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[2007] ZASCA 49
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Joint Municipal Pension Fund and Another v Grobler and Others (183/06) [2007] ZASCA 49; [2007] 4 All SA 855 (SCA); 2007 (5) SA 629 (SCA) (30 March 2007)
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IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
CASE NO 183/06
In the
matter between
THE JOINT MUNICIPAL PENSION FUND
......................
First Appellant
THE MUNPEN
RETIREMENT FUND
......................
Second Appellant
and
LJ GROBLER
......................
First
Respondent
THE PENSION FUNDS ADJUDICATOR
......................
Second Respondent
THE REGISTRAR OF PENSION FUNDS
......................
Third Respondent
J MAHLANGU NO
......................
Fourth Respondent
C MÜLLER
NO
......................
Fifth Respondent
________________________________________________________________________
CORAM: HOWIE P, NUGENT, HEHER, PONNAN JJA et MUSI AJA
________________________________________________________________________
Date Heard:
1 March 2007
Delivered:
30 March 2007
Summary: Pension fund- whether rules validly empower amendment
depriving member of ‘established benefit’ – whether
decision to amend and validity of amendment can be subject of
‘complaint’ under
Pension Funds Act 24 of 1956
to Pension
Funds Adjudicator – whether decision to amend reviewable by
High Court in this case.
Neutral Citation
:
This judgment may be referred to as
The Joint Municipal
Fund v LJ Grobler
[2007] SCA 49 (RSA)
_____________________________________________________________________
J U D G M E N T
________________________________________________________________________
HOWIE P
HOWIE
P
[1] Until his retrenchment the first respondent, Mr
Lodewyk Jacobus Grobler, was in the employ of the first appellant,
the Joint Municipal
Pension Fund and a member of the second
appellant, the Munpen Retirement Fund. I shall mostly refer to the
appellants as ‘the
JMPF’ and ‘Munpen’
respectively and I shall refer to the first respondent by his
surname.
[2] Just under 14 months before Grobler’s
retrenchment Munpen’s trustees, at the request of the JMPF,
amended Munpen’s
rules and procured registration of the
amendment by the registrar of Pension Funds under the Pension Funds
Act 24 of 1956 (the Act).
The rules provide for a retrenchment
benefit. Crucial to the calculation of Grobler’s benefit was
the rules’ definition
of ‘pensionable service’.
Before amendment the definition was such that all Grobler’s
years in municipal service
prior to employment with the JMPF fell to
be included in determining his ‘pensionable service’. The
effect of the amendment
was that his pensionable service for purpose
of calculating his retrenchment benefit was limited to the six and a
half years of his
employment with the JMPF. The result, needless to
say, was that he was paid a very considerably reduced retrenchment
benefit.
[3] In terms of rule 49 of Munpen’s rules,
amendments are permitted at any time provided, among other things,
that
‘
the value of an established benefit before
such amendment shall not be decreased ...’
(There is a provision allowing for a decrease if the
fund is in financial difficulties. It is irrelevant in this case.)
[4] Aggrieved by this outcome, Grobler laid a series of
complaints at various times before the Pension Funds Adjudicator, an
official
appointed under the Act to deal with complaints against a
pension fund organisation. (Both appellants are pension fund
organisations.)
Essentially, Grobler was throughout concerned about
the computation of his eventual benefit and that concern was
inevitably coupled
with the assertion or implication that his benefit
had been invalidly reduced by a rule amendment in conflict with rule
49.
[5] The Adjudicator decided that because the rule
amendment had been registered he had no jurisdiction to consider
Grobler’s
complaint about the rule amendment and conveyed that
decision to him.
[6] Grobler thereafter applied successfully on review to
the High Court at Pretoria (R Claassen J) for an order which was
granted
in terms that may be summarised as follows:
1. The Adjudicator’s decision was set aside.
2. Munpen’s trustees’ decision to amend the
rules was set aside.
3. The Registrar was ordered to cancel registration of
the amended rules.
4. It was declared that Grobler had ‘an
established right regarding the acknowledgement of his years of
pensionable service’
before employment with the JMPF and that
right was ‘unlawfully ... reduced’. (the order repeated
the notice of motion
in the quoted respects.)
5. He was entitled to compensation for the full period
of his ‘pensionable service’ within the meaning of the
rules prior
to amendment.
6. The JMPF was ordered to pay him R1 596 681 with
interest.
7. Munpen was ordered to pay him certain interest.
8. The JMPF and Munpen were ordered to pay the costs.
[7] Leave to appeal to this Court was granted by the
Court below to the JMPF, Munpen and the Registrar. The grounds on
which leave
was granted were confined to those raised by the JMPF and
Munpen.
[8] Of the grounds advanced in the heads of argument for
the JMPF and Munpen their senior counsel (who was not involved in
drawing
the heads) limited his submissions to the following. The
first was to the effect that the amendment did not violate rule 49
because
Grobler had, by the time of the amendment, not yet acquired
an established benefit. Secondly, it was contended that the
application
before the High Court was a review of the Adjudicator and
as the Adjudicator had no power in law to decide upon the validity of
rule
amendments, and therefore had no jurisdiction in that regard,
the court equally had no jurisdiction. Thirdly, in the course of
presenting
the second submission counsel remarked that in so far as
the application was a review of the JMPF and Munpen it had to have
been
brought under the Promotion of Administrative Justice Act 3 of
2000 (PAJA) and was outside the time limit laid down in that statute.
[9] The argument that Grobler had no ‘established
benefit’ was based essentially on those well known authorities
and writings
which deal with vested rights as opposed to conditional
rights. (It was not suggested that if he had an established benefit
it did
not have a value nor that the amendment had not decreased its
value.)
[10] In the commonly encountered language of insurance
contracts and pension or provident funds a benefit, generally
speaking, can
mean the actual financial payment which the insured or
fund member will eventually receive on the occurrence of the future
event
in respect of which the benefit is payable. And accepting that
it is only then that the beneficiary becomes entitled to payment,
it
is only then that a right to the payment can come into being.
However, rule 49 does not speak of a right but a benefit. Moreover,
a
right, whether vested or conditional, implies an otherwise specific
and unqualified entitlement. Conceptually a right does not
permit of
reduction. If one has a right to payment of a specific amount then it
is a right to no more and no less. Again speaking
generally, a right
is in this context subject only to its being conditional or having
vested. Accordingly, the principles of vesting
of rights do not in my
view provide the answer. I say so for the following reasons.
[11] As I have indicated, what the rules of the fund
provide for are called ‘benefits’. They become payable on
the occurrence
of specific events – retirement or death or
physical incapacitation or retrenchment. In each case the benefit
that becomes
payable is calculated according to a formula. (I deal
later with the formula for the calculation of the retrenchment
benefit.) It
suffices to say that in each case a benefit continually
increases the longer the member remains a member of the fund. In some
cases
the benefit also increases in steps from time to time as the
member ages or the member’s period of pensionable service
increases
(as in the case of the retrenchment benefit).
[12] Naturally there can be no certainty which of those
events – if any at all – will occur while the member
belongs to
the fund. The member might even resign before any of them
occur. But in planning for the eventuality of retirement or death or
medical
disability or retrenchment a member will, when planning,
naturally take account of the value of the benefits that by that time
have
accumulated and be payable should one of the events occur
immediately. The important point is that a benefit is calculable not
only
when it becomes claimable on occurrence of the relevant event.
Its accumulated value at an earlier time is also calculable.
[13] Accordingly 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 which 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. To find for the appellants in this regard
would sanction an interpretation that would be in direct
conflict
with the purpose of a pension fund, which is, after all, to enable
members to plan for the occurrence of the various events
for which
benefits are provided.
[14] Grobler was employed by several municipalities. He
entered municipal service in 1974 and left it when he became employed
by the
JMPF on 1 October 1996 as its Financial Manager.
[15] In his time as a municipal employee he was a member
of the JMPF. In 1993 the Commissioner ruled that because the JMPF was
not
a local authority its employees could not enjoy the tax benefits
then available to members of municipal retirement funds. They
therefore
had to give up membership of the JMPF. The ruling, which
gave rise to the establishment of Munpen, was later withdrawn subject
to
conditions. The upshot was that employee-members of the JMPF were
permitted to switch membership to other funds and so retain what
had
been their tax benefits. One of the other funds was the Municipal
Gratuity Fund (MGF). A window period was provided by the Commissioner
for the switch. Although not yet an employee of the JMPF, Grobler
took advantage of the opportunity to switch funds and retain the
tax
benefits. He became a member of the MGF. In terms of the respective
rules of the JMPF and the MGF he had a transfer value in
the JMPF
which took into account his municipal pensionable service up to that
time. Then, when he left municipal service he became
entitled under
the rules of the MGF to a withdrawal benefit equal to his funds
credit in the MGF. On entering the employ of the JMPF
he was obliged
to become a member of Munpen but because Munpen benefits were taxable
he did not transfer his MGF withdrawal benefit
to Munpen but invested
it privately.
[16] It was on the basis that Grobler had already
received the benefits referred to in the preceding paragraph in
respect of his years
of municipal service that the appellants sought
to say in the papers that the rule as unamended served to advantage
him unduly, which
advantage was an unintended consequence. That
attitude serves to strengthen the impression one gains from the
record that the rule
amendment was aimed specifically at Grobler. Be
those considerations as they may, they do not conduce to solve the
issues raised
by the appeal. Any unintended consequence might be
capable of correction in an appropriate way but not by an amendment
in conflict
with rule 49.
[17] Rule 36 of Munpen’s rules is headed
“DISCHARGE OWING TO RE-ORGANISATION’ and provides for two
categories of
retrenchment benefit. One is for a member with at least
10 years’ pensionable service and the other for a member with
less
than 10 years. For each category a detailed formula is provided
by which to calculate the amount that will eventually be payable
on
maturation of the right to the benefit. But it is also possible to
calculate the current value of the benefit at any prior stage,
for
example, on the supposition that retrenchment were to follow
calculation virtually immediately. In either category the member
will
be entitled to his or her member’s share of the pension fund
plus two specified amounts payable by the employer. In the
case of a
member with 10 or more years’ pensionable service one of those
amounts is equal to three months’ pensionable
emoluments. The
other amount is the product of multiplying
a x
b x c
where
a
is the member’s average annual pensionable
emoluments over the last three years of pensionable service,
b
is the member’s
pensionable service plus additional service (the latter is defined
and need not be considered for present purposes),
and
c
is a specified factor
allocated to the member’s age (there is a factor for every age
from 20 to 64).
[18] In the case of a member with less than 10 years’
pensionable service there will be payable by the employer, firstly,
an
amount equal to
(a x b)-c
where
a
is 20 percent of the
member’s annual pensionable emolument over the last three
years’ of pensionable service, (or the
full period if less than
three),
b
equals the pensionable
service, and
c
equals the member’s
share.
Secondly, the employer will pay six months’
pensionable emoluments. (There is a qualification in this latter
regard which need
not be considered.)
[19] What the disputed amendment did, as I have
indicated, was to limit Grobler’s pensionable service for
purposes of rule 36
to the period from 1 October 1996 until his
retrenchment took effect, which was on 1 June 2003. Before amendment
his pensionable
service included his years of municipal service.
[20] Had this been a case where the benefit eventually
payable in the event of retrenchment were not calculable until
occurrence of
that event it might not have been possible to calculate
a present value. It would also not have been possible to say that any
benefit
was ‘established’ prior to such occurrence.
However, that is clearly not the case here. As at the date of the
amendment
one could calculate the amount which Grobler would have
been entitled to had he been retrenched on that date. The fact that
he was
not retrenched till later does not mean that there was as yet
no benefit that was ‘established’. By simply applying the
criteria applicable to the first category of retrenchment benefits it
was possible to determine that whatever his eventual entitlement
on
retrenchment, he had at the least by the date of amendment notched up
enough years of service to establish, as a minimum benefit
value, the
sum which those criteria yielded as on that date.
[21] Of course, as I have said, he had to be retrenched
to be entitled to be paid a benefit and the right to claim it might,
seen
as at the date of the amendment, never have accrued but that
cannot save the amendment from invalidity. What is determinative is
whether the benefit had become established, not whether the right to
claim it had accrued. The question is: ‘Did the amendment
decrease the value of an established retrenchment benefit?’ and
to answer that question one has to assume that retrenchment
would
have ensued. Were it otherwise the fund’s trustees could, on
the eve of retirement or retrenchment, withdraw accumulated
benefits
and simply shrug their shoulders the following day. The unfairness
would be manifest.
[22] I conclude, therefore, that the amendment was in
conflict with rule 49 and consequently invalid.
[23] Turning to the submission that the court had no
jurisdiction because the Adjudicator had no power to rule on the
validity of
the amendment, his powers and functions are limited to
what is provided for in the Act. His main object is to dispose of
complaints
in a procedurally fair, economical and expeditious
manner.
1
A complaint is defined.
2
The definition reads:
‘
complaint’
means a complaint of a complainant relating to the administration of
a fund, the investment of its funds or the interpretation and
application of its rules, and alleging –
(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, ...’
[24] In
Meyer v Iscor Pension
Fund
3
this court considered a complainant’s grievance
professedly based on maladministration under para (b) of the
definition. The
complaint was that the fund’s rules were
amended in breach of its fiduciary duty to members by discriminating
against them
and by frustrating certain alleged legitimate
expectations. The fund’s answer was that this was not a
complaint as defined
because it did not amount to maladministration.
Maladministration, it was argued, had to be confined to the
administration of the
fund contrary to its rules and did not include
rule amendments. The judgment reads
4
‘
Though I am inclined to agree with the
meaning of the term “maladministration” contended for by
the fund, I find it unnecessary
to come to any final conclusion on
this issue since Meyer’s objection falls within the ambit of
para (a) of the definition
of a “complaint”. Paragraph
(a) of the definition contemplates an objection ‘that a
decision of the fund ... purportedly
taken in terms of the rules [of
the fund] ... was an improper exercise of [the fund’s] powers”.
That would, in my view,
include Meyer’s objection that the way
in which rule 6.2 was amended amounted to an improper exercise of the
fund’s powers
under rule 12.8.’
[25] With respect, although a decision to amend a fund’s
rules would indeed be a decision ‘in terms of the rules’
if its rules did empower amendments, the question whether a
complainant’s case is a complaint as defined is not limited to
determining whether it fits any of the instances in paragraphs (a) to
(d). To be a complaint as defined it has also to conform to
what is
stated in the preamble to the definition. It must, in other words,
while alleging one or more matters described in paragraphs
(a) to
(d), nevertheless also concern one of the three subjects stated in
the preamble: (i) administration of the fund, (ii) investment
of its
funds, or (iii) interpretation and application of its rules.
5
None of those three subjects entails the making or
validity of rule amendments. It follows that the Adjudicator had no
power to consider
Grobler’s complaint in so far as it involved
the amendment or its validity. In taking the view that the
Adjudicator had that
power the Court below, with respect, erred.
[26] Another regard in which the learned Judge erred, in
my opinion, was in connection with the Adjudicator’s position
vis à
vis the Registrar. There could be no problem, once the
court held the amendment invalid, in ordering the Registrar to cancel
registration
of the amended rule, as was ordered. However, in
arriving at the conclusion that that was what had to be done the
Court referred
to the Adjudicatior’s power under s 30E(1)(a) of
the Act to ‘make the order which any court of law may make’
and
proceeded to say that ‘the Adjudicator was at liberty and
should have instructed the registrar to cancel such registration’.
[27] Plainly the Adjudicator can only ‘make the
order which any court of law may make’ in respect of a matter
within his
competence. As I have said, a rule amendment and its
validity are beyond that competence. So, without any doubt, is an
instruction
by the Adjudicator to the Registrar to cancel a rule
registration. Not surprisingly, the Registrar appeared by counsel
before us
to contest the view adopted by the learned Judge.
Nevertheless what the registrar’s counsel did not object to was
the cancellation
order granted by the Court below on the basis that
the amendment was invalid.
[28] The Adjudicator’s lack of jurisdiction to
consider the rule amendment would have been fatal to the High Court
application
had the latter been confined to reviewing the Adjudicator
or had the other relief claimed been only in the alternative to
reviewing
the Adjudicator. The application was not so confined and
the relief sought against the other parties cited was not claimed in
the
alternative. There are, it is true, passages in the founding
affidavit consistent with the relief against the other parties having
been sought on the footing that the decision of the Adjudicator was
to be set aside. As against those, there are annexures, including
letters from Grobler’s attorney to JMPF and Munpen, squarely
raising the matter of the invalid amendment and its effect on
his
established retrenchment benefit. Even when addressing the
Adjudicator the attorney made it clear that if the Adjudicator lacked
jurisdiction an application would be made to the High Court for
appropriate relief. There is also a paragraph in the founding
affidavit
stating that the purpose of the application was, inter
alia, ‘to grant the relief in the Notice of Motion’.
Finally,
one finds in the notice of motion an unqualified prayer for
an order reviewing and setting aside the decision of Munpen’s
trustees
relative to the disputed amendment. In the circumstances I
consider that the application to the court below was sufficiently
framed
to include review relief such as is within the ambit of PAJA
even though PAJA is not referred to.
[29] I have mentioned that counsel for the appellants
remarked that a review application under PAJA was out of time. In
this respect
there are detailed submissions in the appellants’
heads but they were not urged before us in argument. The Munpen
decision
sought to be reviewed was dated 13 February 2002. Quite
patently Grobler and his attorney thought that a complaint to the
Adjudicator
had to be exhausted before all else, provided he had
jurisdiction. In that regard matters dragged unduly, not least
because the office
of Adjudicator was not filled for some while.
Initially they were advised that he did have jurisdiction and they
awaited his decision.
When the new Adjudicator took office his final
response, dated 19 November 2004, was that he had no jurisdiction.
This was received
by Grobler’s attorney on 2 December 2004. The
application to the court below was launched in January 2005.
[30] PAJA requires a judicial review to be brought
without unreasonable delay and in any case within 180 days after,
inter alia, exhaustion
of internal remedies. Despite the absence in
law of the supposed internal remedy of recourse to the Adjudicator it
seems to me that
the interests of justice warranted the Court below’s
decision to entertain the application. (See s 9 of PAJA.)
[31] It follows that Grobler was entitled to an order
setting aside the invalid amendment, as was indeed granted. Because
the declaratory
relief took the matter no further it should not have
been granted. And the monetary relief was not appropriate to be dealt
with on
the affidavits filed, nor was it appropriate relief to grant
on review. The order of the court below therefore requires amendment
and the parties must be left to deal as they are advised with the
issues which flow from the setting aside of the rule amendment.
Finally, there was no justification for ordering, as part of the
costs order, that the appellants pay the costs of proceedings before
the Adjudicator. There was no attack on this aspect by them but they
should not be penalised for Grobler’s misdirected efforts
to
secure relief before the Adjudicator. (Because the order of the court
below, as issued, also contains clerical errors it will
be re-drawn.)
[32] Given the outcome of the appeal, the order against
the Registrar must stand. Grobler rightly sought no costs order
against him.
[33] Despite the need to amend the order of the Court
below the appellants’ essential object was to argue for the
amendment’s
validity and as they have failed they must bear the
costs of appeal.
[34] It remains to mention that the Registrar was out of
time in filing his notice of appeal and his heads of argument. He was
required
to ask for condonation, the grant of which is appropriate in
the circumstances. He must bear the costs, including the costs of
Grobler’s
opposition.
[35] The following order is made:
A. The order of the court below is amended to read as
follows
‘
1. An order is granted
reviewing and setting aside:
1. The decision of the trustees of the third respondent
as requested by the second respondent and taken on 13 February 2002.
“...
dat slegs pensioengewende diens by die laaste werkgewer in
ag geneem word vir doeleindes van herorganisasie.”
2. The decision of the trustees of the third respondent
of 13 February 2002 to amend the definition of pensionable service
(“pensioengewende
diens”) in the rules of the third
respondent, as requested by the second respondent, to the effect that
only pensionable service
of the member of the third respondent with
his last employer be regarded as pensionable service at the date of
termination of the
member’s service with his employer for
purposes of Rule 36 of the rules of the third respondent (dismissal
because of reorganisation),
unless the employer and the member agrees
otherwise.’
2. The sixth respondent is ordered to cancel the
registration of the amended rules of the third respondent registered
by him on 6
May 2002.
3. The second and third respondents are ordered to pay
the costs of this application jointly and severally the one paying
the other
to be absolved.’
B. Subject to the order in A, the appeal is dismissed
with costs.
C. The third respondent is granted condonation but
ordered to pay the costs of the application for condonation as also
the first respondent’s
costs of opposition.
_____________________
CT HOWIE
PRESIDENT
SUPREME
COURT OF APPEAL
CONCUR:
NUGENT JA
PONNAN JA
MUSI AJA
HEHER JA:
[36] I have read the judgment of Howie P. I respectfully
disagree with his conclusion that Mr Grobler possessed an
‘established
benefit’ the value of which was decreased by
the amendment to the rules. My reasons can be succinctly stated.
[37] To understand the use of the word ‘established’
in relation to a benefit it is necessary to examine the rule which
brings the benefit into operation. Thereby one will determine when
and under what circumstances a potential benefit reaches that
degree
of certainty, security and permanence which is inherent in the
meaning of the word.
6
[38] The benefit of which Grobler was said to have been
deprived was the benefit of a pension on retrenchment following on a
re-organisation
by his employer. The earliest date at which a member
can qualify for a benefit under the re-organisation rule must set the
outer
limit of when such a benefit can properly be described as
‘established’. The relevant pension fund rule (rule
36(1))
provides as follows (omitting matters irrelevant to this
judgment):
’
36. DISCHARGE OWING TO RE-ORGANISATION
(1) If a MEMBER’S service is terminated owing to a reduction
in, or re-organisation of staff, or to the abolition of his post,
or
in order to effect improvements in efficiency or organization, or
owing to retrenchments in general, he shall be entitled to his
MEMBER’S SHARE on the date of his leaving service, plus the
following amount payable by the EMPLOYER concerned:
(a) in the case of a MEMBER who has at least ten years’
PENSIONABLE SERVICE,
(i) an amount equal to . . .’
Subrule (b) goes on to provide in equivalent fashion for
a member who has less than ten years’ pensionable service.
[39] The rule makes it clear that in order for a
potential beneficiary to qualify for a benefit on re-organization
three factual requirements
must be satisfied (once again I limit the
analysis to what is relevant to Grobler’s case):
(1) membership of the fund at the time of the
termination of service;
(2) retrenchment in consequence of a re-organisation;
(3) the requisite minimum years of pensionable service.
[40] The third factual element does not on its own
qualify a beneficiary for the benefits of the rule. Unless and until
the other
two elements are present it is impossible to know which, if
any, members will be adversely affected and who consequently
surmounts
the jurisdictional requirements of the rule. No matter how
probable any of the three requirements may appear in advance it
cannot
be assumed in advance that any will be satisfied: the
potential beneficiary may die or leave the service of his employer
for many
other reasons before that happens, or the rule may no longer
set the same qualifying criteria as a result of further amendments in
the interim.
[41] In Grobler’s case the amendment to the rule
was passed long before the re-organisation took place which resulted
in his
retrenchment. At that time he did not qualify for the benefits
of rule 36(1) and no-one could say that the likelihood of his doing
so was anything more than an uncertain future event. The corollary
was, of course, that he could not validly have objected to the
amendment because he could not at that time have proved that he was a
qualified member.
[42] The matter may also be approached from a different
angle. The amendment changed the qualifying conditions (relating to
‘pensionable
service’) for a benefit on re-organisation.
But it did so before Grobler himself qualified for such a benefit. At
the time
he had accrued no right to have any future determination of
his benefits on retrenchment decided according to the rules before
the
amendment. In this regard his case is in my view analogous to
that of the attorney’s clerk who entered into articles on a
particular
statutory basis but found that during his articles the law
was amended to change the qualifications for admission:
Browne
v Inc Law Society of Natal
1968 (3) SA 535
(N) at 539H-540H. See also
Chairman, Board on
Tariffs & Trade v Volkswagen of SA (Pty) Ltd
[2000] ZASCA 84
;
2001
(2) SA 372
(SCA) per Nienaber JA at 380D-F and per Harms JA at
387F-I. It is only in this sense that I think that vested rights have
anything
to contribute to the decision of this case.
[43] For these reasons I find that the amendment did not
reduce the value of any established benefit in favour of Grobler. The
appeal
should accordingly be upheld and judgment of the court
a
quo
set aside. As this is a minority judgment
it is unnecessary to be more specific in this regard.
___________________
J A HEHER
JUDGE OF APPEAL
1
Section
30D.
2
Section
1.
3
2003
(2) SA 715
(SCA).
4
Para
[23] at 730H-J.
5
Shell
and BP SA Petroleum Refineries v Murphy NO
2001
(3) SA 683(D)
at 690D-E
6
The
Shorter OED
sub nom
‘
establish’:
1. To render stable or firm; 2. To fix, settle, institute or ordain
permanently; 3. To set up on a secure basis;
To set up or bring
about permanently; 6. To place beyond dispute; to prove.