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[2019] ZAGPPHC 143
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Tindeli and Another v Government Employees Pension Fund (65787/17) [2019] ZAGPPHC 143 (6 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED
YES
CASE NO: 65787/17
6/5/2019
In the matter between:
VUYELWA MANDISA TINDLELI
FIRST APPLICANT
FORMER
TRANSKEI CIVIL SERVANTS
SECOND APPLICANT
And
GOVERNMENT
EMPLOYEES PENSION FUND
RESPONDENT
JUDGMENT
COLLIS
J:
INTRODUCTION
1. This
is an opposed application wherein the First Applicant is seeking
leave
in terms of Section 38(c) of the Constitution or alternatively
under the common law, to be granted permission to institute a class
action as the representative of the members of the Former Transkei
Civil Servants Pension Fund against the Respondent.
LAW
2.
Section 38(c) of the Constitution provides as follows:
"Anyone listed in this section has the
right to approach
a
competent
court alleging that a right in the Bill of Rights has been infringed
or threatened and the court may grant appropriate
relief including
a
declaration of rights. The persons
who may approach
a
court
are
-
(c) anyone acting as
a
member of or in the interest of a
group or class of persons".
[1]
3. "A
class action is defined as a collective lawsuit in which an
individual
person or persons are confirmed by the court to bring and
resolve the claims of 'others similarly situated', in a single
proceedings''.
[2]
4. In
terms of the Notice of Motion, the Applicant is seeking an order
declaring
that the following persons each constitute a class of
action:
4.1
members who contributed towards the Transkei Government Service
Pension Fund
(the previous fund)
from
1975 until 1996 ("The First Class")
4.2
the dependants of the main member who passed away and who contributed
towards the
Transkei Government Service Pension Fund
(the
previous fund)
from 1975 until 1996
("The Second Class")
5. Furthermore,
the Applicant is also seeking an order to act as representative
of
the members of -
5.1
the "First Class"; and
5.2
The "Second Class"
In the further conduct of these proceedings
("The class action").
6. In
addition to the above the Applicant is seeking an order to declare
that
the First Applicant has the requisite
locus
standi
to bring the class action and
to represent the members of -
6.1 The "First
Class"; and
6.2
The "Second Class"
In claims for damages sustained as a result
that they have suffered prejudice due to the Government's mishandling
of their exit
from the Transkeian Government Service Pension Fund
when they were incorporated into the Respondent.
Thousands of the former members of the
Transkeian Government Service Pension Fund ("the pervious
Fund"), who contributed
towards the previous fund from 1975
until 1996, are being affected by the Government's mishandling of
their exit from "the
previous fund" when they were
incorporated into the Respondent on the 1
st
May 1996.
7. In
the decision of Children's Resource Centre Trust and Others
[3]
,
Wallis JA for the court laid down that generally, a successful class
certification applications would have to show:
7.1
the existence of a class identifiable by objective criteria;
[4]
7.2
a cause of action raising triable issue;
[5]
7.3
that the right to relief depends on the determination of issues of
fact, or
law or both common to all members of the class;
7.4
that the relief sought or damages claimed; flow from the cause of
action and
are ascertainable and capable of determination;
7.5
that where the claim is for damages, there is an appropriate
procedure for allocating
the damage to the class members;
7.6
that the proposed representation is suitable to conduct the action
and to represent
the class;
[6]
7.7
that given the composition of the class and the nature of the
proposed action
a class action is the most appropriate means of
determining the claims of class members.
CLASS DEFINITION
8. In
defining the class, it is not necessary to identify all the members
of
the class. It is however necessary that the class be defined with
sufficient precision that a particular individual's membership
can be
objectively determined by examining their situation in light of the
class definition.
9. As
per the founding affidavit
[7]
the deponent sets out the cause of action that will be pursued by the
first class, based on the following elements:
9.1 the
members of the class contributed towards the "GEPF" and
their contributions
towards "the previous fund" was paid
over to the "GEPF".
9.2
the respondent owed the member of the first class a statutory and/or
constitutional
duty to provide them with the correct calculations
regarding their pension contributions.
9.3
the respondent breached these duties. The respondent did so wrongly
by failing
to incorporate the members' contributions that were made
to the previous fund.
9.4
as a consequence of these breaches members of the first class pension
benefits
were wrongfully calculated.
10.
The causes of action to be pursued by members of the second class are
similar to those
to be pursued by members of the first class. The
members of the second class suffer harm because they were dependants
of a member
who would have fallen into the first class had the member
not passed away.
11.
The primary difference between the first and second class is that the
members of the
second class did not personally contribute towards the
"Transkeian Government Service Pension Fund", but are
dependants
of the main member who passed away.
12.
In defining the classes, the deponent alleges that each of the
members of the previous
Transkeian Government Service Pension Fund
who exited from 1975 until 1996 and who contributed to the Transkeian
Government Service
Pension Fund, is clearly identifiable by objective
criteria, namely by his or her name and other personal details.
Records of these
members are currently in the possession of the
Respondent.
13.
In the founding affidavit the deponent further alleges that she is a
former member
of the Government Employees Pension Fund ("GEPF")
and during February 2018, an executive committee was established by
members of the former Transkei Civil Servants who contributed towards
the Transkeian Government Service Pension Fund, wherein at
such
meeting she was elected the chairperson of the committee.
[8]
She further alleges that she herself was formerly employed by the
former Transkei Government and also contributed towards the
Transkeian Government Service Pension Fund ("the fund")
until the establishment of the Government Employees Pension Law,
Proclamation 1 of 1996 ("GEP Law"). This citation of the
deponent is repeated in the Draft Particulars of Claim.
14.
The Practice Manual of this Court
[9]
in respect of class actions provides as follows-
"1. A party referred to in section 38 of
the Constitution (Enforcement of Rights) which intends approaching
the Court for relief
whilst acting in terms of section 38(b) and (d)
is required to:
14.1 seek prior
leave from the Court to embark on such representative basis.
14.2 set out
fully its interest to act on a representative basis and where
applicable, details of
its mandate.
14.3 give
sufficient notice to all affected parties so that they can associate
or disassociate themselves
from the proposed litigation.
First point in limine
15.
In its answering affidavit the Respondent challenges the
locus
standi
of the First Applicant,
contending that she failed to annex any form of authority to launch
the present proceedings. In addition
to this the Respondent alleges
that the First Applicant failed to allege as to when she became a
member of the Transkeian Government
Service Pension Fund. In
challenging the Second Applicant, the Respondent alleges that the
deponent failed to identify the organisation
which elected her as
chairperson purporting to represent members of the Second Applicant;
what business and objectives it has and
what interest this
organisation has in the proceedings. It is on this basis that the
Respondent alleges the Second Applicant lacks
the necessary
locus
standi.
[10]
16.
The mandate of the First Applicant to the instructing attorneys of
the applicants
was only annexed to the Replying Affidavit as annexure
"A".
17.
During argument, Mr. PeIser on behalf of the Respondent argued that
the failure by
the First Applicant to annex to the Founding
Affidavit, any supporting documentation upon which her
locus
standi
is premised, is fatal.
18.
When a court considers the question of a litigants'
locus
standi
the question to be answered
is whether a person who approaches the court for relief has indeed
the right to do so.
19.
On
locus standi
the
First Applicant alleges that she was formerly employed by the Former
Transkei Government and during such employment contributed
towards
the Transkeian Government Employees Pension Law, Proclamation 1 of
1996.
20.
Therefore, in her own personal capacity she alleges that she
possesses the necessary
locus standi
to
launch these proceedings as she
would fall within the "first class".
21.
The matter however does not end there. The first applicant must also
have the necessary
locus standi
to
launch these proceedings on behalf of the Second Applicant. Her
locus
standi
to launch these proceedings
on behalf of the Second Applicant could only have been established by
way of a resolution taken by the
Second Applicant mandating her to
act on their behalf.
22.
In this regard not only was the first applicant required to allege
the basis upon
which her authority is premised, but she was also
required to annex proof in support of such authority. This proof
ought toto have
been annexed to the Founding Affidavit, and not for
the first time, to be annexed to the Replying Affidavit as a
knee-jerk reaction
when her authority was challenged.
23.
It is trite law that a person's
locus
standi,
must not merely be alleged,
but where necessary proof in support of such authority should be
annexed.
24.
In the present instance the First Applicant has failed to do so and
consequently,
she has failed to established that she holds the
necessary
locus standi
to
launch these proceedings on behalf of the Second Applicant.
25.
Consequently, I find the first
point
in limine
to have merit.
CAUSE OF ACTION
26.
With reference to the envisaged cause of action to be instituted the
deponent makes
the following allegations;
[11]
26.1 during 1975
the homeland of Transkei received independence from the Republic of
South Africa
and all administrative duties pertaining to the
Government of Transkei was administered by the Transkei Government.
26.2 during 1994
the Transkei Government was incorporated into the Republic of South
Africa. This
had the effect that the Transkei Government was
disbanded, and that all Transkei Civil Servants were then employed by
the South
African Government. In essence, although not applicable at
the time, there was a transfer of employment contracts from the
Transkei
to the Republic of South Africa.
26.3 during the
incorporation period there was an obligation on the former Transkei
Government to
submit all the employee's files of the Civil Servants
to the South African Government.
26.4 as all the
Former Transkei Civil Servants were now employed by the South African
Government,
it is submitted that there was an obligation on the South
African Government to verify and confirm the employee status of each
former Transkei Civil Servant.
26.5 as
Government employees during independence, the Transkei Civil Servants
contributed towards
a Transkeian Government Service Pension Fund
("the previous fund"). The Transkei Government was the
administrator of
the Pension Fund.
27.
In paragraph 6.16 the deponent further alleges that the Respondent,
as recipient,
was aware that the contributions by the members of the
Transkeian Government Service Pension Fund prior to 1996 had to be
taken
into consideration when the pension benefits were calculated
and paid out and/or is still to be paid out.
28.
Furthermore, that these duties arose from a statutory duty in terms
of the regulations
as stipulated by the "GEPLaw" and
constitutional obligations on the Respondents arising from the rights
enshrined in
section 33, 41 and 195 of the Constitution.
29.
In the Draft Particulars of Claim more specifically paragraph 35
thereof, the applicants
allege that as a consequence of the
Respondents' breaches of the "GEP Law", members of the
second class sustained damages
as a result that they have suffered
prejudice due to the Governments' mishandling of them exiting from
the Transkeian Government
Service Pension Fund, when they were
incorporated into the "GEPF".
Second point in limine
30. Now,
upon considering the proposed pleaded cause of action it is apparent
that the
applicants allege that mishandling of their exit from the
Transkeian Government Service Pension Fund, was the mishandling by
the
Government and one or more of its functionaries through which it
acts.
31.
In the Draft Particular of Claim, no other Department, Minister, or
functionary such
as the Minister of Finance or National Treasury, has
been cited albeit that these functionaries have a direct and
substantial interest
in these proceedings. No notice was given to
them in respect of the present application.
32.
Having regard to the allegations set out by the deponent, it is
apparent so the Respondent
contended, that no cause of action can
wholly be established as against the Respondent alone. At the very
least these other functionaries
of the South African Government
should be to have been cited as co-defendants, as they have an
interest in the proceedings.
33.
During argument on point, Mr De Klerk on behalf of the applicants,
argued that these
functionaries or interested parties can always be
cited prior to the summons being served on them, and as such he
thereby conceded
that these interested parties should have been
cited.
34.
Having made the concession that there existed other interested
parties and that these
parties have a directed and substantial
interest in the present proceedings, it follows that they ought to
have been cited and
notified of the present proceedings.
35.
Consequently, this court finds the second point
in
limine
to also have merit.
36.
Having found in favour of the Respondent on the points
in
limine
raised, conclude that these
points are dispositive of the entire application.
ORDER
37. Consequently,
the application is dismissed with cost, such cost to include the cost
consequent on the employment of two counsel.
COLLIS J
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
Appearances as follows:
For the First and Second
Applicants:
Adv. C.D De Klerk
Attorney of the First and Second
Applicant: Botma Attorneys
For the
Respondent:
Adv. Q PeIser SC
and Adv. T
Williams
Attorney
for the Respondent :
Mponyana Ledwaba Inc
Date of
Hearing:
01 November 2018
Date
of Judgment:
06 May 2019
[1]
Act 108 of 1996
[2]
The International Comparative Legal Guide to: Class and Group
Actions 2015, 7t h Edition, Global Legal Group Ltd, 2014, Chapter
28
p.190
[3]
2013 (2) SA 213 (SCA)
[4]
This requires that an applicant must define that class with enough
precision for a class member to be identified upon objective
consideration.
[5]
The threshold applied here is law. Wallis JA likened it to the test
in civil attachment to found jurisdiction and to an affidavit
resisting summary judgment.
[6]
The representative plaintiff may, but need not, be a member of the
class. The representative must have the capacity to conduct
the
litigation. This includes the ability to procure evidence, to
finance the litigation and to access lawyers. The payment
arrangement with the lawyers must be disclosed.
[7]
Founding affidavit para 7.6 and 7.8 pg. 25 and 29
[8]
Founding affidavit para 4.1
[9]
Gauteng Pretoria Practice Manual Volume 3 para 15.7
[10]
Answering Affidavit para 4 & 5 pg. 76 and 77.
[11]
Founding affidavit para 6 pg. 17