). In an earlier
judgment in the same case concerning interim relief, Municipal Employees Pension Fund v Ramaphakela ,
unreported judgment of the High Court of South Africa, South Gauteng Local Division, Johannesburg,
ROGERS AJ
13
public importance, since on this depends the Adjudicator ’s jurisdiction in all cases
where a pension fund has purported to admit to membership a person who did not
qualify for membership in terms of the fund’s rules. On this basis alone,
this Court’s jurisdiction is engaged in terms of section 167(3)(b)(ii), and leave to appeal
should be granted.
[30] This Court’s constitutional jurisdiction in terms of section 167(3)(b)(i) is also
engaged, because the case concerns the lawfulness and validity of the decision of a
functionary exercising public power .
The merits of the appeal
Did Ms Mongwaketse become a member of the MEPF?
[31] In order to reach the questions of statutory interpretation, we must first deal with
the MEPF’s argument that Ms Mongwaketse became a member of the MEPF. If that
conclusion were sustained either on a proper interpretation of the rules or through the
application of estoppel or waiver, Ms Mongwaketse would be bound by the rules and
she would already have received everything to which she was entitled in terms of
clause 37(1)(b) of the rules.
[32] Clause 24 of the MEPF’s rules deals with qualification for membership. Any
person who becomes an “ employee” on or after 1 January 1994 has an election to
become a member of the MEPF or of another specified fund, depending on the precise
time-frame within which the person became an “employee”. The word “ member” is
defined in clause 1 of the rules as “a person who is or becomes a member of the [MEPF]
in terms of [clause] 24”. Clause 1 defines “employee” as a person employed by a local
authority, excluding certain classes of employees. One excluded class is “a person who
is employed part-time or for a limited period”.
Case No 40359/2016 (22 August 2017), Unterhalter AJ considered that the MEPF’s contention that the
Adjudicator lacked jurisdiction was “at least prima facie arguable”.
ROGERS AJ
14
[33] The MEPF argued that although only persons falling within the definition of
“employee” have the right to elect to become member s of the MEPF, the management
committee has a discretion to allow other persons to become members. Reliance was
placed on clause 15(1)(a) which provides that the committee may “decide whether any
person is qualified to be a member of the [MEPF]”. This argument cannot be sustained.
A person can only become a member as defined if he or she becomes a member in terms
of clause 24. Clause 24 contains the qualifications entitling a person to elect to become
a member. There is no other rule qualifying a perso n to become a member.
Clause 15(1)(a) merely entitles the committee to decide whether a person meets the
qualifications set out in clause 24.
[34] Counsel submitted that since qualification in terms of clause 24 was unlikely to
be contentious, clause 15(1)(a) should not be so narrowly read. I disagree. Clause 24
contains no fewer than nine different sets of circumstances in which a person may elect
to become a member of the MEPF 6 and it is quite conceivable that uncertainty could
exist as to whether an applicant is covered by the specified circumstances. It would be
contrary to sound pension fund administration to read clause 15(1)(a) as conferring on
the committee an uncircumscribed power to admit unspecified classes of people to
membership.
[35] The next question is whether Ms Mongwaketse was in the excluded class of
persons employed “for a limited period”. The word “limited” in this context is used in
contradistinction to “indefinite”. The primary benefit which a pension fund such as the
MEPF aims to provide for its members is a retirement benefit in the form of a pension
or annuity. In the case of the MEPF, a retirement benefit becomes payable when the
member attains the age of 65 (the defined “pension age”) , though in certain defined
circumstances a r etirement benefit may become payable if the person retires within
ten years of reaching pension age.7 An indefinite employee has the prospect of reaching
6 See clauses 24(2)(a), 24(2)(b), 24(2)(c), 24(3), 24(8), 24(12), 24(17), 24(18) and 24(21) of the MEPF’s rules.
7 See clause s 32 and 33 of the MEPF’s rules.
ROGERS AJ
15
his or her pension age. A person employed for a limited period would generally not
have this prospec t. In regard to ill-health benefits and benefits following discharge
owing to reorganisation , a distinction is drawn between members who have at least
ten years’ pensionable service and those with shorter service. Again, a person employed
for a limited p eriod would generally have no prospect of qualifying for the superior
benefits payable to members with at least ten years’ service. In short, a pension fund
such as the MEPF is unlikely to be a suitable vehicle for persons employed for a limited
period, and it is entirely understandable that they would be excluded from membership .
[36] Ms Mongwaketse was employed for a fixed term of five years. This is a
“limited period”. Her contract contained the renewal provision I summarised earlier.
Did this take her o utside the category of persons employed “for a limited period”? The
Supreme Court of Appeal majority held that the renewal term was aimed at
circumventing section 54A(4)(a) of the Local Government: Municipal Systems Act8
(Systems Act) and could thus be di sregarded, as it was ineffective in terms of that
Court’s judgment in Mawonga.9 This basis for disposing of the renewal term was
incorrect. Mawonga dealt with the employment contracts of municipal managers. In
terms of section 57(6)(a) such a contract must be for a fixed term not exceeding five
years; and in terms of section 57(6)(c) the contract must stipulate the terms of the
renewal of the employment contract . In Mawonga, the Supreme Court of Appeal
interpreted section 57(6) to mean that th e total duration of the contract, including any
renewal, could not exceed five years, whereafter the position had to be advertised
nationally in terms of section 54A(4)(a).10 Whether that interpretation is correct does
not arise in this case , because Ms Mongwaketse was not employed as a municipal
manager. Although she was a manager directly accountable to the Municipality’s
8 32 of 2000. Section 54A was among various provisions inserted into the Systems Act by the Local Government:
Municipal Systems Amendment Act 7 of 2011. Act 7 of 2011 was declared invalid by this Court in South African
Municipal Workers ’ Union v Minister of Co-Operative Governance and Traditional Affairs [2017] ZACC 7; 2017
(5) BCLR 641 (CC) but the declaration was only prospective and was suspended for 24 months. The suspensi on
came to an end on 8 March 2019 without any remedial steps having been taken: see Member of the Executive
Council for Cooperative Governance and Traditional Affairs, KwaZulu -Natal v Nkandla Local Municipality
[2021] ZACC 46 at paras 18-9.
9 Mawonga v Walter Sisulu Local Municipality [2020] ZASCA 125; 2021 (1) SA 377 (SCA) .
10 Id at para 26.
ROGERS AJ
16
municipal manager, the Systems Act does not set a limit of five years on such managers’
employment contract s.
[37] I agree, however, with the High Court’s rejection of the MEPF’s reliance on the
renewal clause. The High Court said that a renewal was not a given; and that even if a
renewal took place, there was no implication that the renewal clause would be part of
the renewed contract. I express no opinion on the second leg of this reasoning, but I
agree with the first leg. The simple fact of the matter is that in February 2012, when
Ms Mongwaketse purported to become a member of the MEPF, she was only employed
for a five-year term. Whether there would be a renewal depended not only on her work
performance but also on whether she wanted to continue working for the Municipality.
That is something that would only become known towards the end of the five-year term.
If the contract was rene wed for a fixed term, she would then be employed afresh for a
new “limited period”.
[38] Since Ms Mongwaketse was not eligible for membership of the MEPF, the latter
did not have the power to admit her as a member and her purported membership was a
nullity, as the Supreme Court of Appeal correctly held, citing Abrahamse .11 Counsel
for the MEPF submitted that Abrahamse should not be followed to the extent that it
suggests that any deviation from a pension fund’s rules leads to invalidity and nullity.
Such an approach was said to be “not consonant with our constitutional jurisprudence”,
though the jurisprudence in question was not mentioned. I disagree with the
submission. Of course, whether a particular act is in fact beyond the powers of a pension
fund calls for a characterisation of the act and a proper interpretation of the rules, but
this case presents no difficulties in that regard since qualification for membership is a
fundamental component of pension fund governance.
[39] The application of the ultra vire s doctrine to pension funds is consistent with the
constitutional principle of legality. Section 13 of the Act decrees that a pension
11 Abrahamse v Connock’s Pension Fund 1963 (2) SA 76 (W) at 78D -E.
ROGERS AJ
17
fund’s rules shall be binding inter alia on the pension fund. Section 5(1)(a) states that
the effect of the registration of a pension fund such as the MEPF is that it becomes a
body corporate capable of suing and being sued in its corporate name and of doing all
such things “as may be necessary for or incidental to the exercise of its powers or the
performance of its functi ons in terms of its rules”. Self -evidently, the admission to
membership of a person who is by virtue of the rules ineligible for membership is not
an act “necessary for or incidental to” the exercise by the pension fund of its powers or
the performance of its functions in terms of the rules.
[40] It is well-established that reliance on estoppel is impermissible where its effect
would be to give indirect validity to conduct by a corporate body which is beyond the
body’s power to perform. 12 The principle applies here. And I agree with the Supreme
Court of Appeal that there was no relevant right that Ms Mongwaketse could waive.
The waiver argument was just estoppel by a different name.
The interpretation of “complainant” and “complaint”
[41] On the basis, then, that Ms Mongwaketse never became a member of the MEPF,
did the Adjudicator have jurisdiction to entertain her grievance? In terms of
Chapter VA of the Act, the Adjudicator’s function is to investigate and dispose of
“complaints”.13 The following definitio ns of “complainant” and “complaint” appear in
section 1 of the Act:
“‘complainant’ means—
(a) any person who is, or claims to be—
(i) a member or former member, of a fund;
(ii) a beneficiary or former beneficiary of a fund;
(iii) an employer who participates in a fund;
12 Strydom v Die Land en Landbou Bank van Suid -Afrika 1972 (1) SA 801 (A) at 815A-816B; City of Tshwane
Metropolitan Municipality v RPM Bricks Proprietary Ltd [2007] ZASCA 28; 2008 (3) SA 1 (SCA) at para 13.
13 See sections 30D and 30E of the Act.
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18
(iv) a spouse or a former spouse of a member or former member, of a fund;
(b) any group of persons referred to in paragraph (a)(i), (ii), (iii) or (iv);
(c) a board of a fund or member thereof; or
(d) any person who has an interest in a complaint;
‘complaint’ means a complaint of a complainant relating to the administration of the
fund, the investment of its funds or the interpretation and application of its rules, and
alleging—
(a) that a decision of the fund or any person purportedly taken in terms of the rules
was in excess of the powers of that fund or person, or an improper exercise of
its powers;
(b) that the complainant has sustained or may sustain prejudice in consequence of
the maladministration of the fund by the fund or any person, whether by act or
omission;
(c) that a dispute of fact or law has arisen in relation to a fund between the fund or
any person and the complainant; or
(d) that an employer who participates in a fund has not fulfilled its duties in terms
of the rules of the fund;
but shall not include a complaint which does not relate to a specific complainant.”
[42] The correct approach to statutory interpretation was summarised by this Court in
Cool Ideas14 as follows:
“A fundamental tenet of statutory interpretation is that the words in a statute must be
given their ordinary grammatical meaning, unless to do so would result in an absurdity.
There are three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted
purposively;
(b) the relevant statutory provision must be properly
contextualised; and
14 Cool Ideas 1186 CC v Hubbard [2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC)
(Cool Ideas).
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19
(c) all statutes must be construed consistently with the
Constitution, that is, where reasonably possible, legislative
provisions ought to b e interpreted to preserve their
constitutional validity. This proviso to the general principle is
closely related to the purposive approach referred to in (a).”15
[43] Paragraphs (a) to (c) of the definition of “complainant” do not present any
difficulty. And I disagree with the view expressed in the majority judgment in the
Supreme Court of Appeal that Ms Mongwaketse could be accommodated in
paragraph (a)(i) of the definition. The word “member” is defined in section 1 of the Act
as meaning any “member or former member” of the association by which such fund has
been established “but does not include any person who has received all the benefits
which may be due to that person from the fund and whose membership has thereafter
been terminated in accordance with the rules of the fund”. A person cannot be a “former
member” without having once been a “member”. Ms Mongwaketse was never in law a
member and did not claim in her grievance to have been one. On the contrary, she
alleged that she was precluded by the rules from being a m ember.
[44] In regard to paragraph (d) of the definition of “complainant”, the MEPF’s
submission is that this category refers to a person who has an interest in an existing
complaint made by a person in paragraph (a), (b) or (c) of the definition. The main
arguments advanced in support of this submission were the following:
(a) Unlike paragraphs (a) to (c), the definition in paragraph (d) incorporates
a cross -reference to a “complaint”. A “complaint” is in turn defined as
meaning a complaint “of a complainant”. To avoid irresoluble circularity,
the phrase “of a complainant” has to be confined to a person falling within
paragraphs (a) to (c) of the “complainant” definition.
(b) Persons in paragraphs (a) to (c) of the definition of “complainant” would
self-evidently have an interest in the complaint. Unless the meaning of
15 Id at para 28.
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20
paragraph (d) were confined in the way proposed by the MEPF,
paragraphs (a) to (c) would be superfluous. In other words, unless so
confined, paragraph (d) on its own would cover every conceiv able class
of complainant, including those particularised in paragraphs (a) to (c).
(c) Paragraphs (a) to (c) of the definition of “complainant”, read with the
requirement in the definition of “complaint” that the grievance must relate
“to a specific compl ainant”, reveal a legislative intent to circumscribe
with precision the class of persons who may invoke the Adjudicator’s
jurisdiction. The scheme would be defeated by giving paragraph (d)
unqualified scope.
(d) The interpretation adopted by the majority in the Supreme Court of
Appeal effectively gives the Adjudicator coextensive powers with civil
courts to determine any grievance between a person and a pension fund.
[45] CALS, on the other hand, submits that paragraph (d) of the definition of
“complainant” adds an additional class of persons who may initiate a complaint, namely
any person who has an interest in a grievance of the substantive nature contained in the
definition of “complaint”. In support of this submission, CALS makes the following
points:
(a) The expression “any person” in paragraph (d) is wide and unqualified.
(b) Paragraph (d) requires only an interest in a complaint, not an interest in
an “existing” complaint.
(c) Accordingly, the ordinary meaning of paragraph (d)’s language supports
the wid e meaning adopted by the High Court and Supreme Court
of Appeal majority.
(d) The wide meaning is also preferable on a purposive interpretation and
with due regard to sections 27(1)(c) and 34 of the Bill of Rights.
(e) Section 30G addresses the case of a p erson who has an interest in an
existing complaint, so it is unnecessary to harness paragraph (d) to
achieve the same purpose. Section 30G provides that the parties to a
complaint shall include, in addition to the “complainant” and the fund or
ROGERS AJ
21
person against whom the “complaint” is directed, “any person who has
applied to the Adjudicator to be made a party and who has a sufficient
interest in the matter to be made a party to the complaint”, as well as “any
other person whom the Adjudicator believes has a s ufficient interest in
the matter to be made a party to the complaint”.
(f) The potential circularity brought about by the words “of a complainant”
in the “complaint” definition can be avoided, as the High Court held, by
omitting these words when reading th e definition of “complaint” into the
wording of paragraph (d) of the “complainant” definition.
[46] Both lines of argument have their merits, but on balance I have concluded that
the wide interpretation of paragraph (d) of the “complainant” definition is to be
preferred. It may be true, as the MEPF argues, that the wide meaning of paragraph (d)
would render paragraphs (a) to (c) superfluous (unless one supposes that paragraphs (a)
to (c) only cover persons of the kind in question who do not actually have an in terest in
the complaint, which would be absurd). But tautology in legislation is not unknown;
the legislature may use wide and overlapping language to ensure that a field is
comprehensively covered, and the presumption against rendering words in a statute
superfluous must not be applied to create differences of meaning where such differences
were not intended by the lawgiver.16 Paragraphs (a) to (c) would still serve the purpose
of identifying the obvious classes of persons who would have an interest in pu rsuing a
“complaint”, making it unnecessary in these cases to engage in a separate inquiry as to
whether the person indeed has an “interest” in the complaint.
[47] If the meaning of paragraph (d) were the one advanced by the MEPF, the
lawmaker could easily hav e made this clear by adding, to the words “any person who
has an interest in a complaint”, the words “lodged by a person referred to in
paragraph (a), (b) or (c)”. The inclusion of the words “of a complainant” in the
16 Sekretaris van Binnelandse Inkomste v Lourens Erasmus (E iendoms) Bpk 1966 (4) SA 434 (A) at 441F-442D;
Secretary for Inland Revenue v Somers Vine 1968 (2) SA 138 (A) at 156B -G; and Commissioner for Inland
Revenue v Shell Southern Africa Pension Fund 1984 (1) SA 672 (A) at 678C-F.
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22
“complaint” definition is too flimsy a basis to impose such a significant limitation on
the wide wording of paragraph (d). After all, the words “of a complainant” in the
“complaint” definition are themselves unqualified – the lawmaker did not say “of a
complainant referred to in paragraphs (a), (b) or (c) of the definition of ‘complaint’”.
On the face of it, the words “of a complainant” refer to a complaint lodged by any person
listed in the “complainant” definition.
[48] The main purpose of the “complaint” definition is to identify the substanti ve
nature of the grievances covered by the defined term. The inclusion of the words “of a
complainant” in the “complaint” definition is strictly unnecessary, because
section 30A(1) in any event states that only a “complainant” may lodge a “complaint”
with the Adjudicator. If one were to read the full definition of “complaint” into the
language of section 30A(1), the subsection would empower a “complainant” to lodge
“a complaint of a complainant”.
[49] This indicates, in my view, that in context the words “of a complainant” in the
“complaint” definition merely acknowledge what is to follow in Chapter VA, namely
that a grievance of the substantive nature identified in the definition of “complaint” may
be lodged only by a person contemplated in the “complaina nt” definition. In other
words, as a precondition for being lodged, the grievance must be of the substantive
nature identified in the “complaint” definition; and once it has been lodged by a
“complainant”, it becomes a complaint “of a complainant” , namely a complaint of the
complainant who has lodged it. In determining whether a person has an interest in a
“complaint” for purposes of paragraph (d) of the “complainant” definition, it is the
substantive component of the “complaint” definition that is relevant, not the additional
words “of a complainant” which, as I have said, simply recognise that only a defined
“complainant” may lodge with the Adjudicator a grievance meeting the substantive
component of the “complaint” definition.
[50] I also agree with C ALS’ submission that section 30G tells against the qualified
interpretation advanced by the MEPF. That section grants the widest powers to the
ROGERS AJ
23
Adjudicator to admit, in complaint proceedings, a person having an interest in a
complaint lodged by someone els e. Section 30G does not identify such joined parties
as additional “complainants”. On the narrow interpretation advanced by the MEPF, its
counsel battled to give practical examples where a person would need to become a
“complainant” in terms of paragraph (d) of the definition, and he conceded that the
absence of plausible cases covered by paragraph (d) would militate against the MEPF’s
case. In reply, he suggested that paragraph (d) might cover the case of persons whose
relationship with the pension fund , unlike the persons in paragraphs (a) to (c), was
indirect, such as a beneficiary in the estate of a deceased former member, or the partner
of a member.17 However, where the member or former member in such situations has
already lodged a complaint, the in direct party could become a party to the complaint
proceedings in terms of section 30G. Where the member or former member has not
lodged a complaint, counsel’s example would not solve the problem created by his
client’s own argument, namely that paragraph (d) only covers the case of a person who
has an interest in an existing complaint. These examples actually show why
paragraph (d) should be given a wide meaning, since otherwise the executor of the
deceased estate of a member or former member who died be fore lodging a complaint,
or a beneficiary in the estate of such a deceased member or former member, would be
unable to pursue a grievance with the Adjudicator.
[51] There is, however, one important additional consideration which demands
attention. If paragraph (d) of the “complainant” definition is given the wide meaning,
the “complainant” definition does no work in limiting the scope of matters which the
Adjudicator may determine. Any limitation on her jurisdiction would need to be located
in the “complaint ” definition. If the “complaint” definition is itself practically
unlimited, the Adjudicator would, as the MEPF argues, become an alternative to the
civil courts in all disputes involving pension funds. Contractual disputes might arise
between a pension fund and its service providers , such as auditors, lawyers and IT
providers; or delictual disputes might arise where a member of the public suffers injury
17 It may be noted that the spouse or former spouse of a member or former member is covered by paragraph (a)(iv)
of the “complainant” definition.
ROGERS AJ
24
at premises, such as a shopping mall, owned by the pension fund. It might be thought
implausible that the lawmaker intended the Adjudicator to have such a wide jurisdiction.
[52] The “complaint” definition requires, as a first component, that the grievance
should relate to “the administration of a fund”, “the investment of its funds” or “the
interpretation and application of its rules”. As a second component, the grievance must
make allegations of the kind described in one or more of paragraphs (a) to (d) of the
“complaint” definition. As to the first component, it is the phrase “the administration
of a fund ” which potentially gives rise to implausible width. If administration were
understood in its widest sense, most disputes would then also comply with the second
component by virtue of paragraph (c) of the definition, which requires only an
allegation that “a dispute of fact or law” has arisen between the complainant and the
pension fund or other person.
[53] In the present case, one could say that the first component was satisfied because
there was a dispute about the interpretation and application of the MEPF’s rules, namely
whether in terms of the rules Ms Mongwaketse was entitled to be a member. However,
the real dispute was whether she was entitled to the return of all her contributions
because she never in law became a member. Even if the MEPF had accept ed that
Ms Mongwaketse never qualified for membership, that dispute would have remained.
On the basis that Ms Mongwaketse was not a member, her grievance did not concern
the interpretation and application of the MEPF’s rules. It also did not relate to th e
investment of the MEPF’s funds, except in the most indirect way. The question is
whether the grievance concerned the “administration” of the MEPF.
[54] The two dissenting judges in the Supreme Court of Appeal considered that the
receipt and retention by a p ension fund of monies paid in error by a person who did not
qualify for membership did not relate to the “administration” of the pension fund. That
takes too narrow a view of “administration”. We know from paragraphs (a) and (b) of
the “complaint” defini tion, that a grievance complying with the first component of the
definition may nevertheless be a decision in excess of a pension fund’s powers or an act
ROGERS AJ
25
of maladministration. A grievance concerning the “administration” of a pension fund
should thus be able to accommodate a grievance about ultra vires conduct or concerning
maladministration. In context, “administration” does not have to be lawful
administration.
[55] Admitting people to membership and receiving contributions in respect of their
membership with a view to providing them with retirement benefits is the core activity
of a pension fund. Doing these things is at the heart of pension fund “administration”.
This type of administration can go awry and be done unlawfully or badly, in which case
one is dealing with a complaint relating to the fund’s administration and alleging either
ultra vires conduct or maladministration. The admission of Ms Mongwaketse to
membership and the receipt of her contributions were acts of administration of the
MEPF which were ultra vires . It is their de facto character, not their legality, which
brings them within the scope of “administration”.
[56] It is unnecessary, for purposes of this judgment, to decide where the line is to be
drawn in relation to “administration” of a fund for purposes of the “complaint”
definition. That expression would certainly be capable of limitation so as to exclude
the ordinary contractual and delictual disputes I mentioned earlier.
The refund determinatio n – the review challenge
[57] In terms of section 30E(1), the Adjudicator, having correctly found that
Ms Mongwaketse did not become a member of the MEPF, was entitled to make an order
which a court of law could make. In principle, a court of law could have or dered the
MEPF to repay Ms Mongwaketse her purported contributions, provided the
requirements for a claim of unjustified enrichment were present. The MEPF challenges
the Adjudicator’s determination in this respect both by way of review and by way of a
section 30P appeal. The review challenge is essentially one of irrationality based on
the material before the Adjudicator. Under the present heading, I shall deal with the
review challenge, deferring for later consideration the section 30P challenge, which is
a merits inquiry based on the material before the High Court.
ROGERS AJ
26
[58] It is convenient, under this heading, to deal first with the MEPF’s contention
that the Adjudicator acted in a procedurally unfair way by finding, of her own accord,
that Ms Mongwaketse never became a member of the MEPF and that she was entitled
to a refund on the basis of unjustified enrichment. The MEPF complains that the
Adjudicator did not put these propositions to the MEPF for comment before issuing her
determination. This criticism m ust be rejected. The terms of Ms Mongwaketse’s
complaint as lodged with the Adjudicator were clear. I have quoted above the
concluding paragraphs of the complaint. Earlier in her complaint, she referred to and
attached the Municipality’s letter to the M EPF dated 25 September 2015 in which the
Municipality stated that she should not have joined the MEPF and asked for a refund of
all contributions. She referred to a meeting held on 10 February 2016 where a
representative of the Municipality asked the MEPF ’s representatives when they would
be repaying Ms Mongwaketse her money, because her joining the MEPF had been an
error. According to her, the Municipality’s representative referred to page 5 of the rules
(the page containing the definition of “employee”) . In response, so Ms Mongwaketse
stated in her complaint, the MEPF’s legal adviser said that she should never have
become a member of the pension fund and that all the contributions were hers; the
matter was straightforward and he would take it to the trustees on that basis. The MEPF
subsequently failed to revert, leading to the lodging of the complaint.
[59] The MEPF thus knew, at an early stage, that Ms Mongwaketse’s case was that
she was precluded by the rules from becoming a member, that she should not ha ve been
admitted as a member, and that on this basis she should get all her contributions back,
including the 22% contribution supposedly paid by the employer. In the proceedings
before the Adjudicator, the MEPF chose not to take issue with Ms Mongwaketse’s
factual account. It raised one defence, and one defence only, in its letter of
10 October 2017, namely that Ms Mongwaketse had indeed become a member, that her
only entitlement upon withdrawal from the Fund was in terms of clause 37(1)(b) of
the rules (that is, her own contributions), and that she had received the amount owing
to her under that clause.
ROGERS AJ
27
[60] Once the Adjudicator correctly rejected that defence, the only question was
whether she could rationally, on the material before her, conclude that
Ms Mongwaketse should be repaid her purported contributions. In terms of the
conventional requirements of the condictio indebiti , Ms Mongwaketse could not
recover the money if the error in payment was a result of inexcusable slackness.
Although the burden of proving an absence of inexcusable slackness may have rested
on her,18 the MEPF did not contend before the Adjudicator that Ms Mongwaketse had
been inexcusably slack. Such a contention may have been difficult to sustain in view
of the fact that (a) the Mun icipality itself mistakenly thought that Ms Mongwaketse
could become a member of the MEPF; and (b) the MEPF to this day contends that she
could indeed become a member. Ms Mongwaketse as a layperson cannot be criticised
for not having become acquainted wit h the rules before November 2014. She received
no clear response from the MEPF as to its position, and she asked her employer to stop
deducting contributions.
[61] That Ms Mongwaketse was impoverished by the undue payments is obvious. If
the payments had not been made, all the contributions made in respect of her purported
membership – the full 29.5% – would have been paid to her as part of her remuneration.
I do not share the difficulty expressed by Ponnan JA in treating Ms Mongwaketse rather
than the Munic ipality as the party which was impoverished by the payment of
contributions. It is so that there was no valid tripartite contract in terms of which the
Municipality would pay contributions to the MEPF for Ms Mongwaketse’s lawful
membership of the Fund. N evertheless, as between the Municipality and
Ms Mongwaketse, it was always understood that everything that was being paid to the
MEPF as purported contributions were deductions made with her authority from her
salary and paid to the MEPF for her benefit. The Municipality in law owed
Ms Mongwaketse her full salary, and she authorised the Municipality to pay part of it
to the MEPF. If A owes money to B, and B instructs A to discharge the debt by paying
18 Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202 (A ) at 224H-225B.
ROGERS AJ
28
the money to C in discharge of a debt which B mistakenl y believes she owes to C, it
is B (Ms Mongwaketse in our case) and not A (the Municipality) who can pursue the
condictio indebiti against C (the MEPF).19
[62] As to whether the MEPF was enriched, enrichment is presumed when a person
receives money sine causa (without cause) , the onus resting on the recipient to show
that it was in fact not enriched at all or only partially enriched. 20 The MEPF did not
advance any such defence before the Adjudicator.
[63] I thus conclude that the Adjudicator’s order against the MEP F for repayment of
all contributions withstands the attack made on it by way of judicial review.
The refund claim – the section 30P appeal
[64] It has been common cause throughout this litigation that a section 30P
application, which for convenience I have st yled an “appeal”, is a rehearing on the
merits in which additional evidence can be adduced. If the MEPF had not instituted
review proceedings, and had simply challenged the Adjudicator’s determination on the
merits by way of section 30P, it would by now h ave failed on the merits in the two
courts below. A further appeal to this Court on the merits is aimed at reversing factual
findings made by the courts below, in particular the finding that the MEPF was
enriched. The legal principles governing the condictio indebiti are not in issue. It is the
application of those principles to the facts of this case which is the focus of the MEPF’s
attempt to pursue a third hearing on the section 30P application. A contention that a
lower court’s factual findings were wrong does not engage this Court’s constitutional
19 See Bowman, De Wet and Du Plessis N .N.O. v Fidelity Bank Ltd [1996] ZASCA 141; 1997 (2) SA 35 (SCA)
at 42H-43D: “[T]he person who is entitled to bring the action ‘is he who is considered in law to have made the
payment’”; Kudu Granite Operations (Pty) Ltd v Caterna Ltd [2003] ZASCA 64; 2003 (5) SA 1 93 (SCA )
(Kudu Granite ) at para 20. This is the flip-side of the well-known principle that if A seeks to discharge a purported
but non -existent debt to B by paying C on B ’s instructions, A’s condictio indebiti lies against B as the person to
whom the payment is deemed to have been made, and not against C: Minister van Justisie v Jaffer 1995 (1) SA
273 (A) at 280D-H.
20 African Diamond Exporters (Pty) Ltd v Barclays Bank International Ltd 1978 (3) SA 699 (A) at 713G -H;
First National Bank of Southern Africa Ltd v Perry N .O. [2001] ZASCA 37; 2001 (3) SA 960 (SCA) at para 31;
and Kudu Granite above n 19 at para 21.
ROGERS AJ
29
or general jurisdiction, 21 nor does a contention that a lower court misapplied an
established test to the facts of the case. 22 This conclusion is unaffected, in my view, by
the circumstance that the propose d appe al against the Supreme Court of Appeal’s
dismissal of the section 30P part of the case has been coupled with an appeal on matters
concerning the Adjudicator’s jurisdiction and the validity of her determination.
[65] I thus consider that we do not have ju risdiction to reassess whether, based on the
facts advanced in the section 30P application before the High Court, the Supreme Court
of Appeal erred in finding that Ms Mongwaketse was entitled to the refund ordered by
the Adjudicator. If I had reached that question, it is doubtful that the MEPF’s
allegations in the High Court were sufficient to discharge the burden of proving its
non-enrichment. As the Supreme Court of Appeal majority pointed out, the use of
Ms Mongwaketse’s money to meet some fraction of the MEPF’s general overheads
enriched the MEPF (and indirectly the members for whose benefit the MEPF exists),
because, but for such use of Ms Mongwaketse’s money, that fraction of the expenditure
would have had to be met from the lawful contributions made to the MEPF. The MEPF
did not allege that its general overheads were increased by having Ms Mongwaketse on
its books as a purported member (one person among many thousands). As regards risk
benefits, the MEPF did not quantify the premiums it paid insure rs for risk benefits in
respect of Ms Mongwaketse’s purported membership, nor did the MEPF state that the
insurers would not refund those premiums upon being told that in law they were never
on risk in relation to Ms Mongwaketse. To the extent that her co ntributions were used
to fund what the MEPF regarded as her withdrawal benefit in terms of clause 37(1)(b)
of the rules, such non-enrichment is accommodated by the deductions which the MEPF
can make when repaying Ms Mongwaketse the rest of her purported contributions. And
as I understand paragraph 60 of the majority judgment in the Supreme Court of Appeal,
the MEPF is entitled to deduct not only the net amount it has already paid directly to
21 Mbatha v University of Zululand [2013] ZACC 43; (2014) 35 ILJ 349 (CC); 2014 (2) BCLR 123 (CC) at
paras 197 and 216-7 and S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 15.
22 See General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 (8) B CLR 919 (CC) at para 59
and Booysen v Minister of Safety and Security [2018] ZACC 18; 2018 (6) SA 1 (CC); 2018 (9) BCLR 1029 (CC)
at para 59.
ROGERS AJ
30
Ms Mongwaketse, but also the tax component which it paid to the
South African Revenue Service.
Prescription
[66] Both the High Court and the Supreme Court of Appeal considered and rejected
the MEPF’s prescription defence. It seems to me that a discussion of prescription was
unnecessary. The MEPF did not raise prescriptio n in the proceedings before the
Adjudicator nor as a component of its review and section 30P applications. It pleaded
prescription only in answer to Ms Mongwaketse’s counter -application. The
counter- application only became relevant if the Adjudicator’s a ward was set aside
pursuant to the MEPF’s application in convention. Because the application in
convention failed, the counter -application fell away, and with it the need to address
prescription.
Natural justice and the correspondence of June to October 2017
[67] The final topic I must address is the MEPF’s contention that the Adjudicator’s
determination is vitiated, because certain emails written by Ms Mongwaketse to the
Adjudicator in the period June to October 2017 were not disclosed to the MEPF for
comment. This is said to have violated the principle of natural justice requir ing
decision-makers to “hear the other side” ( audi alteram partem ) before reaching a
decision. In my opinion, this was not an irregularity resulting in a failure of natural
justice.
[68] Taking the communications in sequence, in her email of 21 June 2017
Ms Mongwaketse supplied the Adjudicator with bank statements to show the
contributions she had made. The Municipality had already provided the Adjudicator
with details of the contributio ns paid, and quantum has never been in issue. The
Adjudicator’s determination was based on the figures supplied by the Municipality.
[69] On 3 August 2017, Ms Mongwaketse forwarded to the Adjudicator a response
she had sent to the MEPF on the same day in reac tion to a letter from the MEPF dated
ROGERS AJ
31
26 June 2017. In its letter the MEPF had apparently explained the payment to her earlier
that month as a benefit arising from her resignation in September 2015. In her reply to
the MEPF, she said that the wording was incorrect because she had not resigned in
September 2015 – she had remained employed until her fixed -term contract came to an
end. She added , “I maintain that the fund still has a portion of my 100 percent
contribution”. Ms Mongwaketse forwarded this rep ly to the Adjudicator without
further comment. The MEPF had Ms Mongwaketse’s email of 3 August when it
submitted its response to the Adjudicator on 10 October 2017. Furthermore, the email
of 3 August said nothing new. The complaint lodged with the Adjud icator, and prior
correspondence, demonstrated that Ms Mongwaketse’s essential grievance was that she
had paid all the contributions and wanted all of them back.
[70] Ms Mongwaketse’s emails of 10 October 2017 were a series of staccato
comments on the MEPF’s r esponse of that date, evidencing her anger and frustration at
the MEPF’s stance. Her comment that the rules excluded her repeated what she had
said in the original complaint, as was her statement that she wanted all her monies back.
Other comments were e ither irrelevant to the merits of the complaint or were a repeat
of things she had already said.
Conclusion
[71] For these reasons, the appeal must be dismissed. Since Ms Mongwaketse abided
this Court’s decision, there will be no order as to costs.
Order
[72] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed.
For the Applicants:
For the Respondent:
For the Amicus Curiae:
J P V McNally SC instructed by
Webber Wentzel
Schöltz Attorneys
S Khumalo SC, K Magan and L Mbatha
instructed by Centre for Applied Legal
Studies