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[2021] ZALMPPHC 7
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Manti v Government Employees Pension Fund and Others (2991/2020) [2021] ZALMPPHC 7 (2 March 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO:2991/2020
In
the matter between:
MANTI
FRANCINAH PIPA
APPLICANT
And
THE
GOVERNMENT EMPLOYEES PENSION FUND
FIRST
RESPONDENT
DIKELEDI
MACHABA REBECCA
SECOND
RESPONDENT
DEPARTMENT
OF PUBLIC WORKS, LIMPOPO
THIRD
RESPONDENT
MOAGI
MOYAHABO
FOURTH
RESPONDENT
MASTER
OF THE HIGH COURT, POLOKWANE
FIFTH
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant has brought an application seeking orders that the
first respondent
be interdicted from considering the second
respondent as the legal spouse of the late Pholo Jackson Pipa
(deceased) for the purposes
of payment of deceased benefits held by
the first respondent; that the first respondent be ordered to
consider the applicant as
the only legal surviving spouse of the
deceased for the purposes of payment of the deceased pension benefits
held by the first
respondent; that the third respondent submit any
forms or documents so required by the first respondent in processing
the claim
of the applicant in respect of benefits due to her by
virtue of the deceased; that the fourth respondent be interdicted
from compelling
the applicant to include the second respondent as the
second wife of deceased in her claim with first respondent; and that
fourth
respondent be interdicted from submitting any claim forms
received from the second respondent whatsoever to the first
respondent
in this matter.
[2]
The applicant in her founding affidavit has stated she and the
deceased were married to each other
by civil marriage on 16
th
March 1994. The deceased passed away on 16
th
March 2019.
After the deceased death, the applicant was appointed as the executor
of the deceased estate. During his lifetime the
deceased was employed
by the third respondent.
[3]
After the burial of the deceased, the applicant and her children went
to third respondent and
completed the necessary documents in order to
claim the death benefits from the first respondent. The applicant
waited for the
first respondent to make payment and seeing that
payment was not forth coming, she engaged the services of a legal
representative.
The applicant’s legal representative advised
the applicant to continue making enquiries with the respondents about
the status
of her claim. On 10
th
March 2020 she approached
third respondent and was assisted by the fourth respondent. The
fourth respondent told her that the first
respondent has returned her
claim alleging that another claimant who is the second respondent,
has lodged a claim alleging that
she is the deceased surviving
spouse.
[4]
The fourth respondent tried to convince the applicant to consent that
the second respondent was
the deceased wife, and she refused. When
she refused to give consent, the fourth respondent told her that her
claim will take long
to be finalized. The fourth respondent further
advised her that no one will forward her claim forms to the first
respondent unless
she cooperate with them.
[5]
It is the applicant’s contention that the deceased and the
second respondent were not legally
married to each other. According
to the applicant, she is the only surviving spouse of the deceased.
[6]
First, fourth and fifth respondents did not file any opposing papers.
The third respondent had
filed a notice to abide. The second
respondent in opposing the applicant’s application has raised a
point
in limine
of non-joinder of the executor of the estate
of the deceased. On merits in her answering affidavit, the second
respondent has stated
that she and the deceased met during early 1980
wherein they had a love relationship. On 6
th
January 1981,
she and the deceased married each other customarily. The customary
marriage existed until the deceased passed away
on 16
th
March 2019. She denied that the applicant was married to the deceased
and that if they did, their marriage is null and void as
she is the
first wife, and had never consented to that marriage. She denied that
the applicant is entitled to benefit from the
estate of the deceased.
[7]
In her replying affidavit the applicant has raised a point
in
limine
submitting that the second respondent’s filing
notice of the answering (opposing) affidavit is not clear as to the
capacity
of the person who had signed it. However, when the
application was argued before the court, the applicant abandoned her
point
in limine
.
[8]
In relation to the second respondent’s point
in limine
,
the applicant has stated that the issue in dispute relates to the
death benefits at GEPF and that such benefits did not form part
of
the deceased estate. With regard to the alleged customary union, the
applicant, has stated that the second respondent has failed
to submit
proof of the existence of the alleged customary marriage, but only
attached confirmatory affidavits. The applicant has
further stated
that the alleged letter confirming the customary union between the
second respondent and the deceased was issued
on 16
th
July
2019 after the deceased has passed away.
[9]
The applicant is seeking an order that the first respondent be
interdicted from considering the
second respondent as the legal
spouse of the deceased. The applicant has lodged her claim for
payment of the pension funds through
the third respondent. The third
respondent in turn submitted the applicant’s claim forms to the
first respondent for processing
and payment. The first respondent
received another claim from the second respondent who claimed to be
the legal wife of the deceased.
Based on the two competing claims
lodged, the first respondent took a decision to return the file to
the third respondent for clarification
on the two competing claims.
[10]
The first respondent is an organ of State and its decision amounts to
an administrative action. In
Oudekraal Estates (Pty) Ltd vs City
of Cape Town
and Others
[2004] ZASCA 48
;
[2004] 3 All SA 1
(SCA) (28 May
2004))
at para 26 the court said:
“…
Until the
Administrators approval (and thus also the consequences of approval)
is set aside by a court in proceedings for judicial
review it exists
in fact and has legal consequences that cannot simply be overlooked.
The proper functioning of a modern state
would be considerably
compromised if all administrative acts could be given effect to or
ignored depending upon the view the subject
takes of the validity of
the act in question. No doubt it is for this reason that our law has
always recognised that even an unlawful
administrative act is capable
of producing legally valid consequences for so long as the unlawful
act is not set aside.”
[11]
The decision of the first respondent to refer the applicants claim
back to the third respondent will remain
in existence and cannot
simply be ignored without any justifiable reasons. The applicant did
not advance any reasons why the decision
of the first respondent
should be ignored. In my view, the applicant has followed the wrong
procedure in approaching this court.
The proper procedure was for her
was to bring a review application reviewing the decision of the first
respondent. On that point
alone the applicant’s application
stands to fail.
[12]
If I am wrong on this, the second problem which the applicant had to
overcome is that this application raises
material dispute of facts.
The question as to who is the surviving spouse of the deceased cannot
be decided on the papers as they
stand. The applicant has attached a
copy of a certificate of the alleged civil marriage between her and
the deceased which shows
that the two were married to each on 16
th
March 1994. The second respondent on the other hand alleges that she
and the deceased were married to each other by customary union
on 6
th
January 1981 and she had never given consent to the deceased to marry
the applicant. The second respondent had attached confirmatory
affidavit of two witnesses who confirms the existence of the alleged
customary union. The second respondent had also attached an
alleged
letter from the headman confirming the existence of the alleged
customary union.
[13]
In
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
at para 25 Harms DP said:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of facts arise on the affidavits,
a final order
can only be granted only if the facts averred in the applicant’s
(Mr Zuma) affidavits, which have been admitted
by the respondent
(NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent’s
version consists
of bold or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or
so clearly untenable
that the court is justified in rejecting them merely on the papers.”
[14]
The main reason why the applicant launched this application was that
she disputed that the deceased and the
second respondent were married
to each other. She was aware as at the time she launched her
application that there was a dispute
in relation to the marriage
between the deceased and the second respondent. She was therefore
aware that a material dispute of
facts might arise, but yet proceeded
on motion proceedings. It can only be ordered that she is the only
surviving spouse of the
deceased once all the evidence proving the
existence of a valid marriage are presented. In this case, that
cannot be achieved on
the papers as presented by the applicant only,
it will need to be supplemented by oral evidence. In my view, the
existence of the
dispute of facts in this matter is real, genuine and
bona fide and an order as requested by the applicant will not be
granted on
the papers as they stand. The applicant was aware of the
material dispute of facts when she launched her application and the
appropriate
remedy will therefore be to dismiss her application.
[15]
In the result I make the following order
15.1 The applicant’s
application is dismissed with costs.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
Applicant’s
Attorneys
Nethononda
Attorneys
Second
Respondent’s Attorneys
Kovani
Machete Attorneys
Date
of hearing
18
th
January 2021
Date
of Judgment
2
nd
March 2021