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[2022] ZAFSHC 285
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Rousseau and Others v Government Employees Pension Fund and Others (2938/2021) [2022] ZAFSHC 285 (21 October 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number:
2938/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
SELLMURRY
ROUSSEAU
1
st
Applicant
FRANCOIS
JOHN DOMBURG
2
nd
Applicant
JUANDRE
ADRIAN DOMBURG
3
rd
Applicant
and
GOVERNMENT
EMPLOYEES PENSION FUND
1
st
Respondent
MINISTER
OF DEFENCE
2
nd
Respondent
GERTIE
MARY DOMBURG
3
rd
Respondent
MAROUISE
WILNET JONICA DOMBURG
4
th
Respondent
GERALDINE
SAMANTHA DOMBURG
5
th
Respondent
ANDREA
JACQUILINE DOMBURG
6
th
Respondent
GOVERNMENT
PENSION -
ADMINISTRATION
AGENCY
7
th
Respondent
SHERIFF
OF BLOEMFONTEIN WEST
8th
Respondent
CORAM:
REINDERS
ADJP et CHESIWE J
JUDGMENT
BY:
REINDERS
ADJP
HEARD
ON
: 25
APRIL 2022
DELIVERED
ON
: 21
OCTOBER 2022
[1]
At the time of his demise on 11 January 2019 Mr WAF Domburg (the
deceased) was in
the employ of the South African National Defence
Force (SANDF), enjoying the benefits of a pension fund held with the
first respondent,
the Government Employees Pension Fund (GEPF).
At the heart of this application lies the award of the deceased’s
pension
gratuity (interchangeably referred to as the pension
benefits/pension gratuity) pursuant to his passing.
[2]
The first applicant is the deceased’s life partner. The two
biological sons
born from this union, are the second and third
applicants respectively. Although the second applicant turned 18
years at the time
of launching the application, reference to the
second and third respondents will be “the minor children”.
The
third respondent is the deceased’s ex-wife who received 50%
of his pension fund benefit when the parties divorced in 2013.
The
fourth, fifth and sixth respondents are the deceased’s major
children born from the marriage between the deceased and
the third
respondent (the major children). The Government Pension
Administration Agency (GPAA) is the seventh respondent, whilst
the
Sher
r
iff of Bloemfontein West is the eight
respondent.
[3]
The gist of the relief claimed by applicants is orders directed at
the first and seventh
respondents to have the decision made to award
a portion of the pension gratuity to the major children, reviewed and
set aside.
Only the first and seventh respondents (collectively
referred to as the respondents) opposed the relief claimed (in as far
as it
relates to them).
[4]
For sake of completeness the relief claimed in the applicants’
amended notice
of motion is quoted verbatim:
‘
1.
That, insofar as condonation is required in terms of Section 7(1) of
the Promotion of Administration
Justice Act 3 of 2000 for the late
institution of the review, that such delay be condoned;
2.
That exceptional circumstances exist for the matter to be heard and
that the Applicants be
exempted from exhausting any further internal
remedies which may be applicable;
3.
That the Government Pension Administration Agency be joined as
Seventh respondent in this
application;
4.
That the Sheriff of Bloemfontein West be joined as eighth respondent
in this application;
5.
That the decision to overrule the nominations of Willem Andries
Domburg (Identity Number:
[....]), which nominations are dated 5 July
2010 with document number [....], in terms of pension benefits
payable under pension
number [....], be reviewed and set aside;
6.
That the decision to consider the Fourth, Fifth and Sixth Respondents
as beneficiaries of
the benefits of the deceased’s pension
interest be reviewed and set aside.
7.
That the decision to award any portion of the deceased’s
pension interest to the Fourth
Respondent, Fifth Respondent and Sixth
Respondent be reviewed and set aside.
8.
That the decision to stand by the such overruling, as communicated
the First Applicant on
1 April 2021 be reviewed and set aside;
9.
That the decision to pay any monies to the Fourth, Fifth and Sixth
Respondents be substituted
and that the First Respondent and/or
Seventh Respondent is ordered to pay to the Applicants all benefits
payable to them in terms
of the deceased’s nomination dated 5
July 2010 according to document number [....] under pension number
[....] within 30
days of date of this order, less any funds held by
the Eighth Respondent.
10.
That the Eight Respondent be order to pay over such funds as he has
attached from the Fourth - Sixth Respondents’
bank accounts,
pursuant to an order obtained under case number 3071/2021, to the
Applicants in accordance with the nomination forms
of the deceased
dated 5 July 2010 under pension policy with pension number [....];
11.
Alternatively, that the matter be remitted to the First Respondent in
order for it to reconsider how 100%
of the pension interest should be
divided among the Applicants.
12.
Alternatively, that the matter be removed from the roll and the
Applicants be ordered to submit a complaint
to the Pension Fund
Adjudicator.
13.
Cost of the application against the First Respondent, Fourth
Respondent, Fifth Respondent and Sixth Respondent,
the one paying the
other to be absolved.’
[5]
There was no objection to the joinder of the seventh and eight
respondents. Prayers
1 and 2 of the Amended Notice of Motion were
included
ex abundanti cautela
and given the facts and
timelines followed, unnecessary to adjudicate. Prayers 11 and 12 were
abandoned by the applicants. Condonation
was granted to the
respondents for the late filing of their answering affidavit and
heads of argument. Accordingly, we were called
upon to adjudicate
prayers 5 to 10 and 13 of the Amended Notice of Motion. The disputes
ultimately revolved around the interpretation
of a “dependent”
and the nature of the discretion bestowed on the Board of Trustees
(the Board) regarding the award/allocation
of the pension gratuity of
a deceased member of the fund.
[6]
The GEPF is a pension fund contemplated in section 2 of the
Government Employee Pension
Law,1996
[1]
(the GEP Law). The GEPF operates under the GEP Law and the rules as
published in Schedule 1 of the GEP Law. The GEP Law regulates
the
distribution and pay out of pension benefits and gratuity of members
of the GEPF. The Government Pensions Administration Agency
(GPAA), by
means of the Board, administers funds and schemes on behalf of the
GEPF.
6.1
Section 22 of the GEP Law regulates the payment of a gratuity to
beneficiaries designated by a member of the
GEPF.
‘
22.1
If a gratuity is payable on the death of any member to the dependants
of such a member or to his or her estate, that member may, on the
prescribed form and subject to the prescribed conditions, notify
the
Board of his or her wish that the said gratuity be paid on his or her
death to the beneficiaries mentioned in that form and
be divided
among such beneficiaries in the proportion mentioned in that form.
22.2
Notwithstanding anything to the contrary in any law contained,
the
Board may on the death of a member who so notified the Board pay at
its discretion the gratuity concerned in accordance with
the member’s
wish.’
6.2
A ‘dependant’ is defined in s 1 of the GEP Law as
follows:
‘
dependant,
in relation to a member or a pensioner, means─
‘
(a)
any person in respect of whom the member or pensioner is legally
liable for maintenance;
(b)
any person in respect of whom the member or pensioner is not legally
liable for maintenance, if such a person─
(i)
was, in the opinion of the Board at the time of the death of the
member or pensioner in
fact dependent upon such member or pensioner
for maintenance;
(ii)
is the spouse of the member or pensioner, including a party to a
customary union according to
indigenous law and custom, or to a union
recognised as a marriage under the tenets of any religion; or
(c)
a posthumous child of the member or pensioner; and
(d)
a person in respect of whom the member or pensioner would have been
legally liable for maintenance had that person
been a minor.’
whilst
‘beneficiary’ is defined as follows:
‘
Beneficiary
means the dependant or nominee of a member or pensioner as the case
may be.’
[7]
The first applicant is the deponent to the founding affidavit. She
states that at
the time of the deceased’s passing they had been
living together for a period of roundabout 20 years, and the deceased
supported
herself and the two minors. On 7 September 2010, in
accordance with the pension fund policy and on the official
nomination form
designated therefore, deceased had nominated herself
and the two minors as the only beneficiaries of his pension benefit
held with
the first respondent. After the deceased had passed on, she
started making enquiries on when the benefit would be paid out.
Having
made enquiries with the first respondent about the deceased’s
pension benefit, it became evident to her that the first respondent
was not in possession of the beneficiary/nomination form of the
deceased and was in the process of processing payments solely in
accordance with the payroll system (PERSAL) of the SANDF. She
hereupon raised a formal dispute with the first respondent to halt
payment of the pension benefit per the said PERSAL. First respondent
however proceeded to allocate 45% of the deceased’s
pension
benefit to the major children, and informed her on 3 February 2021
that payment was about to be released. On even date
a letter was
addressed to the first respondent requesting written reasons for its
decision to amend/overrule the nominations made
by the deceased, and
a further request to pay out the pension benefits in accordance with
such nominations. An employee of first
respondent informed her that
the matter was being reviewed internally. The first respondent was
also requested to indicate if any
internal procedure had to be
followed before a court may be approached, but did not receive any
reply thereto. On 1 April 2021
she was notified by the first
respondent that it had internally reviewed/reconsidered its decision,
and that the first respondent
stood by its decision to include the
major children as dependants of the deceased and beneficiaries of his
pension interest. First
applicant states that on 8 April 2021 under
case no 1528/2021 an urgent application was issued against
respondents to, amongst
others, interdict the GEPF from releasing any
pension funds pending the outcome of the review application currently
before court,
which order was made final on 27 May 2021. The
applicants instituted the current review application on 28 June 2021.
On 31 June
2021 (according to the respondents 6 July 2021) the
respondents proceeded to pay out monies in accordance with their
initial apportionment,
which prompted the applicants to launch an
urgent application on 6 July 2021 under case number 3071/2021 to
preserve the funds
paid out to all beneficiaries pending the
finalization of this review application. The interim order of 6 July
2021 was confirmed
on 5 August 2021.
[8]
After more communication and documentation had come to light, first
applicant supplemented
her papers. Of importance is the fact that the
GPAA on 4 March 2021 in a letter addressed to the GEPF (ostensibly
intended to serve
as the record of the proceedings) had indicated
that the only nomination form that could be found was a form
completed by the deceased
on 7 August 1999 wherein the third
respondent was nominated to get 100% of the death benefits. Reasons
for the decision why the
pension benefit was allocated and paid out
to the majors were received on 15 July 2021. Based on these reasons
the applicants delivered
their Amended Notice of Motion and
Supplementary Founding Affidavit. Mr Buys alluded to the
insufficiency of the documents provided
by the respondents as
constituting “the record”. He submitted that it is
unknown when exactly the decision was
made, by whom it was made and
which documents were actually considered to reach the conclusion as
they did to distribute the pension
benefits.
[9]
The respondents in their opposing affidavit state that they deny “any
form of
liability levelled or implied” against them. Reliance
is placed on the provisions of the GEP Law, more specifically that
the majors were entitled to be paid as beneficiaries as contemplated
in the definition of a “dependant”. The deponent
to the
answering affidavit, Mr L Lange (legal manager in the employ of the
GPAA in Pretoria), avers that the Board paid at its
discretion the
gratuity concerned after receipt of the affidavits of the majors
(confirming that they are the biological children
of the deceased).
Annexing a document termed “Allocation of Dependants (WP 169)”,
the distribution of the gratuity
is set forth:
10%
to the first applicant, 20% and 25% respectively to the two minor
children and 13%, 15% and 17% respectively to the three major
children. The document was ostensibly signed 27 and 28 October
2020.
[10]
Both in their founding and replying affidavits the applicants set out
the grounds relied upon
for the review and setting aside of the
Board’s decision. It was emphasised by applicants that the
first/seventh respondent
not only disregarded the wishes of the
deceased as preferred in the nomination form of 2010, but misdirected
itself in exercising
its discretion by including the major children
in the distribution of the pension gratuity. Accordingly, so the
argument goes,
the decision to award a portion of the deceased’s
pension fund to the major children, was taken without any basis
therefore
and arbitrarily.
[11]
The respondents, represented by Ms Nhantsi, persisted therewith that
the pension fund benefits
were processed and distributed in terms of
the GEP Law. Reliance was placed thereon that respondents exercised
the discretion conferred
upon them by section 22(2) of the GEP Law.
However, she responsibly conceded that, as is evident from the papers
filed by both
the applicants and the respondents, the Board had not
been in possession of the nomination form of 2010 when making the
decision
on the apportionment of the pension gratuity.
[12]
The respondents did not take issue with the applicability of the
Promotion of Administrative
Justice Act 3 of 2000 (PAJA) in this
matter, in my view correctly so. In determining whether the impugned
decision made by the
seventh respondent falls within the scope of
PAJA, the definition of “administrative action” in
section 1(b) is the
point of departure:
‘ “
administrative
action” means any decision taken, or any failure to take a
decision, by –
(a)
…
(b)
a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in terms
of
an empowering provision, which adversely affect the rights of any
person and which has a direct, external legal effect, …’
All
highlighting effected in the excerpts from case law referred to
herein below, is intended for own emphasizing and does not appear
as
such in the judgments.
[12]
In
Public
Servants Association of South Africa and Others v Government
Employees Pension Fund and Others
[2]
the Supreme Court of Appeal did not deem in necessary, in view of
certain conclusions it had already made, to consider the issue
whether a decision taken by the GEPF constitutes an administrative
action reviewable in terms of PAJA. However, Navsa JA held as
follows:
‘
There
is presently no judicial consensus on whether decisions of pension
funds either generally, or in limited circumstances, constitute
administrative action as contemplated in the PAJA.
It
must in my view, depend on the nature of the power being exercised by
the fund, having regard to the related statutory provisions
or rule
under which it is exercised
.’
[3]
[13]
Recently, in the unreported judgment of
Moropa
and others v Chemical Industries National Provident Fund and
others
[4]
the full bench per Adams J held as follows (at para [46-48]):
‘
[46]
For all of these reasons, I am of the view that the power of the
Trustees to delegate their statutory obligation to properly
administer a pension fund, to an external administrator, which is one
both empowered and circumscribed by Legislation, is a decision
which
involves the exercise of public power or the exercise of a public
function.
This is so because, considering the definition of
‘administrative action’ in PAJA, a Pension Fund, being a
juristic
person, in appointing an administrator, exercises such power
‘in terms of an empowering provision’, being the PFA and
the regulations promulgated thereunder.
The term ‘empowering
provision’ is broadly defined as ‘a law, a rule of common
law, customary law, or an agreement,
instrument or other document in
terms of which an administrative action was purportedly taken’.
In this matter, the point is simply that the public has an
interest in the lawful administration of pension funds, irrespective
of whether they are members of a particular pension fund or not.
Pension fund trustees administer money in trust on behalf of members
of the fund and are carefully regulated and controlled by
statute and
the Registrar.
[47]
Moreover, in my view,
the decisions have a direct, external
legal effect and affects the rights of members.
Nothing more
needs to be said about this requirement.
[48]
Accordingly, I am of the view that the decisions sought to be
reviewed and set aside in the review application,
constitute
administrative action as defined in section 1 of PAJA.
This
conclusion is consistent with a number of decisions where courts have
held that decisions of a pension fund taken in terms
of section 37C
of the PFA (which deals with the paying out of benefits upon the
death of a member)
constitute administrative action and are
reviewable under PAJA.’
[14]
Reference was made in
Moropa
supra
to
Titi
v Funds at Work Umbrella Provident Fund
[5]
wherein Smith J concluded in para [14]:
‘
The
respondent, when acting in terms of the provisions of the Act and
administering the funds on behalf of its members, is exercising
a
public power. The decisions which it is empowered to take in terms of
s 37C of the Act,
and in particular the power to effectively
override the express wishes of its members, may conceivably affect
members of the public.
Any decision made in pursuance thereof and
which could negatively impact on members of the public would
therefore be subject to
judicial scrutiny and review in terms of the
provisions of PAJA
.’
[15]
I align myself with the reasoning in the
Moropa
and
Titi
cases. On the facts before us, the decision sought
to be reviewed entailed the power of the fund to exercise a
discretion in the
equitable distribution of the pension gratuity of
its member, the deceased, in terms of the PFF Law and the Pension
Funds Act.
The power to effectively override the express wishes
of its member in my view undoubtedly affect members of the public
(the fund
members and their beneficiaries). Decisions made pursuant
hereto could (and as averred by the applicants did in fact) impact
negatively
on such members and should undoubtedly therefore be
subject to judicial scrutiny as envisaged by the provisions of PAJA.
The decision
of the Board to distribute the deceased’s pension
gratuity as it did is thus in my considered view an administrative
action
as contemplated in PAJA.
[16]
Applicants contend that the Board erred in its interpretation of
“dependants” as,
not only had the majors been estranged
from and renounced the deceased as their father for many years, but
they were neither financially
dependent on the deceased nor minors at
the time of the deceased’s passing.
[17]
In
Government
Employees Pension Fund v Buitendag
[6]
Cloete JA dealt with the interpretation of “dependant”.
The background facts herein entailed that the GEPF awarded
the
gratuity of the deceased member to her husband (and/or stepson). When
it made the award, the fund was unaware of the existence
of the
biological adult children of the deceased from her first marriage.
The children prayed for an order reviewing and
setting aside the
decision of the Board and to have them considered and included in the
award of the Board. Cloete JA considered
the nature of the definition
of “dependant” as follow:
‘
[7]
The Provincial Government contended that the children are not
‘dependants’ as defined in
the Law. Ms Regina Kgasi, the
deponent to the affidavits delivered on behalf of the Provincial
Government, said in reply to Ms
Scheepers who deposed to the
affidavits delivered on behalf of the Fund, that:
‘
Ms
Scheepers argues in this paragraph that the Applicants are major
children of the deceased and that they are therefore “
dependants
”
of the deceased. I dispute
the legal correctness of this argument
in view of the evidence that none of the Applicants were financially
dependent on the deceased
at the time of her death
.’ (own
emphasis added)
Counsel
representing the Provincial Government put forward submissions in
support of this contention in the heads of argument. The
submissions
are untenable. They amount to this: that in the case of children,
paragraph (a) of the definition must be confined
to minors, and
paragraph (d) must be interpreted as relating to major children
who are not self-supporting.
In that way, the written submission
proceeded, the common law requirement that a dependant must be in
need of support to qualify
for support, is preserved: a minor child
who is self-supporting could not fall under paragraph (a) and a major
child who is self-supporting
would not fall under paragraph (d).
But
there is no warrant for limiting the provisions of either paragraph
(a) or paragraph (d), which are in clear terms.
Nor, given the
purpose behind the law, is there any reason for excluding major
children who are self-supporting: as I have already
pointed out, the
purpose of the law is to benefit ‘dependants’, not the
member’s estate
and there will be many cases where a member
has no ‘dependants’ as contemplated in paragraphs (a) to
(c) of the definition…’
[18]
In my view the contention by the applicants that the majors could not
have been included on the
basis of them not being financially
dependent on the deceased (either upon him completing the nomination
form or at the time of
his demise), cannot be sustained in view of
Buitendag
supra
. Moreover, adopting the same
line of reasoning as Cloete JA, I likewise do not find any reason to
limit paragraph (d) of the definition
to read that dependants had to
be minors “at the time of the deceased’s death”. I
find further support for my
view in the wording of “dependant”
under paragraph (b)(i):
‘
any
person in respect of whom the member or pensioner is not legally
liable for maintenance, if such a person─
(i)
was, in the opinion of the Board
at the time of the death of the
member
or pensioner in fact dependent upon such member or
pensioner for maintenance;’
The
legislature did not include the words “at the time of the death
of the member” in the wording of “dependant”
in
section (d): a person in respect of whom the member or pensioner
would have been legally liable for maintenance had that person
been a
minor.’
[19]
Regarding the discretion of the Board in awarding the gratuity
Cloete, JA in
Buitendag
supra
held as follows:
‘
[6]
It was nevertheless common cause between the children and the Fund
that
the Board has a discretion to choose which dependants will receive a
gratuity and in what proportions.
It
seems to me that, by necessary implication, this must be so
.
I say this for the following reasons. If a gratuity cannot be paid to
a dependant, it will have to fall into the deceased member’s
estate. But the stated purpose of the Law is to benefit inter alia
dependants of a member ─ not his or her estate. In addition,
in
terms of s 28,
[7]
a gratuity
payable to a dependant is deemed not to be property in the estate of
the member and is accordingly protected from estate
duty.
Furthermore, s 22.1 presupposes that a gratuity
may
be payable to dependants of a member
;
and if the Board has a discretion to override the express wishes of a
member contained in a nomination, as it does in terms of
that
section, it would be logical for it to have a discretion to determine
which dependants shall benefit where no nomination has
been made
.’
[20]
As part of his reasoning that the Board has a discretion in awarding
the gratuity, Cloete JA
proceeded to deal with the legislation
preceding the Law, namely the Government Service Pension Act
[8]
which likewise conferred a wide discretion of the nature sought to be
implied. Reference was made to section 37C (1) of the Pension
Funds
Act:
‘
(1)
Notwithstanding anything to the contrary contained in any law or in
the rules of a registered fund, any benefit
payable by such a fund
upon the death of a member, shall, subject to a pledge in accordance
with section 19(5)(b)(i) and subject
to the provisions of section 37A
(3) and 37D, not form part of the assets in the estate of such a
member, but shall be dealt with
in the following manner:
(a)
If the fund within twelve months of the
death of the member becomes aware of or traces a dependant or
dependants of the member,
the benefit shall be paid to such dependant
or, as may be deemed equitable by the board, to one of such
dependants or in proportions
to some of or all such dependants.’
[21]
In my view, in addition to the aforementioned exposition of the
legislation, Rule 14.5.9 of the
GEPF Law also finds applicability in
confirming the Board’s discretion in making an award. It reads:
‘
If
a gratuity is payable to
two or more beneficiaries, such gratuity
shall be paid to any such beneficiaries and in such proportions as
the board may deem fit
.’
[22]
The argument of Mr Buys that the Board could not exercise its
discretion by overriding the wishes
of the deceased, can thus not be
sustained.
[23]
The Board was unaware of the 2010 nomination and did not consider it
in coming to a decision.
It misdirected itself therefore as it was
compelled to have considered same in coming to a conclusion. In my
view it would serve
no purpose for the member to be invited to
indicate such if it is not taken into account by the fund when it
must allocate the
gratuity. Once they are appraised thereof, they are
entitled of course to exercise a discretion whether they want to
follow that
or if they deem it appropriate, to differ therefrom. In
casu it is common cause that the Board had no knowledge of the
nominations
made by the deceased in 2010, at the time of their
decision. With the result that at the time of the decision, the board
could
not and did not take the nomination into consideration. This
being so, the decision maker took a decision without all the relevant
information and knowledge. It does not avail the decision maker that
it took knowledge of the fact after it had already made the
decision.
Absent therefore the nomination, it vitiated the decision. The result
is therefore that I intend to remit the decision
to the Board for
reconsideration. Obviously it might result in them making any
decision, including a similar one than before. However,
it is
important that an appropriate decision can only be made on all the
information including the 2010 nomination form of the
deceased.
[24]
I pause to mention in passing that the relief claimed by applicants
that respondents should consider
the applicants to be the only
beneficiaries and accordingly pay the amounts to applicants in line
with the nominations, cannot
be granted. It is not for this court to
tread on the domain of the discretionary powers of the fund and
interfere therewith. This
court can only decide whether, on the
papers before us, the discretion was exercised rationally or not.
24.1
In
Oskil
Properties (Ltd) v Chairman of the Rent Control Board and Others
[9]
Van Rensburg J concluded:
'In
reviewing the proceedings of a statutory or other body lawfully
vested with a discretion, the jurisdiction of a court of law
is
limited to the question whether that body has in fact exercised its
discretion.
It has no jurisdiction to enquire into the correctness
of the conclusion arrived at by it on the evidence before it
.'
24.2
The pension funds adjudicator echoed this principle in
Stacey
(Koevort) v Old Mutual Protektor Pension Fund and Another
[10]
:
‘
As
already alluded to in the preliminary ruling,
the effecting of an
equitable distribution requires of the board of trustees to take into
consideration all the relevant factors
and discard irrelevant ones.
The board may also not unduly fetter its discretion, nor should its
decision reveal an improper purpose. If it has acted as aforesaid,
no
reviewing tribunal will lightly interfere with their decision.
It
should be noted that even if I may not necessarily agree with the
decision of the board, that in itself is not a ground for setting
aside the board's decision.
This is because it is not my role as
a reviewing tribunal to decide on what is the fairest and most
generous distribution.
The test in law is whether the board has
acted rationally and arrived at a proper and lawful decision.
’
[25]
It would appear from the papers that the seventh respondent made an
allocation of dependants
in the “Allocation of Dependants (WP
169)” signed on 27 and 28 October 2020. As mentioned the
applicants objected thereto
where after the matter was reconsidered.
On 1 April 2021 the applicants were informed that the decision will
not be amended. For
the reasons mentioned, the decision of seventh
respondent dated 27 and 28 October 2020 was tarnished in that it did
not consider
or acknowledge the 2010 nomination form and preferences
of the deceased. It is for that reason that it is the aforementioned
allocation/decision
that stands to be reviewed and set aside. In my
view the matter should be referred back for reconsideration with the
instruction
that seventh respondent is to duly consider the 2010
nomination as part of the relevant information and or factors.
[26]
There is no reason why costs should not follow the event. Mr Buys
argued that the cost order
should include that of the postponement of
21 February 2022 in view of the respondents’ disregard for the
rules of court
in, amongst others, not having filed answering papers
way past the time frames mandated by the Uniform Rules of Court. I am
in
agreement with the submission.
[27]
Accordingly the following orders are made:
1.
The decision of the seventh respondent
and the allocation of dependants by the seventh respondent (including
any allocations dated
27 and 28 October 2020) in respect of Willem
Andries Franswa Domburg (Identity Number: [....]) in terms of pension
benefits payable
under pension number [....], is reviewed and set
aside.
2.
The matter is referred back to the seventh respondent for
reconsideration and
reallocation of dependants and the seventh
respondent in coming to a decision, is ordered to take cognisance of
the nomination
form of the deceased dated 5 July 2010.
3.
In order to give effect to prayer 2 above, the Board of Trustees of
the seventh
respondent is directed to, within 30 (thirty) days of the
granting of this order, convene a board meeting and within 10 days
after
having made a determination, indicate in writing the outcome
thereof by furnishing full reasons for such determination.
4.
The seventh respondent is ordered to pay the costs, such cost to
include the
cost of 22 February 2022.
5.
The interim order of this court dated 8 April 2021 and confirmed on 6
May 2021
is extended in as far as the eight respondent is to retain
the funds attached in terms of the order.
C
REINDERS, ADJP
I
concur.
S
CHESIWE, J
On
behalf of the Applicants:
Adv
JJ Buys
Instructed
by:
Willie
J. Botha Inc
BLOEMFONTEIN
On
behalf of the 1
st
and 7
th
Respondents: Adv NO
Nhantsi
Instructed
by:
Mpoyana
Ledwaba Incorporated
c/o
Modisenyane Attorneys Inc
BLOEMFONTEIN
[1]
(Proclamation 21 of 1996 as amended)
[2]
[2020] 4 All SA 710 (SCA).
[3]
At
paragraph [42].
[4]
[2022] JOL 54477 (GJ)
[5]
[2011] JOL 23125
(ECM)
[6]
[2006] SCA 121 (RSA)
[7]
Section 28 provides: ‘Notwithstanding anything to the contrary
in any law contained, any benefit or any right to a benefit,
due and
payable in terms of this Law to the beneficiary of a member, on or
as a result of or after the death of that member shall
for the
purposes of the Estate Duty Act, 1955 (Act 45 of 1955), be deemed
not to be property as defined in section 3(2) of that
Act.’
[8]
Act 57 of 1973.
[9]
1985
(2) SA 234
(SE) at 237I
[10]
[2005]
1 BPLR 73 (PFA) at para [15]