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2021
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[2021] ZAGPPHC 165
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Van Rhyn and Another v Pension Funds Adjudicator and Others (2138/18) [2021] ZAGPPHC 165 (31 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No. 2138/18
REPORTABLE
OF
INTEREST TO OTHER JUDGES REVISED
In
the matter between:
NICOLAAS
ALBERTUS VAN RHYN
FIRST
APPLICANT
SUSANNA
ELIZABETH VAN RHYN
SECOND
APPLICANT
And
THE
PENSION FUNDS ADJUDICATOR
FIRST RESPONDENT
DSV
FLEXI RETIREMENT FUNDS
SECOND RESPONDENT
DANIEL
ADRIAANS ADAMS
THIRD
RESPONDENT
Coram:
Millar AJ
Heard
on:
24 March 2021 – This application was heard virtually.
Delivered:
31 March 2021 – This judgment was handed down
electronically by circulation to the parties’ representatives
by email,
by being uploaded to the
CaseLines
system of the
Gauteng Division and by release to release to SAFLII. The date and
time for hand-down is deemed to be 14H00 on 31
March 2021.
JUDGMENT
MILLAR,
A J
1.
This is an application brought by the applicants for review
and
remittal back for reconsideration of a determination by the Pension
Funds Adjudicator made on 7 December 2017.
2.
The
applicants are the parents of the late Ms van Rhyn who tragically
passed away on 19 October 2014. At the time of her death
she
was a member of the Second Respondent, DSV Flexi Retirement Fund
(“DSV”). She was neither married nor had
any
children and so the determination of to whom the benefits and the
proportion thereof fell to be determined in terms of section
37C(a)
of the Pension Funds Act
[1]
which provides:
“
(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 fund, to one of
such dependants or in proportions to
some or all of such dependants.”
3.
DSV, after having been notified of Ms van Rhyn’s death
then
conducted an investigation for purposes of determining how the amount
available for distribution was to be apportioned.
It was in
consequence of this investigation that DSV decided that the
apportionment, besides including the applicants and various
charities, should also include the Third Respondent (“Mr
Adams”) with whom the late Ms van Rhyn was residing
at
the time of her death.
4.
The applicants objected to the inclusion of the Mr Adams in
this
apportionment and lodged a complaint with the First Respondent (“the
adjudicator”) against it.
5.
Subsequent
to receipt of the complaint, the adjudicator considered it and upheld
the complaint and on 13 February 2017 ordered DSV
to re-investigate
the matter. The reinvestigation that was ordered was into the
dependency and extent thereof of both the
applicants and Mr Adams
[2]
.
6.
DSV thereafter conducted a further investigation and in consequence
thereof made a new determination which although it substantially
reduced the apportionment in favour of Mr Adams and increased
the
apportionment in favour of the applicants, still made provision for
Mr Adams as a dependant.
7.
It was in respect of this revised determination that a further
complaint, which is the subject matter of the present litigation, was
lodged with the adjudicator.
8.
It is the
case for the applicants that DSV determination in respect of the
second complaint
[3]
,
that it was
functus
officio
is wrong and that this Court should set this aside and remit the
complaint back to the adjudicator for reconsideration afresh.
9.
It was argued by counsel for the applicants that DSV and by
implication the adjudicator had not attached sufficient weight to the
allegation in the complaint that the deceased and Mr Adams
had in
fact terminated their mutual dependency some two weeks before her
death. However, this argument is not borne out when
regard is
had to the revised determination submitted by DSV. The revised
determination deals comprehensively with all the
additional evidence,
facts and circumstances considered by DSV in reaching the decision
that it did on Mr Adams’s dependency
and the revised
apportionment.
10.
The adjudicator for its part, in its determination of 7 December 2017
stated
:-
“
5.4
A determination was handed down by this Tribunal on 20 February
2017. The First Respondent’s
decision (Second Respondent
in the present proceedings) was set aside and it was ordered to
re-investigate the allocation of the
deceased’s death benefit
and to proceed with the payment of the death benefit after finalizing
its investigation. This
Tribunal’s order was final and
binding and therefore this Tribunal became functus officio.”
11.
In order to decide whether or not the adjudicator was indeed
functus
officio
, it is necessary to consider the first complaint in its
terms and the second complaint in its terms. If the complaints
are
materially different, then it cannot be said that a determination
has already been made in respect of the second complaint and that
the
adjudicator was precluded from making a new determination in respect
of that second complaint.
12.
The applicants did not place before the Court the first complaint.
It
was not attached to the founding affidavit by reason of “avoiding
prolixity”. It also does not form part of any
of the
other documents filed of record. The only reference to the
substance of the first complaint is in the second complaint
where the
applicants stated in regard to the first complaint that:-
“
11.
The main thrust of the complaint was that Mr Adams was not a
dependent of the deceased upon her death
and that the complainants
should be regarded as dependants
12.
The terms of the decision of the Pension Fund Adjudicator, was that:
12.1
the decision of the First Respondent in respect of the distribution
published on 27 October 2015 was set
aside;
12.2
the First Respondent was ordered to re-investigate the allocation of
the death benefit in terms of Section
37C of the Pension Funds Act in
respect of the complainants and Mr Adams, considering the extent of
their financial dependency
on the deceased, their ages and
relationship with the deceased”.
13.
The second complaint was expressed by the applicants as follows:
“
19.
The complainants objection to the second distribution is solely aimed
at:
19.1
the finding by the Board of Trustees of the First Respondent that Mr
Adams was a dependent of the deceased
as defined in the Pension Funds
Act at the time of her death;
19.2
the extent of his alleged dependency; and
19.3
whether Mr Adams should be disqualified from receiving any benefit.”
14.
If regard is had to the terms of the first complaint as set out in
paragraph
12 above as well as the terms of the second complaint, in
paragraph 13 above it is apparent that it is the same complaint.
15.
The adjudicator correctly insofar as this aspect is concerned, stated
the position
in making its determination in respect of the second
complaint and finding that it was
functus officio
that:
“
The
complainants cannot keep raising new issues in an effort to get the
result they want, which is the total exclusion of the partner
as a
dependent”.
16.
However, the enquiry does not end in finding that the complaints were
the same
and that the adjudicator was correct in concluding that it
was functus officio on that basis alone.
17.
In terms of section 30P(2) of the Act this Court, on any referral to
it, may
consider the merits of the complaint made to the First
Respondent and the evidence upon which the determination of the
complaint
was made and “
may make any order it deems fit
”.
18.
In Gerson v
Mondi Pension Fund and Others
[4]
it was held that:
“
In
determining the applicant’s complaint to the adjudicator, the
adjudicator had no power to simply substitute his or her
discretion
for that of the board. Section 30E of the Act provides that the
adjudicator shall investigate any complaint and ‘may
make an
order which any court of law may make’. Since a court of law
could not without more substitute its discretion for
that of the
board, it follows that neither could the adjudicator. This court is
in that respect in the same position as the adjudicator.”
19.
Regard must be had to the terms of the first determination and
whether or not
DSV in re-investigating the apportionment, conducted a
proper re-investigation and thereafter exercised its discretion
properly
in deciding that Mr Adams was a dependant of the deceased?
If it did then it is axiomatic that the adjudicator was indeed
functus officio
and there is no basis for this Court to
interfere with the decision of DSV.
20.
The case for the applicants on the papers was that the adjudicator’s
determination
that it was
functus officio
was wrong and for
that reason this court should refer the second complaint back to it
for reconsideration. In argument the main
thrust of the challenge,
although this was not the case made out in the papers, was that
insufficient weight had been attached
to the fact that Mr Adams and
the deceased had, according to the family of the deceased, allegedly
ended their relationship two
weeks before her passing.
21.
The reasons for the apportionment provided by DSV make it clear that
they considered
all the allegations made by the deceased’s
family and contacted the persons (neighbours’ of the deceased
and Mr Adams)
that were identified by the applicants who would
presumably have corroborated this. They in fact did not corroborate
the allegations.
Furthermore, additional objective evidence such as
the bank records of both the deceased and Mr Adams which reflected an
inter-dependence
between them as well as the fact that the deceased
was a dependant on Mr Adams medical aid was considered.
22.
DSV issued a comprehensive report in which it set out all the
evidence available
to it after its reinvestigation of the matter and
its reasoning for the conclusion that Mr Adams was indeed a dependent
of the
deceased.
23.
In
Fundsatwork Umbrella Pension Fund v Guarneri and others
[5]
,
Wallis JA held that:
“
[25]
…., the proper construction of section 37C(1)(a) is that the
time at which to determine who is a dependant
for the purpose of
distributing a death benefit is when that determination is made, and
furthermore, the person concerned must
still be a beneficiary at the
time when the distribution is made. That is the only way in which to
ensure that the persons identified
as dependants are those whose
interests the section seeks to protect.”
24.
The approach adopted by DSV is entirely consonant with this if regard
is had
to the evidence that it had before it.
25.
It was not suggested by the applicants that there was any further
available
relevant evidence which had not been made available to the
adjudicator or DSV. The reinvestigation resulted in all
relevant
evidence for the determination of dependency being made
available and considered.
26.
In the second complaint the applicants had asserted that they had not
had sight
of all the evidence that was considered however they were
unable to proffer any explanation as to why this had not been sought
in these proceedings by way of discovery as they were entitled to do.
27.
There being
no further evidence and DSV having properly considered the matter in
the exercise of its discretion
[6]
,
there is no basis upon which either the adjudicator or this court can
interfere therewith.
28.
The parties both agreed that the costs should follow the result but
that the
costs relating to the appearances in court in June and
September 2018 should be excluded. This will be reflected in the
order that
I intend to make.
29.
In the circumstances, it is ordered:
29.1
The application is dismissed
29.2
The applicants are ordered to pay the costs of the application to
date which costs are to exclude the costs
of the appearances in June
and September 2018.
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
24
MARCH 2021
JUDGMENT
DELIVERED ON:
31
MARCH 2021
COUNSEL
FOR THE APPLICANTS:
ADV. H DRAKE
INSTRUCTED
BY:
JURGENS BEKKER ATTORNEYS
REFERENCE:
SA
HOBSON
COUNSEL
FOR THE SECOND RESPONDENT:ADV. S KHUMALO SC
INSTRUCTED
BY:
SHEPSTONE & WYLIE
REFERENCE:
J
ESTERHUIZEN
NO
APPEARANCE FOR EITHER THE FIRST OR THIRD RESPONDENT
[1]
24 of 1956
[2]
See paragraph 14
infra
where the terms of the first determination are set out in quoted
paragraph 12
[3]
dated 7 December 2017
[4]
2013 (6) SA 162
(GSJ) at paragraph 28, see also Meyer v Iscor
Pension Fund
2003 (2) SA 715
SCA
[5]
[2019] 2 BPLR 321 (SCA) at para 25
[6]
Sentinal Retirement Fund v CV Bold & Others (80105/2015) [2017]
ZAGPPHC 83 (7 March 2017)