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[2019] ZAGPPHC 274
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Sindane v Sentinel Retirement Fund and Others (93656/2016) [2019] ZAGPPHC 274 (27 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
Case number: 93656/2016
Date: 27/6/2019
In
the matter between:
THEMBISILE
SINDANE
APPLICANT
AND
SENTINEL
RETIREMENT FUND
FIRST RESPONDENT
XSTRATA
COLLIERY LTD
SECOND RESPONDENT
THE
PENSION FUNDS ADJUDICATOR
THIRD RESPONDENT
SANTY
PRETTY MASINA
FOURTH RESPONDENT
LETTIE
MPHANGA
FIFTH RESPONDENT
NOMTHANDAZO
MTHETHWA
SIXTH RESPONDENT
S
L
MTHETHWA
SEVENTH RESPONDENT
JUDGMENT
TOLMAY,
J:
INTRODUCTION
[1]
The Applicant sought an order reviewing and setting aside the
determination of the
Third Respondent, the Pension Fund Adjudicator
("the Adjudicator") which determination was made in terms
of section 30M
of the Pension Funds Act 24 of 1956 ("The Act")
and handed down on 26 March 2015.
[2]
In
the Applicant's application launched on 1 December 2016, the
Applicant sought the following:
2.1
An
order substituting the determination of the Adjudicator with an order
declaring the Applicant a dependant and spouse of Aaron
Sipho
Mthethwa ("the deceased");
2.2
An
order that the benefit of the deceased be calculated and distributed
in a manner to include the Applicant as a beneficiary;
2.3
An
order declaring the Applicant, as a spouse to a marriage entered into
in terms of Customary Law with the deceased, is the owner
of half of
the proceeds of the pension/provident fund held by the deceased with
the First Respondent, the Sentinel Retirement Fund
("the Fund");
2.4
An order that the Applicant is further
entitled to a spouse's portion of the deceased's interest in the
pension fund as contemplated
in the Intestate Succession Act;
2.5
An
order that the Fund should within ten days of the order sought, pay
to the Applicant the sum of R 219 355-97, being half of the
proceeds
of the entire provident fund in the name of the deceased;
2.6
An
order directing the Fund, in addition to prayer 6 (para 2.5 above) to
pay to the Applicant any further pension related benefits
in terms of
the Rules of the Fund as may be payable to a dependant spouse; and
2.7
Costs.
[3]
On
16 January 2018, the Applicant served an amended notice of motion,
without having filed any notice of intention to amend, requesting
the
following amended relief:
3.1
Condoning
the Applicant's non-compliance with the provisions of section 30P(1)
for the late lodging of the application against the
decision of the
Adjudicator.
3.2
Setting
aside the determination by the Adjudicator handed down in case number
PFA/MP00011606/2014TD on 26
th
March 2015.
3.3
Substituting
the determination of the Adjudicator with an order declaring that the
Applicant is a dependant and a spouse of the
deceased;
3.4
An
order that the benefit of the deceased be calculated and distributed
in a manner to include the Applicant as a beneficiary;
3.5
An
order declaring the Applicant, as a spouse to a marriage entered into
in terms of Customary Law with the deceased, is the owner
of one
third of the proceeds of the pension/provident fund held by the
deceased with the Fund;
3.6
An
order that the Applicant is further entitled to a spouse's portion of
the deceased's interest in the pension fund as contemplated
in the
Intestate Succession Act;
3.7
An
order that the Fund should within ten days of the order sought, pay
to the Applicant the sum of R 146 237.31, being half of the
proceeds
of the entire provident fund in the name of the deceased;
3.8
An
order directing the Fund to pay to the Applicant any further pension
related benefits in terms of the Rules of the Fund as may
be payable
to a dependant spouse; and
3.9
Costs.
[4]
The Fund opposed the Applicant's
application.
POSTPONEMENT
[5]
Prior
to the hearing Applicant indicated that she would seek a postponement
and brought a substantive application to that effect.
The reason for
the postponement was based on the allegation that no notice of set
down was served on the Fourth Respondent (Ms
Masina). The Fund filed
an answering affidavit setting out the long delays that occurred, and
indicated that the matter has been
pending for approximately seven
years. A letter was also attached indicating that Ms Masina will not
be opposing the application.
The application for postponement was
dismissed.
NON-JOINDER OF INTERESTED
PARTIES
[6]
The
Fund initially raised the issue of joinder in its answering affidavit
to the Applicant's application as the Applicant failed
to join
certain interested parties. As a result the Applicant proceeded to
join the deceased's civil law spouse and his dependants
and nominees
as parties. They are the Fourth to Seventh Respondents. None of the
parties joined opposed the application.
BACKGOUND
[7]
The deceased was a member of the Mine
Employees Pension Fund until he passed away on 23 October 2012. On 1
July 2013, the Mine Employees
Pension Fund was merged into the Fund,
with the result that its assets and liabilities vested in the Fund.
[8]
Upon the deceased's death, a lump-sum
death benefit of R 438 711.94 became available for distribution to
the deceased's dependants
and nominees in terms of section 37C of the
Act and the Rules of the Fund.
[9]
The death benefit payable in this case
was a lump sum benefit to be distributed in terms of section 37C of
the Act and a spouse's
pension payable to the deceased's spouse as
defined in the Rules of the Fund.
[10]
Following the death of the deceased and the Fund's investigations,
claims for a share of the lump sum
benefit were received by the Fund
in respect of:
10.1
Ms S P Masina, the deceased's civil law
spouse;
10.2
The Applicant, Ms E T Sindane; the
deceased's alleged customary law spouse;
10.3
Ms LO Mphanga, the deceased's alleged
co-habiting partner;
10.4
Ms S L Mthethwa, the deceased's alleged
daughter from his relationship with Ms Mphanga; and
10.5
Ms N L Mthethwa, the deceased's
allegedly dependant sister and nominee.
[11]
The
Fund rejected Applicant's claim and the Applicant lodged a complaint
with the Adjudicator. The Applicant essentially contended
in her
complaint to the Adjudicator that:
11.1
She was married to the deceased in terms
of customary law;
11.2
She lived with the deceased from the
time they were married until the deceased died; and
11.3
The deceased supported her financially.
[12]
The answering affidavit and annexures
thereto including the Adjudicators determination revealed that the
investigation of the Fund
indicated that the deceased had purported
to marry the Applicant in terms of customary law on 13 November 2010.
The Fund concluded
that due to the deceased's then existing civil law
marriage to Ms Masina, which was concluded during 2004, that the
customary marriage
between the deceased and the Applicant was void
ab
initio
and therefore invalid.
[13]
The Fund's investigation also revealed
that there was no proof that the said customary marriage between the
deceased and the Applicant
was registered in terms of the Recognition
of Customary Marriages Act 120 of.1998 ("RCMA") and further
that the deceased
and the Applicant had been estranged since 2011.
Since then the deceased began to co habit with Ms L O Mphanga.
[14]
The Fund concluded, based on its
investigations that the Applicant had failed to provide satisfactory
proof to the Fund that she
qualified for either the spouse's benefit
or a portion of the lump sum benefit payable.
[15]
The Applicant was invited to provide
proof to the Fund in support of her allegations that she was a
dependant of the deceased, but
she failed to do so. The Fund
concluded that probabilities were overwhelming that she was not
dependant on the deceased as she
and the deceased had been estranged
since 2011.
[16]
The Fund accordingly made a decision on
7 August 2014 in terms of which no portion of the spouse's pension or
lump sum death benefit
was awarded to the Applicant. The decision was
communicated to the Applicant on 8 August 2014.
[17]
The Applicant was aggrieved by the
Fund's decision and lodged a complaint with the Adjudicator In terms
of section 30A of the Act
on 26 September 2014.
[18]
On 4 February 2015 Applicant's attorney
sent a letter, and for the first time attached affidavits purportedly
by the deceased's
brother, cousin a friend and a person who alleged
that she witnessed the marriage, confirming her version of events. In
this letter
the deceased's father's version that contradicted the
Applicant's version was rejected on the basis that it was alleged
that he
was deceased. The Adjudicator stated
inter
alia
that an official contacted the
deceased's father, who was indeed alive and well and stated in an
affidavit dated 18 February 2015
that the deceased was living with Ms
Mphanga at the time of his death.
[19]
After considering the Applicant's
complaint together with submissions by the Fund, the Adjudicator
dismissed the Applicant's complaint
in a comprehensive determination
dated 26 March 2015. The Adjudicator set aside some of the other
decisions of the Fund, but those
are not relevant to this
application.
THE
DELAY IN BRINGING THE APPLICATION
[20]
In terms of section 30P of the Act, a
party who feels aggrieved by a determination of the Adjudicator may
apply within six weeks
after the date of the determination, to apply
to the division of the High Court, which has jurisdiction for relief.
[21]
Section 30P of the Act provides as
follows:
"30
P Access to court
(1)
Any party who feels aggrieved by
a determination of the Adjudicator may, within six weeks after the
date of the determination, apply
to the division of the High Court
which has jurisdiction, for relief, and shall at the same time give
written notice of his or
her intention so to apply to the other
parties to the complaint.
(2)
The division of the High Court
contemplated in subsection (1) may consider the merits of the
complaint made to the Adjudicator under
section 30A (3) and on which
the Adjudicator's determination was based, and may make any order it
deems fit.
(3)
Subsection (2) shall not affect
the court's power to decide that sufficient evidence has been adduced
on which
a
decision
can be arrived at, and to order that no further evidence shall be
adduced."
[22]
The Applicant did not expressly rely on
section 30P in her original notice of motion and founding affidavit
when her application
was first launched in 2016. It was only in
January 2018 when the Applicant filed an amended notice of motion,
that she stated that
it was her intention to rely on section 30P of
the Act. This was only done after the Fund filed its answering
affidavit. It must
be noted that the Fund filed its answering
affidavit on 6 September 2017. It was submitted that the amended
notice of motion was
defective and irregular in that no notice of
intention to amend was filed in terms of Rule 28(1) of the Uniform
Rules of Court.
[23]
Section 30P provides that the
application to the High Court must be brought within six weeks, after
the date of the determination.
The Adjudicator's determination was
made on 26 March 2015. The Applicant's application was launched on 1
December 2016 and was
served on 8 December 2016. The Applicant's
application was therefore launched approximately 20 months after the
date of the determination.
[24]
It was submitted by the Fund that, even
if the Applicant's application was brought in terms of the Promotion
of Administrative Justice
Act 3 of 2000 ("PAJA") or the
common law, it would still be out of time. Section 7 of PAJA provides
that review applications
must be brought within 180 days, whereas
under the common-law review applications must be brought within a
reasonable time. What
is reasonable will depend on the circumstances
of the case.
[1]
[25]
Section 9(1) of PAJA provides that the 180-days may be extended for a
fixed period, by agreement between
the parties or, failing such
agreement, by a court or tribunal on application by the person or
administrator concerned. Such an
application will be granted if it is
in the interest of justice.
[2]
[26]
Initially the Applicant failed to
provide any reasons for the delay. Only long after the answering
affidavit was filed (on 6 September
2017), an amended notice of
motion was served on 18 January 2018. The Applicant in this amended
notice of motion asked this Court
to condone the lengthy delay in
bringing her application.
[27]
In the supplementary founding affidavit,
which was attached to her amended notice of motion, she merely stated
that she could not
bring the application in the six weeks required by
the Act, "in such haste." She also blamed financial
constraints for
the delay, as she alleged that she was unemployed and
the deceased took care of all her household needs. Interestingly
enough she
was represented by an attorney throughout the process,
despite her alleged financial constraints. The same attorneys who
appeared
for her at this hearing have been representing her as far
back as February 2015, and prior to that she was represented by
another
firm of attorneys. No explanation whatsoever was given why
these attorneys failed to timeously launch the application. One would
have expected an affidavit by the attorneys to confirm the fact that
Applicant did not have the necessary finances to proceed with
the
application. One would also have expected more detail about her
alleged financial constraints.
[28]
This Court is empowered to grant
condonation for the late filing of a section 30P application.
[3]
However, as the SCA said in
Urban
Tolling Alliance v South African National Roads Agency Limited
[4]
with regards to statutory time
limits, absent the extension of the statutory time-limit, the Court
has no jurisdiction to entertain
the review.
"[26]
At common law application of the undue delay rule required
a
two stage
enquiry. First, whether there was an unreasonable delay and, second,
if so, whether the delay should in all the circumstances
be condoned
(see eg Associated Institutions Pension Fund and others v Van Zyl and
others
2005 (2) SA 302
(SCA) para 47). Up to
a
point, I think, s
7(1) of PAJA requires the same two stage approach. The difference
lies, as I see it, in the legislature's determination
of
a
delay exceeding
180 days as per se unreasonable . Before the effluxion of 180 days,
the first enquiry in applying s 7(1) is still
whether the delay (if
any) was unreasonable. But after the 180 day period the issue of
unreasonableness is pre-determined by the
legislature; it is
unreasonable per se. It follows that the court is only empowered to
entertain the review application if the
interest of justice dictates
an extension in terms of s
9.
Absent such
extension the court has no authority to entertain the review
application at all. Whether or not the decision was unlawful
no
longer matters. The decision has been 'validated' by the delay (see
eg Associated Institutions Pension Fund para 46). That of
course does
not mean that, after the 180 day period, an enquiry into the
reasonableness of the applicant's conduct becomes entirely
irrelevant. Whether or not the delay was unreasonable and, if so, the
extent of that unreasonableness is still
a
factor to be
taken into account in determining whether an extension should be
granted or not (see eg Camps Bay Ratepayers' and Residents'
Association v Harrison
[2010] 2 All
SA
519
(SCA) para
54)."
[29]
In
Darries v Sheriff, Magistrate's
Court, Wynberg and another,
[5]
the guiding principles applicable in
the exercise of the Court's discretion to grant condonation were set
out and it was stated
that:
"I will content myself
with referring, for present purposes, only to factors which the
circumstances of this case suggest should
be repeated. Condonation of
the non-observance of the Rules of this Court is not a mere
formality. In all cases some acceptable
explanation, not only of, for
example, the delay in noting an appeal, but
also,
where this is the
Case, any delay in seeking condonation , must be given. An appellant
should whenever he realises that he has not
complied with
a
Rule of Court
apply for condonation
as
soon as possible.
Nor should it simply be assumed that, where non-compliance was due
entirely to the neglect of the appellant's
attorney, condonation will
be granted. In applications of this sort the appellant's prospects of
success are in general an important
though not decisive
consideration. When application is made for condonation it is
advisable that the petition should set forth
briefly and succinctly
such essential information as may enable the Court to assess the
appellant's prospects of success. But appellant's
prospect of success
is
but
one of the factors relevant to the exercise of the Court's
discretion, unless the cumulative effect of the other relevant
factors
in the case is such as to render the application for
condonation obviously unworthy of consideration. Where non-observance
of the
Rules has been flagrant and gross an application for
condonation should not be granted, whatever the prospects of success
might
be."
[30]
In
Gqwetha
v Transkei Development Corporation Ltd and others,
[6]
the following was said regarding the
importance of bringing a review application within a reasonable time:
"[22] It is important for
the efficient functioning of public bodies (I include the first
respondent) that
a
challenge to the
validity of their decisions by proceedings for judicial review should
be initiated without undue delay. The rationale
for that longstanding
rule
-
reiterated most
recently by Brand JA in Associated Institutions Pension Fund and
Others v Van Zyl and Others
2005 (2) SA 302
(SCA) at 321
-
is two fold:
First, the failure to bring
a
review within
a
reasonable time
may cause prejudice to the responden.t Secondly, and in my view more
importantly, there is a public interest element
in the finality of
administrative decisions and the exercise of administrative
functions. As pointed out by Miller JA in Wolgroeiers
Afslaers (Edms)
Bpk v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A) at 41E-F (my
translation) :
'It is desirable and important
that finality should be arrived at within
a
reasonable time
in relation to judicial and administrative decisions or acts. It can
be contrary to the administration of justice
and the public interest
to allow such decisions or acts to be set aside after an unreasonably
long period of time has elapsed
-
interest
reipublicae ut sit finis litium.
.
. .
Considerations
of this kind undoubtedly constitute part of the underlying reasons
for the existence of this rule.'
[23] Underlying that latter
aspect of the rationale is the inherent potential for prejudice, both
to the efficient functioning of
the public body and to those who rely
upon its decisions, if the validity of its decisions remains
uncertain. It is for that reason
in particular that proof
of
actual prejudice
to the respondent is not
a
precondition for
refusing to entertain review proceedings by reason of undue delay,
although the extent to which prejudice has been
shown is a relevant
consideration
that might even be decisive where the delay has been relatively
slight (Wolgroeiers Afsfaers, above, at 42C)."
[31] Some
seven years have passed since the deceased died and four and a half
years since the Adjudicator
made her determination. A perusal of the
papers in this instance point to a total lack of information
regarding legitimate causes
for the delay in bringing the
application. Such failure cannot be merely overlooked. The delay was
not only devoid of sound reasons,
but was also for an unreasonable
long period of time, which militates against the principle of
bringing administrative matters
to finality. Not only the rights and
duties of the Fund are at stake, but also those of the beneficiaries,
who could be prejudiced
by the delay.
[32]
The Applicant did not place any
persuasive information before the Court to enable the Court to
exercise its discretion to grant
condonation for the delay and as a
result the application should be dismissed on this basis alone, but
it is appropriate to deal
with her chances of success on the merits
before coming to a final conclusion.
DISTRIBUTION OF DEATH BENEFITS
UNDER THE ACT AND THE RULES OF THE FUND
[33]
Section 37C of the Act deals with the
distribution of death benefits payable upon the death of a member. It
provides as follows:
"37C Disposition of pension
benefits upon death of member
(1)
Notwithstanding
anything to the contrary contained in any law or in the rules of a
registered fund, any benefit (other than
a
benefit payable as
a
pension to the spouse or child of the
member in terms of the rules of
a
registered fund, which must be dealt
with in terms of such rules) 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 sections 37A (3) and 370 , 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 fund,
to one of such dependants or in proportions to some of or all such
dependants ..
.."
[34]
Section 37C prescribes the manner in
which lump-sum benefits must be dealt with, and provides that it will
be distributed between
the deceased member's dependants and nominees
in such proportions as determined by the board of the Fund in the
exercise of its
discretion. Section 37C further provides that
benefits payable as a pension to spouses and children shall be paid
in terms of the
Rules of the Fund.
[35] A
"dependant" is defined in section 1 of the Act as follows:
'"dependant',
in
relation to
a
member, means-
(a)
a
person in respect of whom the member
is legally liable for maintenance;
(b)
a
person in respect of whom the member
is not legally liable for maintenance, if such person-
(i)
was,
in the opinion of the board, upon the death of the member in fact
dependent on the member for maintenance;
(ii)
is
the spouse of the member;
(iii)
is
a
child
of the member, including
a
posthumous child, an adopted child
and a child born out of wedlock;
(c)
a
person in respect of whom the member
would have become legally liable for maintenance, had the member not
died;"
[36]
The term "spouse" is defined
as follows in the Rules of the Fund:
"SPOUSE"
shall
mean at the date of the death of the MEMBER, PENSIONER or FLEXIBLE
ANNUITANT the person who
was
his/her:
(a)
legal spouse; or
(b)
partner of
a
union according to customary law; or
(c)
partner of
a
union recognised
as
a marriage under any religion; or
(d)
life partner in
a
relationship which the TRUSTEES
regard
as
having
been permanent, provided that in making such determination the
TRUSTEES must have regard to whether or not there
was,
at the relevant date or dates,
cohabitation as well
as·
other factors which they, in their
sole
discretion,
regard as being relevant;
at the time that the PENSIONER
retired or at the date that the MEMBER or FLEXIBLE ANNUITANT died,
provided that:
(i)
the
SPOUSE of
a
PENSIONER
shall be the SPOUSE as notified by him to the FUND at the date of
his/her retirement;
(ii)
the
MEMBER or FLEXIBLE ANNUITANT notified the FUND of the existence of
a
SPOUSE prior to his/her death; unless
the TRUSTEES, in their sole discretion, decide that such notification
was not necessary in
the particular circumstances;
(ii)
the
SPOUSE
of
a
FLEXIBLE
ANNUITANT shall be the SPOUSE at the date of his/her death unless
notified differently by him to the FUND;
(iii)
there
may be mor
e than one (1) person
qualifying as SPOUSE"
[37]
The Applicant alleged that she was
dependant on the deceased until his death, but could not provide any
supporting evidence, notwithstanding
the Fund having requested her to
provide such evidence, prior to it making a final allocation. Neither
in her founding papers or
in her supplementary founding papers, did
the Applicant provide acceptable proof that she resided with the
deceased and that he
supported her financially.
[38]
As the Fund pointed out in its answering
affidavit, the Applicant failed to produce evidence in the form of
letters sent jointly
to her and the deceased, joint-accounts, proof
of things purchased together, proof of the Applicant being a
dependant in any insurance
policy or medical aid, proof of any
financial support of any kind, and proof that they co owned any
property, movable or immovable.
If the Applicant lived with the
deceased, as she alleged in her founding affidavit, one would have
expected that she would be able
to provide this proof. The Applicant
therefore failed to show that she qualified as a dependant of the
deceased at the time of
the deceased's death.
[39] That
leaves the question of whether the Applicant qualified as the
deceased's spouse. In her founding
affidavit, the Applicant relies
only on the allegations that she was married to the deceased in terms
of customary law in November
2010. The deceased was however married
to Ms Masina, in terms of civil law, they got married on 30 September
2004. The Fund stated
that due to the deceased's then existing
marriage to Ms Masina, the customary marriage between the Applicant
and the deceased was
void
ab
initio
and
therefore invalid.
[40]
Section 10
of the
Recognition of Customary Marriages Act 120 of 1998
reads as follows:
"10 Change
of marriage system
(1)
A man and
a
woman between whom
a
customary marriage subsists are
competent to contract a marriage with each other under the Marriage
Act, 1961 (Act 25 of 1961),
if neither of them is a spouse in a
subsisting customary marriage with any other person.
(2)
When
a
marriage is concluded as contemplated
in subsection (1) the marriage is in community of property and of
profit and loss unless such
consequences are specifically excluded in
an antenuptial contract which regulates the matrimonial property
system of their marriage.
(3)
Chapter Ill and sections
18, 19, 20 and 24 of Chapter IV of the Matrimonial Property Act, 1984
(Act 88 of 1984), apply in respect
of any marriage which is in
community of property as contemplated in subsection (2).
(4)
Despite subsection (1), no
spouse of a marriage entered into under the Marriage Act, 1961, is,
during the subsistence of such marriage,
competent to enter into any
other marriage."
[41]
In
Kambule v The
Master and Others
[7]
the Court
referred to an unreported judgment of
Mvunelo
v Minister of Home Affairs (unreported Transkei Division case No
744/2002, dated 20 July 2005)),
where
the following was stated:
"'In my opinion it is the
aim of s 10(4) of the Act to prohibit a party who is a spouse in a
marriage entered into under the
Marriage Act, 1961, to enter into any
other marriage, which includes a customary marriage, obviously as
from the commencement of
that Act, ie, as from 15 November
2000...”
[8]
[42]
The Applicant's alleged customary
marriage was therefore unlawful and invalid. She failed to prove that
she was a spouse as defined
in the Rules of the Fund or section 1 of
the Act. Accordingly, the Applicant failed to prove that she was
either a dependant on,
or a spouse of the deceased.
CONCLUSION
[43]
There is accordingly no legal basis to
interfere with the Adjudicator's decision to exclude the Applicant as
a beneficiary of the
deceased's death benefit. There is equally no
basis on which the Adjudicator's determination can be reviewed and
set aside. The
Applicant failed to convince the Court that the
condonation application should be granted as there was no proper
explanation for
the delay, nor did she have a reasonable prospect to
succeed on the merits. Consequently the application must fail.
[44]
The Applicant's application should thus
be dismissed with costs.
[45]
The following order is made:
1.
The
application for postponement is dismissed.
2.
The
application is dismissed.
3.
T
he
Applicant is to pay the costs of the First Respondent, which costs
will include the costs of the application for postponement.
The costs
will also include the costs of senior counsel.
RG TOLMAY
JUDGE OF THE HIGH COURT
DATE
OF HEARING:
13 JUNE 2019
DATE
OF JUDGMENT:
27
JUNE 2019
ATTORNEY
FOR PLAINTIFF:
ZEHIR OMAR
ADVOCATE
FOR PLAINTIF:
ADV PW SPRINGVELDT
ATTORNEY
FOR FIRST
DEFENDANT:
SHEPSTONE & WYLIE
ADVOCATE
FOR FIRST
DEFENDANT:
ADV S KHUMALO & AND D GONDO
[1]
Associated Institutions Pension Fund and others v Van Zyl and others
2005 (2) SA 302
(SCA) at paragraph 46 -48.
[2]
Beweging vir Christelik-Volkseie Onderwys and others v Minister of
Education and others
[2012] 2 All SA 462
(SCA) para 31.
[3]
See , Samancor Group Pension Fund v Samancor Chrome and others
[2010] 4 All SA 297
(SCA)at p301 para 20 where the SCA described the
source of the Court's power as follows:
"[20]
The high court, because of its inherent jurisdiction, has powers to
governments own procedures.
The said jurisdiction pertains not only
to non-compliance with the Rules of Court but also to statutory time
limits
"
[4]
[2013] 4 All SA 639
(SCA) par 26
[5]
1998 (3) SA 34
(SCA) at 40H-41E (also reported at
(1998) JOL 2154
;
Saloojee
&
another NNO v Minister of Community
Development
1965 (2) SA 135
(A) at 138H
[6]
Gqwetha v Transkei Development Corporation Ltd and others
2006
(2) SA 603
(SCA) paras 22- 23 [also reported at
[2006] 3 All SA 245
(SCA) - Ed]. See too
Associated Institutions Pension Fund and
others v Van Zyl and others
2005 (2) SA 302
(SCA) para 46 (also
reported at (2004]
4 All SA 133
(SCA) - Ed).
[7]
2007 (3) SA 403
(E) at p411 at par E-1
[8]
See also, Cronje and Heaton, South African Family Law, Second
Edition, Lexis Nexis, at p207.