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[2017] ZAGPPHC 157
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Municipal Employees' Pension Fund and Another Mudau and Another (61555/14) [2017] ZAGPPHC 157 (29 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVSION, PRETORIA
29/3/2017
CASE
NO: 61555/14
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
In
the matter between:
MUNICIPAL
EMPLOYEES' PENSION FUND FIRST
APPLICANT
AKANI
RETIREMENT AND ADMINISTRATORS
SECOND
APPLICANT
and
PENDELANI
MIDAS
MUDAU FIRST
RESPONDENT
VH
EMBE DISTRICT MU
NICIPALITY SECOND
RESPONDENT
JUDGMENT
RAULINGA
J,
1.
In their Notice of Motion the applicants seek the
following relief:
1.1
Setting aside paragraph 6 of the
award (''the order'') of the Pension Fund
Adjudicator (''the
Adjudicator'') on 7 July 2014 in the dispute
between the first respondent (as applicant) and the first and
second applicants
and second respondent (as first, second
and third respondent), respectively.
1.2
Replacing the order of the Adjudicator with the
following order:
"The claim of the
first respondent (applicant in the proceedings before the
Adjudicator) is dismissed.
1.3
Ordering whomsoever of the respondents that
opposes this application to pay applicants' costs.
2.
As it is evident from the Notice of Motion,
this application is brought in terms of section 30P of the Pension
Funds Act,
No 26 of 1956 (''the Act'') to review and set aside a
decision and order of the Adjudicator, made in favour of the first
respondent,
on 7 July 2014, (''the determination''). n that
determination the Adjudicator effectively decided that an amended
Rule adopted
by the first applicant, the Municipal Employees Pension
Fund (''the Fund''), and registered by the Registrar of the Financial
Services
Board (''the Registrar''), should not be applied against the
first respondent. Instead, the Adjudicator applied the old,
pre-amended
Rule.
3.
The applicants submit that, as a result, the
first respondent became entitled to receive a withdrawal benefit,
consequent on his
withdrawal from the Fund, of more than twice the
amount he was entitled to under the amended Rule.
4.
The Fund and its administrator (''Akani'') submit
that the Adjudicator's decision is liable to review for two
independent reasons:
4.1
First, the Adjudicator lacked jurisdiction to
determine that the effective date of the amended Rule was
inapplicable and her decision
is consequently invalid;
4.2
Second, and in any event, the Adjudicator's
decision was based on material errors of fact and law; and
4.3
Therefore, the determination is liable to be
reviewed and set aside, and the amended Rule falls to be applied
against the first
respondent.
5.
On the other hand, the first respondent submits
that, in terms of section 30H of the Act, the Adjudicator has
jurisdiction to determine
the dispute because the first respondent
lodged a complaint as defined in the Act. Furthermore, the
determination is valid and
correct in law, because, the withdrawal of
benefits occurred before the amended Rule was registered by the
Registrar. The application
should therefore, be dismissed with costs.
6.
Parties are ad idem on the factual matrix of this
case. During 2013, the Fund received a statutory actuarial advice to
amend its
withdrawal benefit structure. At the time Rules 37(1)(a)
and (b) of the Fund's Rule provided for withdrawal benefits to be
paid
at a rate of three times the value of contributions made ("the
Rule''). According to the actuarial report, that rate meant
that
withdrawal benefits exceeded the accumulated contributions received
and the Fund consequently ran the risk of not meeting
its
liabilities. Consequently, the Fund's actuaries recommended an
immediate reduction of the withdrawal benefits offered by the
Fund.
7.
As a result of this advice and on the 21 June
2013, the management committee of the Fund determined to amend Rules
37(1)(a) and
(b) with effect from 1April 2013, such, that the
withdrawal benefit would be calculated at a rate of 1.5 times
contributions ('the
Rule amendment" or "amended Rule").
8.
On 1July 2013, the Fund distributed a circular to
its members explaining the need for the Rule amendment, and notifying
them that
the withdrawal benefit would be amended with effect from 1
April 2013.
9.
Shortly thereafter, on 22 July 2013 the Fund
applied to the Registrar for Rule amendment to be registered.
Ultimately, the Registrar
registered the Rule amendment some eight
months later, on 1April 2014, but afforded it an effective date of 1
April 2013, retrospectively.
10.
This must be understood against the backdrop that
the first respondent resigned from employment with the second
respondent, with
effect form 31 May 2013 and consequently also
withdrew from the Fund. His withdrawal benefit was calculated and
paid on 16 October
2013 in accordance with the amended Rule.
11.
The first respondent, dissatisfied with his
withdrawal benefit, lodged a complaint with the Adjudicator on 2
December 2013, arguing
that the Fund had decreased his withdrawal
benefit without any prior communication and that he was entitled to
an amount of R 2
140 313.19 (being the Fund credit reflected in his
benefit statement of 31 October 2012) instead of R 648 637.42 which
was paid
to him on 16 October 2013.
12.
The first applicant sent a Circular to its
members regarding the amendment of Rule 37 of its Rules on 1July
2013. At that time the
first respondent was no longer a member of the
first applicant and was already notified by the second respondent. As
already stated
above, on 1April 2014 the Registrar approved and
registered the amendment Rule 37 with retrospective effect from 1
April 2013.
After the complaint was lodged with her, the Adjudicator
made a determination in favour of the first respondent on 7 July
2014.
13.
When the matter commenced, the applicants moved
an application for condonation from the bar, for the late filing of
the application
(which was one day after the six week period
laid down by section 30P of the Act). The first respondent having
consented to
the condonation, I accordingly granted same.
14.
I start first with the nature of the complaint
which was lodged with the Adjudicator and the content of the
determination made by
her on 7 July 2014.
15.
The applicants submit that the first respondent's
complaint lodged with the Adjudicator on 2 December 2013, was that
the Fund had
"decreased his withdrawal benefit without any prior
communication" and that he was entitled to an amount R 2 140
313.19
(being the Fund credit reflected in his benefit statement of
31 December 2012).
16.
In her determination, the Adjudicator captured
the first respondent's complaint as follows:
"The complainant
submits that the first respondent decreased his withdrawal benefit
without any prior communication. The complainant
further submits that
the withdrawal benefit due to him at
the time of his
resignation was
R 2 140 313.19. However, he was only paid a withdrawal benefit
of R 646 437.42 by the first respondent,
he was advised that the
benefit has been reduced as per advice of its actuary..."
17.
Section 1of the Act defines a "complaint"
as:
"relating to the
administration of a fund the investment of its funds or the
interpretation and application of its rules, and
allegation.
(a)
that a decision of the fund or any person
purportedly taken in terms of the rules was in excess of the powers
of that fund or person,
or an improper exercise of its powers;
(b)
that the complainant has sustained or may sustain
prejudice in consequence of the maladministration of the fund by the
fund or any
person, whether by act or omission;
(c)
that a dispute of fact or law has arisen in
relation to a fund between the fund or any person and the
complainant; or
(d)
that an employer who participates in a fund has
not fulfilled its duties in terms of the rules of the fund, but shall
not include
a complaint which does not relate to a specific
complainant."
18.
It seems to me that the subsections in the
definition of a "complaint" are disjunctive and not
conjunctive. This means
that the presence of one allegation will
qualify the alleged "complaint" as a "complaint"
.In my view, the
"complaint" as lodged by the first
respondent to the Adjudicator and captured by her in her
determination is encapsulated
in section 1of the Act that defines a
"complaint". This is encapsulated in subsections (a) and
(b) of the section, in
that the complainant by inference alleges that
the decision of the fund or any person purportedly taken in terms of
the rules improperly
exercised its powers and further, that the
complaint relates to the application of the rules alleging a dispute
of fact or law.
The complaint, in the main relates to the
administration of the fund and the interpretation and application of
its rules.
19.
It is my considered view, that the submission by
the applicants that the Adjudicator lacks jurisdiction in that the
purported "complaint"
didn't constitute a complaint, is
misplaced.
20.
In support of their argument, the appellants rely
on the decision in Shell and BP SA Petroleum Refiniries v Murphy NO
2001 (3) SA 683(0)
“Shell and BP''). As stated in Shell and BP
case, it is indeed true that the Adjudicator is a creature of the
Act. His function
is to consider complaints lodged with him in terms
of section 30A (5) of the Act. In Shell and BP, the matter pertained
to the
payment of contributions by the employer to the fund, in which
the actuary had advised the employer to take a contribution holiday
in view of actuarial surplus due to the actual investment return that
had exceeded the assumed investment returns. The Adjudicator's
determination in that case involved administration expenses and the
maintenance of the solvency of the fund. The Court in Shell
and BP
correctly held that the matter did not relate to the administration
of the fund, the investment of the fund and the interpretation
and
application of its rules. Moreover, the Court was more concerned
about the correctness of the decisions and the consequent
determination. The main thrust of the complaint was the issue of the
administration expenses and in addition the respondent, in
that case,
complained that the applicant was taking advantage of the fund's
substantial surplus to the prejudice of the members'
expectations.
21.The
context of the case must be read with reference to what was said in
TEK Corporation Provident Fund and Others v Lorenz
1999 (4) SA 884
(SCA, in which the Court stated
inter alia,
that 'the Court a quo overlooked the
distinction between a defined benefit scheme in which the employer's
contribution is fixed
and must be paid irrespective of the state of
the fund, and a scheme like the present in which it is not and
liability to contribute
arises only when it is necessary in the
estimation of the fund's actuary to venture the financial soundness
of the fund. In the
former class of the case there is an existing and
continuing liability to contribute and using the existence of a
surplus to avoid
the making of the contributions could not be
justified. In the latter class of case, of which the present is an
example, there
is no predetermined and continuing liability to
contribute. The liability arises only when need arises. Present a
surplus, absent
a need and absent a liability. The employer is
therefore not being relieved of a liability and is receiving no
benefit to the detriment
of the fund or members'.
22.
In casu, the employer is not entitled to a
contribution holiday, as long as a member is still on its roll of
employees, the employer
is obliged to contribute, which in turn
entitles the first respondent to his benefits which have been
accumulating since his first
day of employment in 2003 until his
departure in May 2013.
23.Although
there are certain similarities between the facts in this case and
those in Joint Municipal Pension Fund v Grobler and
others
2007 (5)
SA 629
(SCA) (''Grobler'') one must also recognize certain
distinguishing features in both of them.
24.
In Grobler, before the first respondent (i.e.
Grobler) was retrenched he was in the employ of the first appellant
and was a member
of the second appellant. Just under 14 months before
his retrenchment, the rules of the second appellant were amended in a
manner
which had the effect of very considerably reducing the
retrenchment benefit payable to the first respondent. The first
respondent
laid a series of complaints with the pension fund
Adjudicator but the Adjudicator decided that, because the amendment
had been
registered, he had no jurisdiction to consider the
complaints.
25.
Whereas in this matter, the first respondent
resigned from second respondent with effect from 31 May 2013 and was
not aware of the
statutory Actuarial Report which was received by the
Fund during February 2013. The first applicant, on 21 June 2013,
resolved
during its meeting to amend its Rule 37 based on the
Statutory Actuarial Valuation Report to apply with retrospective
effect from
1 April 2013. The first applicant only sent the circular
to its members on 1 July 2013 regarding the amendment of Rule 37 of
its
Rules, which was not received by the first respondent. At that
time the first respondent was no longer a member of the first
applicant
and was already notified by the second respondent. The
first applicant only applied to register the amended Rule on 22 July
2013,
which was only registered on 1 April 2014 with retrospective
effect from 1 April 2013. By that time the first respondent was
already
paid an amount of R 646 437.42 on 16 October 2013 and had
also lodged a complaint on 2 December 2013 with the Adjudicator. I
will
deal with the effect of this distinction herein below.
26.
As stated above, one other distinction between
this case and Grobler is that in Grobler the Adjudicator declined to
consider the
complaints, because at the time the complaints were
lodged with him, the amendments were already registered by the
registrar. The
SCA on hearing the appeal in Grobler and after
considering the provisions of section 12 of the Act, decided to grant
relief on
the complaint regarding the invalidity of Rule 49 of the
rules, stating that "the reference in Rule 49 to 'established
benefit'
is, in my opinion, a reference to the benefit that has
accumulated at the time the amendment is made. It is not a reference
to
the right to claim a benefit that has finally matured. As
indicated that right might never arise. An interpretation of Rule 49
according to which the trustees, on the eve of an event that would
entitle a member to claim the benefits that have accumulated
during
his or her membership of the fund, are empowered to amend the rules
so as to remove or reduce such benefits, is one that
would permit an
intolerable injustice. One can only conclude that the framers of the
rule could never have intended it to have
that meaning. What the rule
means, I consider, is that the trustees may amend the rules in such a
way that further benefits will
not accumulate from the time the
amendment is made (which will enable the member to make other
arrangements to replace them) but
that the member may not be deprived
of benefits that have accumulated by the time the amendment is made".
The Court also upheld
the complaint that the first respondent had an
established benefit which was a reference to the benefit that
accumulated at the
time the amendment was made. It must be mentioned
that although the Court considered the other complaints subscribed
under section
12 of the Act, it categorically stated that the three
powers in Section 12 did not entail the making of validity of the
rule amendment.
Therefore the Adjudicator had no power to consider
the first respondent's complaint in that regard meaning the
invalidity of the
Rule.
27.
Section 12 (2) of the Interpretation Act 33 of
1987 (''the interpretation Act"), finds application in this
matter because the
amendment Rule repealed the older Rule. Section
12(2) (c) of the interpretation Act provides that where a law repeals
any other
law, the repeal should not "affect any right,
privilege, obligation, or liability acquired, accrued or incurred
under any
law so repealed. See also
Mahomed v
Union Government 1911AD at 11.
At the time
when the Registrar registered the amendment Rule on 1April 2014, with
retrospective effect from 1 April 2013, the First
respondent was
already paid an amount of R 646,437.42 on 16 October 2013 and had
already acted in that he availed himself to a
right accrued to him by
lodging a complaint with the Adjudicator on 2 December 2013, which
act is within the meaning of the enactment.
One must also be mindful
of the fact that 'acquired' is an expression which implies individual
effort more clearly than 'accrued'.
This was confirmed in
Dys
v Dys
1979 (3) SA 1170
(D).
28.
In the Landmark judgment in
Natal
Joint Municipal Pension Fund ("Natal Pension Fund'') v Endumeni
Municipality
2012 (4) SA 593
(SCA -
which
must now be regarded as the
Locus classicus
on
the subject - Wallis JA took cognisance of the significant
developments in the law relating to the interpretation of documents
and restated the law in the following terms:
"[18] The present
state of the law can be expressed as follows:
Interpretation is the
process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument,
or contract, having
regard to the context provided by reading the particular provision or
provisions in the light of the document
as a whole and the
circumstances attendant on its coming into existence. Whatever the
nature of the document, consideration must
be given to the language
used in the light of the ordinary rules of grammar and syntax; the
context in which the provision appears,
the apparent purpose to which
it is directed and the material known to those responsible for its
production. Where more than one
meaning is possible, each possibility
must be weighed in the light of all these factors. The process is
objective, not subjective.
A sensible meaning is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the apparent purpose
of the document. Judges must be alert to, and
guard against, the temptation to substitute, what they regard as
reasonable, sensible
and businesslike for the words actually used ...
The inevitable point of departure is the language of the provision
itself; read
in context and having regard to the purpose of the
provision and the background to the preparation and production of the
document."
29.
Wallis JA went on to say the following in that
judgment at paragraph [26]:
"In between these
two extremes [where, at one end, the language of the provision, read
in context, seems clear and admits of
little or no ambiguity, and, at
the other end, where the context makes it plain that adhering to the
meaning suggested by apparently
plain language would lead to glaring
absurdity] in most cases the court is faced with two or more possible
meanings that are to
a greater or lesser degree available on the
language used. Here it is usually said that the language is
ambiguous, although the
only ambiguity lies in selecting the proper
meaning (on which views may legitimately differ).In resolving the
problem, the apparent
purpose of the provision and the context within
which it occurs will be important guides to the correct
interpretation. An interpretation
will not be given that leads to
impractical, unbusinesslike or oppressive consequences or that will
stultify the broader operation
of the ... contract under
consideration."
30.The
purpose of the amendment Rule provision and its context is not meant
to lead to oppressive consequences to the first respondent,
instead
it is meant to give a sensible and reasonable meaning to the language
used in the enactment. This is an objective approach
which can
alleviate the plight of the first respondent instead of taking its
acquired right away. Such an approach does not stultify
the broader
operation of the Rule, because its validity is not challenged. The
amendment will still be achieved if interpreted
in a purposive and
contextual manner. See
Take and Save Trading
CC and Others v Standard Bank of SA Ltd 2004 (4) SA (SCA) [6].
The
contextual approach is not limited to the immediate grammatical
context of the words in a linguistic sense, but also their context
in
the enactment, having regard to its apparent purpose and object -
Aktiebolaget Hassle and Another v Triomed
(Pty) Ltd
2003 (1) SA
155
(SCA) [1].
31.
Reverting to the determination of the Adjudicator
in this case, she didn't consider the invalidity of the Rule 37 of
the rules of
the fund. All what the Adjudicator considered was that
the Rule cannot operate with retrospective effect to the first
respondent
because his benefit had already accrued by the time the
amendment was registered. This was in fact confirmed by the Registrar
when
the Adjudicator solicited her interpretation of the Rule
amendment. Importantly also is that the first applicant through its
Board
made a decision to amend the Rule after the first respondent
had withdrawn from the Fund. The Rule was also amended and registered
after the first respondent was paid an amount of R 646 437.42 and had
already lodged a complaint with the Adjudicator. Moreover,
when the
first respondent enquired why he was paid a lesser amount than he had
expected, he was informed by the Fund that the benefit
was reduced as
per its Actuaries advices. This is an indication that at that time no
decision had been taken as regards the status
of the Rule amendment.
Furthermore, the amendment was not yet approved by the Registrar. The
approval and the registration of the
amendment occurred long
thereafter.
32.I
turn now to deal with the powers of review of the Adjudicator's
determination and whether this, court may set aside her orders.
33.
The Public Administrative Justice Act No 3 of
2000 (“PAJA'') will only be applicable if the Adjudicator's
decision constitutes
an administrative action as defined in section 1
of PAJA. Section 6 allows for the judicial review of administrative
action and
in terms of subsection (2) the Court has the power to
judicially review an administrative action if certain requirements
are met
-
President of the Republic of South
Africa and
others v
South African Rugby Football Union and others
2000 (1) SA 1
[CC]
para [1434]. I
t seems
to me that those are not in dispute and there is no need for me to
regurgitate same.
34.
The essence of public power in the context of
section 33(1) of the Constitution (and also PAJA) is illustrated in
the matter of
Masetha v President of the
Republic of South and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) par 78
that:
(a)
The holder of a public power must act in good
faith and not misconstrue his/her power;
(b)
Public power should not be exercised arbitrarily
or irrationally;
(c)
The requirement of rationality includes that the
public power must not act in a way that is procedurally unfair;
(d)
There must be lawfulness in the conduct of the
person exercising the public power, which apart from the substantive
requirement,
also incorporates that there must be procedural fairness
and that public power must not act in a biased manner.
35.
Since this is a review application which is
sufficiently framed to consider review relief, all the requirements
mentioned above
are relevant in this case.
36.
The application is brought in terms of Section
30P of the Act, to review and set aside the decision and order of the
Adjudicator,
in favour of the first respondent. The Adjudicator
effectively ruled that the first applicant cannot adopt and apply a
proposed
amendment Rule of its rules before such amendments are
approved and registered by the Registrar of the Board. Instead, the
first
applicant applied it before the rule was registered by the
Registrar.
37.
I have no doubt in my mind that the Adjudicator
acted in good faith and did not misconstrue her powers, nor did she
exercise her
power arbitrarily or irrationally. She acted in a way
that is, procedurally fair and her conduct was lawful and not biased.
She
cannot be faulted.
38.
The conclusion above is sustained by the analysis
of the following chronological events and the legal principles
pertaining thereto.
39.
The first applicant sent a circular to its
members regarding amendment of Rule 37 of its rules. At that time the
first respondent
was no longer a member of the applicant and was
already notified by the second respondent. The first respondent
categorically states
in his answering affidavit that he was never
notified by the first applicant of the impending amendment. The first
applicant makes
a bald statement in both the founding affidavit and
supplementary affidavit that their members were informed of the
amendments.
There is no evidence to support these allegations in that
no annexures are attached to that effect. Moreover, the first
respondent
was no longer a member of the first applicant at that
time.
40.The
first respondent resigned on 31 May 2013, which preceded the decision
of the Board on 21 June 2013. The amendment was only
approved and
registered by the Registrar on 1 April 2014. It follows that he
amendment was not yet valid and enforceable when the
first
respondent's claim for benefit payment was made. Payment was made on
16 October 2013. On its own version, the first applicant
states that
the first respondent's pension claim benefit was reduced on the
advice of its actuaries.
41.
It is also evident as gleaned from the
Adjudicator's determination that when the Registrar was approached
for an interpretation
of the amendment she stated that whilst a Rule
amendment may be approved with retrospective effect, it cannot be
applied before
it is registered and also it cannot be applied to
benefits that have accrued before the amendment was registered. This
is supported
by what was held in
Mostert NO v
Old Mutual Life Assurance Company (SA) 2001(4) SA 159 (SCA) and TEK
Corporation Provident Fund v Lorenz
1999 (4) SA 884
(SCA).
42.
There is a common law prima
facie
rule of construction that a statute (or any
amendment or legislatively authorised alteration thereto) should not
be interpreted
as having retrospective effect. The presumption
against retrospective arising from this rule may be rebutted, either
expressly
or by necessary implication, by provisions or indicators to
the contrary in the enactment under consideration. n an appropriate
case the language of the enactment, far from rebutting the
presumptions, may fortify it.
Worksman
Compensation Commission v looster
[1997] ZASCA 58
;
1997 (4) SA 418
(SCA) at 424 F-G.
43.
The presumption against retrospectivity is
underpinned by procedural fairness. Even in the case where the
provision of the Act expressly
permit for retrospectivity (as in the
instant case); the basis of presumption is elementary consideration
of fairness (which dictates
that individuals should have an
opportunity to know what the law is and to conform their conduct
accordingly).
Landgraf v USI Film Productions
et al
[1994] USSC 10
;
511 US 244
(1994) at 265,
quoted with
approval by Farlam AJA in
National Director of
Public Prosecutions v Caralus and others 2000(1) SA 1127 (SCA) at
1139 C -D, at 1145 A
the learned Judge
referred to 'the legal culture against retrospective where there is
unfairness'.
44.
The ability to arrange one's affairs in the
shadow of the law is an essential requirement to the rule of law. The
point was made
as follows by the American Supreme Court in
Papachristou v City of Jacksonville
[1972] USSC 42
;
405 US 156
(1972) at 162:
"Living under a rule
of law entails various suppositions, one of which is that "[all
persons'1are entitled to be informed
as to what the State commands or
forbids"
Lonzetta v New Jersey
[1939] USSC 61
;
306 US 451
, 453. A
similar
point was made by Mokgoro J in
President of the Republic of South
Africa and Another v Hugo
1997 (4) SA 1(CC)
at para [102].
"The need for
accessibility precision and general application flow from the concept
of the rule of law. A person should be
able to know of the law, and
be able to conform his or her conduct according to the laws".
(Taken
from the judgment of
De Villiers l in Bareko
NO and Another v Genco Ltd and Others
2006 (1) SA 432).
In
a constitutional democracy and human rights such as ours, a litigant
or a party in a dispute must be given meaningful and adequate
opportunity to make submissions to the Fund on the appropriateness of
the Rule amended before its approval. Prior notice is directly
relevant to the notion of natural justice. This was not the case in
this matter, no prior notice was given to the first respondent.
45.
It is clear from the chronology of events that
the first respondent was not noticed about the impending Rule
amendment prior to
it being registered and the effective date
thereof. He was not aware that it would be operative with
retrospective effect. It was
only when he enquired about the
reduction in his claim benefit that he was informed that it was done
on the advice of the first
applicant's actuaries. It is evident that
the application by the applicants to the Registrar to approve and
register the amendment
of Rule 37 was made on 22 July 2013, this was
after the first respondent had resigned from second respondent on 31
May 2013 and
the amendment was only registered on 1April 2014.
46.
The elementary considerations of fairness form
the basis of the presumption against retrospectively. Statutes are
presumed not to
apply retrospectively particularly where prejudice
will be caused to persons who are holders of certain rights. There is
no dispute
that the first respondent joined the second respondent in
2003 and when he resigned in 2013 he had already covered a period of
ten years in the employment of the second respondent. He had an
established benefit that had accumulated at the time the amendment
was made. Therefore he cannot be deprived of benefits that had
already accumulated by the time the amendment was made on the 1
April
2014.
47.
I must reiterate that the first respondent is not
challenging the validity of the amendment, as the applicants would
want to believe,
but he is merely challenging its unfair
retrospective application on him. As already stated above the
Adjudicator, also, did not
pronounce on the validity of the Rule
amendment but the unfair application thereof to the first respondent.
48.
One other important issue is the late filing of a
supplementary affidavit by the applicants long after the first
respondent had
filed its answering affidavit. The first respondent
filed its answering affidavit on 16 September 2014 and the applicants
filed
their supplementary affidavit on 21 July 2015. This is ten
months after the first respondent had filed its answering affidavit.
Although the supplementary affidavit was admitted into evidence, its
weight is diminished by the impact its delay has on the case
of the
first respondent. By the time the supplementary affidavit was filed,
the applicants were aware of the defences in the case
of the first
respondent. They realized the perilous effect of their founding
affidavit which provided only a skeleton and no meat
in it. They
tried to make their case in the supplementary affidavit which they
failed to make in the founding affidavit. They were
also aware that
it is not permissible for one to make a case in the replying
affidavit. The only pathway to survival was through
a supplementary
affidavit. I am afraid, even this route was not helpful to their
case. I cannot attach much weight to the supplementary
affidavit.
49.
I find no ground on which the determination of
the Adjudicator can be
reviewed and set
aside.
49.1
Condonation for the late filing of the
application is granted.
49.2
The application is dismissed with costs.
__________________________
TJ
RAULINGA
JUDGE
OF THE GAUTENG HIGH COURT, PRETORIA