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[2017] ZAGPPHC 38
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Mmileng v Government Employees Pension Fund and Others (7397/16) [2017] ZAGPPHC 38 (8 February 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
8/02/2017
CASE
NO: 7397/16
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MASEGO
EVELINE MMILENG
Applicant
and
GOVERNMENT
EMPLOYEES
First
Respondent
PENSION
FUND
SOUTH
AFRICAN NATIONAL
Second
Respondent
DEFENCE
FORCE
MINISTER
OF DEFENCE AND
Third
Respondent
MILITARY
VETERANS
JUDGMENT
De
Kok. AJ
1.
The first respondent applies for leave to appeal the judgment
and order handed down by me on 15 December 2016.
2.
As is reflected in the judgment, much of the argument at the
hearing of the application was devoted to the issue of whether the
first respondent's decision not to pay the applicant her pension
benefits in respect of the period of 13 January 1978 to 31 August
1989 constituted administrative action and whether the applicant was
limited to seeking a judicial review of this decision. In
terms of
its notice of application for leave to appeal (served on 11 January
2017) and a supplementary notice of application for
leave to appeal
(served on 16 January 2017) the first respondent does not seek leave
to appeal in respect of my findings on this
issue.
3.
The application for leave to appeal is based on essentially
two grounds:
3.1
That I erred in finding that the applicant had proven that she was a
contributing member of the previous fund (as defined in
paragraph 2.2
of the judgment) for the period of 13 January 1978 to 31 August 1989.
In this regard the first respondent contends
that it has raised a
real and
bona fide
dispute of fact, that this dispute was
foreseen by the applicant and that the application ought therefore to
have been dismissed;
and
3.2
That I erred in finding that the applicant had provided satisfactory
proof of her aforesaid membership to the first respondent's
Board for
the purposes of Rule 6.
4.
As to the first ground:
4.1
This argument was dealt with in paragraphs 9 to 12 of the judgment.
4.2
In arguing the application for leave to appeal Ms Qofa, on behalf of
the first respondent, repeatedly submitted that the applicant
had
produced no "proof' of her membership for the period prior to
September 1989.
4.3
This submission cannot be
sustained. The applicant has given evidence under oath, as to a
matter falling within her personal knowledge,
that she has
contributed to the relevant pension fund throughout her employment by
Government (being initially the former Bophuthatswana
government and
thereafter the RSA government). It is common cause that such
employment commenced on 13 January 19781
[1]
and continued until her retirement in October 2014. There is nothing
inherently improbable in her version. It is supported by such
historical documents as the applicant has been able to find (being
some salary advices and the letter of 20 December 1996).
4.4
The first respondent's denial of the applicant's assertion of fact is
based only on the fact that it has no records of her membership
prior
to 1996. However we know that these records are wrong (or at -least
incomplete), as the first respondent accepts that the
applicant was a
contributing member since September 1989, notwithstanding that this
does not accord with its internal records.
4.5
The proper approach is set out in
Wightman t/a JW Construction v
Headfour (Pty) Ltd
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) as follows:
"A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise
the dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can be expected
of him. But even
that may not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis
is laid for disputing
the veracity or accuracy of the averment."
(at para 13)
.
4.6
The issue in dispute is not one which one would expect to fall within
the peculiar knowledge of the applicant. This is so because
one would
expect that on dissolution of the previous fund and the transfer of
its members and assets and liabilities to the first
respondent, its
records would also have been transferred to the first respondent. The
first respondent does not deal with this
issue (i.e. what records it
received from the previous fund) in its answering affidavit. If it is
assumed in favour of the first
respondent that it received no records
and that the disputed issue is thus one which does fall within the
peculiar knowledge of
the applicant, it was incumbent on the first
respondent to advance some basis on which the veracity or accuracy of
the applicant's
evidence is disputed. No such basis is advanced or
suggested. The first respondent does not rely on any improbability in
the applicant's
evidence, nor does it suggest that there is evidence
which may be elicited from the applicant or a third party at a trial
which
may cast doubt on the applicant's evidence.
4.7
It was argued that my acceptance of the applicant's evidence as being
sufficient would open a floodgate of faise claims against
the first
respondent based only on the "say so" of its members. If
there is no valid suggestion that the applicant's
claim is a
fraudulent one, she cannot and should not be deprived of her right to
relief because of the possibility that other people
may submit
fraudulent claims. My judgment is specific to the facts of this case.
If the respondent has any reason to believe that
a claim made against
it by another member is a false one, this judgment will not bar it
from declining such a claim.
4.8
In the circumstances I am of the view that this ground has no
reasonable prospects of success on appeal.
5.
As to the second ground:
5.1
This argument is dealt with in paragraph 13 of the judgment.
5.2
The first respondent, in its heads of argument in the application for
leave to appeal, accepted that "satisfactory proof
connotes an
objective standard. This is clearly in accordance with the
authorities.
5.3
The first respondent however contends that I erred in finding that
the applicant had provided satisfactory proof to the Board.
Specifically the first respondent contends, based on my finding in
paragraph 13.4 of the judgment, that I had erred in ordering
the
first respondent to "pay a benefit the proof to the right of
which is 'impossible' for the applicant to provide".
5.4
This contention entails a misconstruction of my finding. I have
found, for the reasons dealt with in the judgment, that the
applicant
has proven,
on a balance of probabilities, that she was a
contributing member of the previous fund as from 13 January 1978.
A
fortiori
that I did not find that it was impossible for her to
prove this fact. Paragraph 13.4 of my judgment dealt with the issue
of whether
the Board could, in addition, require from her that she
provide salary advices for the period of 13 January 1978 to 31 August
1989
before it would be "satisfied". I held that, applying
an objective standard, no reasonable Board would additionally demand
proof which it would be impossible to produce.
5.5
The first respondent has not suggested, in its answering . affidavit
or in argument, that there is in any other "proof',
other than
the decades' old salary advices, that would have constituted
"satisfactory" proof. I do not consider that
there is any
reasonable prospect that another Court would find that, in the
circumstances of this case, a reasonable Board would
be justified in
demanding these decades' old salary advices.
5.6
In the circumstances I am of the view that this ground too lacks any
reasonable prospects of success on appeal.
6.
I have given consideration to the submission that I ought, in
any event, to give leave to appeal on the basis of
section
17(1)(a)(ii)
of the
Superior Courts Act, 10 of 2013
. This section
provides that, independently of the prospects of success of the
proposed appeal, leave to appeal may be granted when
there
is a
"compelling reason" for the appeal to be heard.
6.1
The compelling reasons advanced by the first respondent in its heads
of argument are:
6.1.1
That the matter raises a constitutional issue (being the
interpretation of
Rule 6
which, so it is contended, constitutes
delegated legislation); and
6.1.2 hat
the applicant ought to have foreseen a material dispute of fact.
6.2
I do not follow the first respondent's argument as to the second
reason. It is a contention which has already been dealt with,
and
rejected, as far as the merits of the proposed appeal are concerned.
6.3
As far as the first reason is concerned, there is in fact no dispute
as to the proper interpretation of
Rule 6.
Rather there is a dispute
as to the practical application of the objective standard envisaged
by the Rule - i.e. whether, on the
facts of this case, the applicant
provided satisfactory proof. I do not consider that this constitutes
a compelling reason to grant
leave to appeal.
6.4
In argument, the spectre of a floodgate of litigation (referred to in
paragraph 4.7 above) was also raised as a compelling reason
why leave
to appeal should be granted. The dispute between the applicant and
the first respondent arises, in the main, because
the first
respondent apparently has no records of the applicant's membership
and contributions to the previous fund (notwithstanding
that it is
common cause that the applicant was since at least September 1989 a
contributing member of such fund). Why this is so
is not explored in
the answering affidavit. · There is no indication in the
affidavits whether this is a systemic problem
or whether it is unique
to the applicant. In these circumstances there is no basis on which I
can find that this decision will
impact on other members and their
claims.
6.5
There is accordingly no compelling reason to grant leave to appeal.
____________________
A
DE KOK
Acting
Judge of the High Court, Gauteng Division, Pretoria
ORDER
7.
I make the following order:
The
first respondent's application for leave to appeal is dismissed with
costs.
Date
of hearing
: 26 January 2017
Date
of judgment
: 8 February 2017
Appearances
For
applicant:
Mr N
Mhlongo instructed by Mashamaite MR Attorneys
For
first respondent: Ms Qofa instructed by Thipa Denenga Inc c/o
Savage
Jooste & Adams
[1]
Paragraph 3.1 of my judgment contains a typographical error. The
year 1987 should read 1978