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[2016] ZAFSHC 213
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Bohloko v Liberty Group Limited (3357/2016) [2016] ZAFSHC 213 (15 December 2016)
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 3357/2016
In the
application between:
GERTRUDE
MATSITSO BOHLOKO
Applicant
and
LIBERTY
GROUP LIMITED
Respondent
JUDGMENT
BY:
C REINDERS, J
HEARD
ON:
8 DECEMBER 2016
DELIVERED
ON:
15 DECEMBER 2016
[1] The
Respondent is Liberty Group Limited (hereafter “Liberty”),
a legally authorised financial service provider who,
inter alia,
administers pension fund plans. The Lifestyle Retirement Preserver
Pension Fund Plan (herafter “the Plan”)
is administered
by Liberty subject to a set of rules (hereafter “the Rules”).
[2] The
Applicant is Gertrude Matsitso Bohloko (hereafter “Ms
Bohloko”), a former Deputy Registrar of the Central University
of Technology. It is common cause that she acquired membership of the
Plan when she transferred her pension benefit (known as a
translocation benefit) in the amount of R 1 723 924.85 from
her former employer upon her retirement to Liberty in 2014.
[3] In
terms of Section 4.4 of the Rules a member are bound by the
provisions of the Rules. This principle is supported by the Pension
Funds Act of 24 of 1956 (the “PFA”), stipulating in
Section 13 thereof that the rules in respect of pension funds are
binding on its members.
[4]
Section 6 of the Rules deals with “benefits”, defined by
the Rules as “an annuity or any amount payable to
a member or
any other person arising out of membership of the plan.” The
retirement benefit to which a member is entitled
is governed by
Section 6.1.1 of the Rules. In terms of this subsection a
member may give written notice to the administor
to retire from the
plan (and thus receive the benefit) at the selected retirement date
or at any date on or after a member reaches
the “normal
retirement age”. The latter is defined by the Rules as “the
date on which a member attains 55 years
of age or on which the member
becomes permanently incapable of carrying on their occupation due to
sickness, accident, injury or
incapacity through infirmity of mind or
body.”
[5] Under
the heading “Withdrawal Benefits” in subsection 6.3 of
the Rules, Section 6.3.3 provides as follows: “
a member may at
any time after becoming a member withdraw all or part of his benefit
as a cash lump sum,
provided that only one amount per
translocation benefit …may be withdrawn prior to payment of a
retirement or death benefit
.”
[6] In
terms of Section 19(5)(a) of the Act a registered fund may,
if its
rules so permit
(my emphasis) and subject to the regulations,
grant a loan to a member by way of an investment of its funds, or
furnish a guarantee.
[7] Ms
Bohloko applies for an order in the following terms:
“
1.
That the Respondent be directed to release my (sic) pension interest
and /or part thereof;
2.
In the alternative to the above, that the Respondent be directed to
grant a loan and advance to the Applicant the
amount required by ABSA
BANK to settle the bond over her immovable property situated at
No.[....] B. D., F., BLOEMFONTEIN;
3.
That the Respondent be directed to pay the costs of the Application
on (an) attorney and client scale alternatively
party and party scale
only if the Application is opposed.”
[8]
According to Ms Bohloko she is a 52 year old lady who produces and
sells farm products to meet her financial obligations. Due
to the
negative impact of the on-going drought she has been unable to attend
to payment of, amongst others, her mortgage bond with
Absa Bank, two
life policies with Liberty and her medical aid premiums. During
February 2016 she approached Liberty with a request
for “some
withdrawals to make payment” of the said policies and mortgage
bond, but was informed that she would not
be able to make the
withdrawals as requested. Hereafter she approached her attorney of
record and various correspondences ensued
between the parties,
leading to the launch of this application.
[9] Ms
Bohloko’s entitlement to her pension interest with Liberty is
governed by the Rules as a result of her membership
with Liberty. It
is common cause that Ms Bohloko has not yet reached the normal
retirement age of 55, nor is any of the other criteria
in respect of
a normal retirement age applicable to her. It is also not disputed
that she made a withdrawal from her benefit with
Liberty in the
amount of R 343 852.31 during 2015, thus precluding her from
making any further withdrawals in terms of Rule
6.3.3. In regards to
the granting to her of a loan by Liberty, it is not the case of Ms
Bohloko that the Rules provide for the
granting of loans to members
or the furnishing of guarantees. She merely avers that “nothing
prevents” the fund from
granting same. In applying both the Act
and the Rules, I am of the view that I cannot issue an order
directing Liberty to grant
a loan to Ms Bohloko in the absence of
such a provision in the Rules.
[10] Ms
Bohloko pleads with this court to direct Liberty to release the funds
of her pension interest or grant her a loan in order
to avoid the
loss of her residential property, claiming that she has a
constitutional right to property, which right she is being
deprived
of by Liberty’s refusal to release her pension benefit. Even
though I have heartfelt sympathy for the financial
predicament and
hardship that Ms Bohloko faces, I am not at liberty to interfere in
the contractual relationship between Liberty
and Ms Bohloko by
ordering Liberty, in direct contrast to the explicit terms of the
agreement, to release part of or the entire
benefit of Ms Bohloko
before she is entitled thereto, or grant her a loan not permitted by
Liberty.
[11] The
usual order is that cost will follow suit. I find reason to deviate
therefrom in order to show my disapproval for the uncooperative
manner in which Liberty responded to the numerous requests by Ms
Bohloko’s attorney of record to be provided with the Rules.
In
my discretion I therefore intend not to burden Ms Bohloko with the
costs of Liberty’s opposition to this application.
[12]
Accordingly the following order will issue:
The
application is dismissed.
________________
C.
REINDERS, J
On behalf
of the Applicant:
Mr.
M. Khang
Instructed by:
Mphafi Khang Inc.
BLOEMFONTEIN
On behalf
of the Respondent:
Adv. M. Dewrance
Instructed by:
Moodie &
Robertson
c/o Lovius Block
BLOEMFONTEIN