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[2015] ZAGPPHC 423
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Sentinel Retirement Fund v Mtambo and Others (75404/2013) [2015] ZAGPPHC 423 (1 June 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 75404/2013
DATE:
01 JUNE 2015
In
the matter between:
SENTINEL
RETIREMENT
FUND
........................................................................................
Applicant
And
CHOICE
MTAMBO
........................................................................................................
1st
Respondent
CLEMENT
KATEMBWE
MTAMBO
.........................................................................
2nd
Respondent
THE
MAGISTRATE, RANDBURG MAGISTRATE
COURT
..................................
3rd
Respondent
THE
MAINTENANCE
OFFICER
................................................................................
4th
Respondent
RANDBURG
MAINTENANCE
COURT
.....................................................................
5th
Respondent
JUDGMENT
JANSEN
J
[1]
This matter was initially brought as an
urgent application divided into a Part A and a Part B.
[2]
On the date of the urgent hearing the
matter could not be heard as an answering affidavit was filed on 23
December 2013. The
matter was removed from the roll on 24
December 2013 by Tolmay J because it had become opposed.
[3]
The nub of the application is that the
Sentinel Retirement Fund on 10 July 2013 received a court order of
the same date, ordering
it to pay arrear maintenance from the member,
namely the second respondent’s benefit, to the first respondent
and to withhold
his benefit for an apparently indefinite period.
[4]
This order was made by the third
respondent, namely the magistrate of the Randburg
magistrate/maintenance court. The fourth
respondent is the
maintenance officer for the Randburg magistrate’s court, Mr
Paul Thotobolo.
[5]
No entity called the Sentinel Mining
Pension Fund exists. The correct entity is the Sentinel
Retirement Fund (“
Sentinel
”),
a pension fund organisation as defined in section 1 of the
Pension Funds Act 24 of 1956 (the “
PFA
”).
Furthermore, the Sentinel Retirement Fund was given no notice of the
proceedings and the only notice it received
thereof was the court
order referred to above.
[6]
A maintenance officer, Mr Ramalata,
contacted Sentinel and requested a progress report regarding the
payment ordered in terms of
the of the July 2013 order.
[7]
The Sentinel Retirement Fund stated that
such information was confidential and could only be given on
provision of a subpoena which
was duly obtained. The
information was furnished as requested but Sentinel was informed that
a new order would be obtained
from the Randburg
magistrate/maintenance court. This was duly obtained and
differed
toto caelo
from the first order. This new maintenance order was obtained
on 15 August 2013 from the Randburg magistrate/maintenance
court.
[8]
Once again, Sentinel, although cited as a
party, was never informed of the proceedings. Neither was the
principle of
audi alteram partem
adhered to and the second respondent only heard of the maintenance
proceedings through Sentinel. Both maintenance orders
were
obtained
ex parte
.
[9]
Sentinel wrote a letter to the
magistrate/maintenance court stating that paragraphs 4 to 6 of the 15
August 2013 order in respect
of the payment of future maintenance is
unenforceable, and furnished full reasons why past maintenance could
be paid from the fund
but not future maintenance.
[10]
The second respondent’s attorneys
informed Sentinel that they would apply to the magistrate/maintenance
court for the orders
to be rescinded, but had difficulties in
finalising the application because the second respondent was in
Uganda. In the interim,
Sentinel was being threatened by
employees of the magistrate/maintenance court that contempt of court
proceedings would be brought
against it.
[11]
On 25 November 2013 a further court order
was served on Sentinel. For ease of reference, the court order
is annexed to this
judgment as “
FA1
”.
Yet a further order, differing in wording from “
FA1
”,
was received by Sentinel on 4 December 2013. This order is also
dated 25 November 2013 and is attached to this judgment
marked
“
FA2
”.
The maintenance officer now contends that the valid court order is
annexure “
FA1
”.
[12]
The argument put forward by Sentinel is
that whichever of “
FA1
”
or “
FA2
”
is the alleged “valid” court order, none of them is
de
facto
valid in that it orders the
payment of future maintenance which is not allowed by the
PFA
.
[13]
Initially it appeared as though the new
orders of 25 November 2013 were based on applications filed by the
second respondent’s
attorneys to suspend the 10 July 2013 and
15 August 2013 court orders due to technical defects. These
applications were set
down for hearing on 15 January 2014. A
complaint was also filed by the second respondent’s attorneys
with the chief
magistrate on 29 November 2013.
[14]
However, as set out above, on 25 November
2013, two irreconcilably destructive court orders were issued by the
magistrate of the
Randburg magistrate/maintenance court. These
orders neither rescinded nor amended the 10 July 2013 and 15 August
2013 court
orders.
[15]
The effect of annexure “
FA1
”
was to: —
[15.1]
attach a so-called “said debt” without clarifying to
which amount reference was being made;
[15.2]
require Sentinel to pay to the first respondent an amount of R80 640
in arrear maintenance, without explaining how such
amount is
calculated or in respect of which months’ arrears it relates;
and
[15.3]
to require Sentinel to pay to the first respondent a lump sum of
R144 000 in respect of future maintenance.
[16]
The effect of annexure “
FA2
”
was to: —
[16.1]
require Sentinel to pay to the first respondent an amount of R80 640
in arrear maintenance, without explaining how such
amount was
calculated or stipulating to which months’ arrears this amount
relates, especially considering that this amount
is not a multiple of
R12 000 (the monthly maintenance payable);
[16.2]
require the fund to pay to the Randburg Magistrate Court (not the
first respondent per the first 25 November order) an amount
of
R161 280.00 (not R144 000 per the first 25 November order)
for the benefit of the first respondent; and
[16.3]
substitute the orders dated 10 July and 18 August 2013 (presumably
this is meant to be a reference to the order dated
15 August 2013)
without any reference to the first 25 November 2013 order.
[17]
On 9 December 2013, the fourth respondent,
namely the maintenance officer, informed Sentinel that there were no
applications for
rescissions filed by the second respondent’s
attorneys and that the valid order which had to be enforced was
annexure “
FA1
”.
[18]
In terms of annexure “
FA1
”,
read with section 30 of the Maintenance Act 99 of 1998 (the
“
Maintenance Act
&rdquo
;),
an amount of R161 280.00 had
de
facto
been attached. Payment of
the future maintenance of R161 280.00 was allegedly due and
payable to the first respondent.
This amount, on a proper
construction, so Sentinel argues, is an amount in relation to future
maintenance which is
not
due and payable.
[19]
However, as set out in the applicant’s
supplementary heads of argument and supplementary affidavit, yet a
further maintenance
order was obtained on 11 March 2014. This
order was brought to the applicant’s attention in terms of
section 16(5)
of the
Maintenance Act. This
order is
annexed to this judgment marked “
FA3
”
[20]
A timeline setting out the events
subsequent to the 24 December 2013 hearing is instructive and of
assistance to understand the
facts of this case: —
[20.1]
On 24 December 2013, Tolmay J did
not
,
as the first respondent stated under oath, strike the matter off the
roll allegedly declaring the 25 November 2013 order valid.
The
first respondent deliberately misled the magistrate’s court in
this regard.
[20.2]
Instead, as evidenced by the confirmatory affidavits of Hannine Drake
and Lauren Sue Richards-Wiehe as well as the
order made by Tolmay J,
the matter was simply removed from the roll because it became
opposed.
[20.3]
The first respondent in her affidavit dated 11 March 2013 alleges, on
the one hand, that the matter was removed and,
in the same breath,
also alleges that the matter was struck from the roll in her
presence. Clearly these two contradictory
statements are
mutually destructive.
[20.4.]
On 14 February 2014, the applicant filed its replying affidavit.
[20.5]
On 4 March 2014 the third respondent postponed the second
respondent’s rescission application on the basis that
the
matter is
lis pendens
in the High Court.
[20.6]
However, on 11 March 2014, the first respondent obtained the 11 March
order which seeks to set aside all previous orders
issued by the
magistrate/maintenance court, and therefore all four orders which are
the subject matter of the main application,
under misleading
circumstances. The 11 March 2014 order was granted without any
knowledge of or notice to the applicant or
the second respondent.
[20.7]
On 12 March 2014, the applicant filed its main heads of argument in
this application.
[20.8]
On 24 March 2014, the first respondent filed her heads of argument in
this application, which she personally signed.
[20.9]
On 27 March 2014 the applicant became aware, for the first time, of
the 11 March 2014 order when the order was served on
the applicant by
the third respondent accompanied by a notice in terms of
section 16(3)
of the
Maintenance Act.
[20.10
]
On 31 March 2014 the second respondent became aware, for the first
time, of the 11 March 2014 order when the applicant informed
it
thereof.
[21]
The 11 March 2014 order, in relevant part,
reads as follows: —
“
1.1
In terms of
section 28
of Act 99 of 1998 the court hereby authorizes
the attachment of a debt to wit: SENTINEL RETIREMENT FUND, SENTINEL
HOUSE, 1 S………….,
S…………,
P……….. to pay the Applicant an amount of
R134 400.00 in respect of
arrear maintenance.
1.2
This amount is to be paid to
BANK
: A…….. BANK
ACCOUNT
NUMBER : 9…………….
ACCOUNT
HOLDER : C. M……………
In
favour of the Applicant, Mrs. Choice Mtambo
2.
Furthermore, the 2
nd
Respondent is further ordered to pay
an amount of R172 600.00 in respect of monthly maintenance for a
period of 13 months
into the account of the MAGISTRATE RANDBURG,
A………... BANK, Account number 4……….
Branch
code 6………. under reference number
14…………...
3.
Such payments are to be made
immediately as they become due to the 1
st
Respondent.
”
[22]
Because the order is susceptible of various
interpretations the applicant still seeks clarity as to whether the
maintenance’s
court can order it to make a lump sum payment of
future maintenance. This is similar to the relief sought in
terms of prayer
1 of Part B of its Notice of Motion which reads as
follows: —
“
1.
declaring that an order directing the applicant to pay an amount of
future maintenance in one lump sum is contrary to the provisions
of
sections 37A and 37D of the Pensions Funds Act, 1958, read with
the
Maintenance Act, 1998
;”
[23]
Due to the unclear wording of the court
order, it still remains unclear whether the magistrate/maintenance
court was ordering monthly
payments or a lump sum payment of 13
months’ future maintenance. Hence, the applicant
continued with the relief sought
in this application.
[24]
The 31 March 2014 order caused the
applicant to amend the relief sought in Part A of its notice of
motion as follows: —
“
1.
This is an application wherein the applicant seeks interim relief
pending the finalisation of the review proceedings as contemplated
in
Part B of the notice of motion.
2.
Since the Applicant’s Heads of Argument were filed (on 14 March
2014) additional facts arose that are pertinent and relevant
to the
case at hand. These additional facts arise from the issuing by
the Third Respondent of a new maintenance order on
11 March 2014 (the
‘11 March Order’) and which was only brought to the
Applicant’s attention on 27 March 2014.
These new facts
are set out in detail in the Applicant’s supplementary
affidavit dated 3 April 2014 and are referred to below
to the extent
necessary.
3.1
The 11 March Order handed down by the Third Respondent is suspended;
3.2
Staying the notice issued in terms of section 16(3) of the
Maintenance Act 1998 (“
Maintenance Act&rdquo
;), issued by the
clerk of the Third Respondent on 24 March 2014;
3.3
The Applicant is prohibited from making any payment to the First,
Second, Third or Fourth Respondents;
3.4
Holding the First Respondent in constructive contempt and imposing a
sentence on the First Respondent that the courts deems
fit; and
4.5
The First Respondent pays the cost of this application on attorney
and client scale.
”
[25]
The parties filed additional heads of
argument and affidavits as a result of the 11 March 2014 court order.
Arrear
maintenance
:
[26]
At the court hearing, the applicant
consented to the payment of R192 000 in respect of arrear
maintenance to the first respondent
and this amount was deposited
into the account of the Magistrate Randburg Absa Bank. The
applicant’s consent was made an
order of the court.
[27]
The amended prayers are sought pending the
review of the judicial proceedings leading up to them (as set out in
Part B of the Notice
of Motion). This would, at first blush,
appear not to be competent. Excluded from the definition of
“administrative
action” in the Promotion of
Administrative Justice Act (“
PAJA
”)
3 of 2000 is an action which was not taken by an organ of state
insofar as such organ exercises a power in terms of the
Constitution
or a provincial constitution or exercises a public power or performs
a public function in terms of any legislation.
“Organ of state”
is said to bear “the meaning assigned to it in section 239 of
the Constitution”. The latter
provision defines an organ of
state as: —
“
(a)
any department of state or administration in the national, provincial
or local sphere of government; or
(b)
any other functionary or institution —
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation, but does not include a court or a judicial
officer.
”
[28]
Sentinel states that this problem can be
resolved by falling back on the provisions of section 24 of the
Supreme Court Act
59 of 1959 which provide as follows: —
“
24.
Grounds of review of proceedings of inferior courts.
[1]
(1)
The grounds upon which the proceedings of any inferior court may be
brought under review before a provincial division, or before
a local
division having review jurisdiction, are —
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or the commission of an offence
referred to in Part 1 to 4, or section 17, 20 or 21 (in
so far as it
relates to the aforementioned offences) of Chapter 2 of the
Prevention and Combating of Corrupt Activities Act, 2004
, on the part
of the presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.
(2)
Nothing in this section shall affect the provisions of any other law
relating to the review of proceedings in inferior courts.
”
(Currently,
the relevant section is
section 22
of the
Superior Courts Act,
2013
which came into operation on 12 August 2013. The current
application was, however, launched on 31 July 2013.)
[29]
A 'gross irregularity' in proceedings can
occur in many different ways, particularly in the case of
administrative bodies. In regard
to inferior courts, there are
relatively few examples, although the following have occurred: the
making of an obviously unlawful
adoption order; conduct of a
magistrate precluding a full hearing of an application for the
rescission of a judgment; substantially
defective court proceedings
flowing from the failure by a clerk of the children's court to comply
with the provisions of the rules
of that court; and a magistrate
misdirecting himself on questions of fact and/or law in such a manner
as to constitute a gross
irregularity in the proceedings. A
gross irregularity must also be prejudicial before review proceedings
will succeed.
[30]
An erroneous interpretation by a judicial
officer of provisions of the Constitution of the Republic of South
Africa, 1993, having
the effect that the judicial officer did not
apply the supreme law of the land, has been held to be as fundamental
an irregularity
as one can get. Hearing matters on an ex parte
basis for no reason whatsoever is grossly unconstitutional as is the
grant
of incompatible orders, on the same day in the same matter
which, by necessity, will prejudice a party.
[31]
Sentinel’s reliance on this section
of the Supreme Court Act 59 of 1959 in the circumstances of this
case, where so many gross,
prejudicial procedural irregularities were
committed by the magistrate’s court, is warranted. It is
thus strictly speaking
unnecessary to have prayer 2 of Part B of
Sentinel’s Notice of Motion postponed to a later date.
The magistrate clearly
misdirected himself on questions of law in
such a manner as to constitute a gross irregularity in the
proceedings. However,
the manner in which Part A of the Notice
of Motion was amended has been set out above. (Why it was
sought to amend the Notice
of Motion in this manner is unclear to the
court.) Hence, regard is only had to the amended relief set out
in the amended
Notice of Motion with the addition of prayer 1 of part
B of the Notice of Motion which is a declaratory order pertaining to
the
correct legal position.
Is
Sentinel Retirement Fund entitled to a stay of the court orders
?
[32]
An analysis of the provisions of the
Pension Fund Act 24 of 1956 is called for.
[33]
Section 37A(1) of the
PFA
provides as follows:—
“
37A(1)
Save
to the extent permitted by this Act, the Income Tax Act, 1962 (Act
No. 58 of 1962), and the
Maintenance
Act, 1998
, no benefit provided for in the rules of a registered
fund (including an annuity purchased or to be purchased by the said
fund
from an insurer for a member), or right to such benefit, or
right in respect of contributions made by or on behalf of a member,
shall, notwithstanding anything to the contrary contained in the
rules of such of a fund, be capable of being reduced, transferred
or
otherwise ceded, or of being pledged or hypothecated, or be able to
be attached or subjected to any form of execution under
a judgment or
order of court of law, or to the extent of not more than three
thousand rand per annum, be capable of being taken
into account in a
determination of a judgment debtor’s financial position in
terms of section 65 of the Magistrates’
Court Act, 1944 (Act
No.32 of 1944), and in the event of a member or beneficiary concerned
attempting to transfer or otherwise
cede, or to pledge or
hypothecate, such benefit or right, the fund concerned may withhold
or suspend any benefit in pursuance of
such contributions, or part
thereof:
Provided
that the fund may pay any such benefit or any benefit in pursuance of
such contributions, or part thereof, to any one or
more of the
dependants of the member or beneficiary or to a guardian or trustee
for the benefit of such dependent or dependants
during such period as
it may determine
.”
[emphasis added]
[34]
Section 26(4)
of the
Maintenance Act
99 of 1998
provides as follows: —
“
26(4)
Notwithstanding anything to the contrary contained in any law,
any
pension
, annuity,
gratuity or compassionate allowance or other similar benefits
shall
be liable to be attached or subjected to execution under any warrant
of or any order issued or made under this Chapter in
order to satisfy
a maintenance order
.”
[emphasis added]
[35]
Furthermore,
an order in terms of
section 16(2)
of the
Maintenance Act may
direct the pension fund on a monthly basis to pay maintenance
payments on behalf of that member from the member’s pension
fund.
[2]
[36]
For ease of reference
section 16(2)
is
quoted in full: —
“
16
Maintenance and ancillary orders
(1)
…
(2)(a)
Any court: —
(i) that has
at any time, whether before or after the commencement of this Act,
made a maintenance order under subsection (1)(a)(i)
or (b)(i);
(ii) that
makes such a maintenance order; or
(iii) that
convicts any person of an offence referred to in section 31(1),
shall,
subject to paragraph (b)(i), make an order directing any person,
including any administrator of a pension fund, who is obliged
under
any contract to pay any sums of money on a periodical basis to the
person against whom the maintenance order in question
has been or is
made, to make on behalf of the latter person such periodical payments
from moneys at present or in future owing
or accruing to the latter
person as may be required to be made in accordance with that
maintenance order if that court is satisfied: —
(aa)
in the case of subparagraph (i), after hearing such evidence, either
in writing or orally, as that court may consider necessary;
(bb)
in the case of subparagraph (ii), after referring to the evidence
adduced at the enquiry or the application for an order by
default, as
the case may be; or
(cc)
in the case of subparagraph (iii), after referring to the evidence at
the trial, that it is not impracticable in the circumstances
of the
case.
(b)
A court-
(i)
contemplated in paragraph (a)(i) shall only make an order referred to
in paragraph (a) on application; and
(ii)
that convicts any person of an offence referred to in section 31(1)
shall make such order whether or not any penalty is imposed
in
respect of that offence or any order is made under section 40(1).
”
[37]
In the matter of
Mngadi
v Beacon Sweets and Chocolates Provident Fund and Others
[2003] 7 BPLR 4870 (D)
at page 4874 it
was held that it is clear from
section 26
of the
Maintenance Act, and
in particular
section 26(4)
thereof that arrear maintenance is
referred to and not amounts which will become applicable in the
future. The court however
held at page 4874 that:—
“
It
is clear from the above section, including subsection (4) that
arrear maintenance is referred to and not amounts which will
become
applicable in the future. It is clear from the case of S v Botha
2001 (2) SACR 281 (E) per Jansen J and Liebenberg
J
that where an order had been made for the payment of maintenance in
terms of
section 29
of
Maintenance Act there
is no bar to
making
a continuing order for payment
from accused’s pension fund, the Government Employees Pension
Fund.
”
[emphasis
added]
[38]
Thus, what is clear from this judgment is
that benefits which have already accrued to a member of a pension
fund may be attached
and the pension fund ordered to pay it over to
the party requiring the maintenance for the children. An order
may also be
made that, as and when benefits will accrue, in future,
they are to be attached and paid over to the party requiring the
money
for purposes of the maintenance of children.
[39]
However, the court went further and held
that, at common-law, a wife can impugn a disposition made by a
husband from a joint estate
where such disposition was made in fraud
of his wife’s rights and with appreciation that it would
prejudice those rights.
The order made by Nicholas J was to
order the pension fund and (incorrectly the employer as well) to
retain the father’s
withdrawal benefit so as to make equitable
and proper provision for the support and maintenance of the children.
[40]
It was further held at page 4875 of the
Mngadi
judgment
that: —
“
An
analysis of
section 37A(1)
, which has been set out earlier in
this judgment, can be conveniently divided into its constituent parts
as follows –
1.
The savings preamble that preserves the position in the
Pension Funds
Act itself
, the Income Tax Act
58
of 1962
, and the
Maintenance Act, 1998
, and expressly makes the
rest of the subsection subject to those Acts.
(Conspicuous
in its absence is the
Divorce Act 70 of 1979
.)
2.
The prohibition provides that no benefit in the extended sense
provided shall be capable of being reduced, transferred or otherwise
ceded, or of being pledged or hypothecated, or be liable to be
attached or subjected to any form of execution under a judgment
or
order of a court of law. (Even the rules of the Fund cannot provide
for such and in addition the Fund is empowered to withhold
or suspend
payment thereof.)
3.
The proviso protecting dependants entitles the fund to pay any such
benefit or any benefit in pursuance of such contributions,
or part
thereof, to any one or more of the dependants of the member or
beneficiary or to a guardian or trustee for the benefit
of such
dependant or dependants during such period as it may determine.
The
last mentioned proviso is a general empowering one, which enables the
fund
to pay to dependants, without specifying those arising out of
maintenance orders made in the Maintenance Courts
. The provisions
of Chapter 5 refer specifically to the enforcement of maintenance
orders.
The
maxim generalia specialibus non derogant has been applied in
countless cases and provides that where there are general words
in a
later Act capable of reasonable and sensible application without
extending them to subjects specially dealt with by earlier
legislation, a court is not entitled to hold that earlier and special
legislation has been indirectly repealed, altered or derogated
from
merely by force of such general words, without any indication of a
particular intention to do so. See Seward v The Vera Cruz
(1884) 10
App Cas 59
at 68, Gentiruco AG v Firestone SA (Pty) Ltd
1972 (1) SA 589 (A) at 603C–E.
The
force of that maxim is greatly enhanced when one considers that the
special provisions relate to a later Act, ie the
Maintenance Act and
these must take precedence over the earlier general provisions of the
Pension Funds Act.
I
do not believe that the Adjudicator can be faulted for holding that
the provisions of
subsection 26(4)
do
not permit a Fund to hold moneys for future maintenance
.
”
[emphasis
added]
[41]
The court, after careful analysis, held
that the provisions of
section 26(4)
, save for certain
exceptions, do not allow for the payment of maintenance which is not
in arrears.
[42]
However in
Mngadi
the court held that where a member resigned from a pension fund with
the specific objective of thwarting payment then the relevant
sections of the
Maintenance Act and
PFA may be interpreted to include
the payment of future maintenance in one lump sum.
Section 37A(1)
, and in particular the proviso thereto of the
PFA, is clearly open to such an interpretation.
[43]
It was also emphasised in the
Mngadi
case that the
Maintenance Act was
only a partial codification of the
common law and that regard should also not be lost of the
Constitutional mandate to fashion
effective relief for any of the
rights entrenched in it as is was in
Fose
v Minister of Safety Security
[1997] ZACC 6
;
1997 (3) SA 786
(CC)
at paragraph 69.
[44]
In the instant case there is a dispute of
fact regarding the
bona
or
mala fide
s
or otherwise of the second respondent in resigning from his work and
this issue cannot be decided on affidavit. Whether
the second
respondent is dissipating his assets as in the
Mngadi
matter is also unclear. In the
Mngadi
matter the court ordered that a fund could be ordered to pay a
benefit to a member for so long as the member was liable to pay
maintenance and to deduct such maintenance from the benefit monthly
should such member be
mala fide
.
[45]
The point was also taken that Sentinel
should have been joined as a party in the maintenance proceedings.
A very good exposition
regarding when a party has to be joined in
proceedings is to found in
Gordon v
Department of Health: Kwazulu-Natal
(337/07)
[2008] ZASCA 99
;
2008 (6) SA 522
(SCA);
[2009] 1 All SA 39
(SCA) ;
2009 (1) BCLR 44
(SCA);
[2008] 11 BLLR 1023
(SCA) (17 September 2008)
where the following is stated in paragraph [9] at
page 44: —
“
[9]
The Du Preez
[3]
and Traub
[4]
decisions had nothing to do with non-joinder, a fact acknowledged by
the Labour Appeal Court. They were concerned primarily with
the audi
alteram principle in circumstances where a public body had failed to
afford certain individuals a hearing in matters in
which their
interests and rights were at stake. The issue in our matter, as it is
in any non-joinder dispute, is whether the party
sought to be joined
has a direct and substantial interest in the matter. The test is
whether a party that is alleged to be a necessary
party, has a legal
interest in the subject matter, which may be affected prejudicially
by the judgment of the court in the proceedings
concerned.
[5]
In the Amalgamated Engineering Union
1949
(3) SA 637
(A)
it
was found that ‘the question of joinder should . . .
not depend on the nature of the subject matter . . . but
. . . on the
manner in which, and the extent to which, the court’s order may
affect the interests of third parties’.
[6]
The court formulated the approach as, first, to consider whether the
third party would have locus standi to claim relief concerning
the
same subject-matter, and then to examine whether a situation could
arise in which, because the third party had not been joined,
any
order the court might make would not be res judicata against him,
entitling him to approach the courts again concerning the
same
subject-matter and possibly obtain an order irreconcilable with the
order made in the first instance.
[7]
This has been found to mean that if the order or ‘judgment
sought cannot be sustained and carried into effect without
necessarily
prejudicing the interests’ of a party or parties
not joined in the proceedings, then that party or parties have a
legal interest
in the matter and must be joined.
[8]
”
[46]
On a proper construction of the above
dictum Sentinel and the second respondent should have been jointed in
the proceedings.
[47]
Section 7
of the
Divorce Act 70 of
1979
potentially creates an exception to the payment of a lump sum in
respect of future maintenance.
[48]
Whilst
section 37A
of the
Pension
Funds Act appears
to be the only section allowing any reduction of a
pension benefit, this is not the case by virtue of subsections 7(7)
and
7(8) of the
Divorce Act which
read as follows: —
“
(7)(a)
In the determination of the patrimonial benefits to which the parties
to any divorce action may be entitled, the pension
interest of a
party shall, subject to paragraphs (b) and (c), be deemed to be
part of his assets.
(b) ...
(c) ...
(8)
Notwithstanding the provisions of any other law or of the rules of
any pension fund —
(a) the court
granting a decree of divorce in respect of a member of such a fund,
may make an order that—
(i) any part
of the pension interest of that member which, by virtue of
subsection (7), is due or assigned to the other party
to the
divorce action concerned, shall be paid by that fund to that other
party when
any pension benefits accrue in respect of that member
;
(ii) an
endorsement be made in the records of that fund that that part of the
pension interest concerned is so payable to that other
party;
(b)
any law which applies in relation to the reduction, assignment,
transfer, cession, pledge, hypothecation or attachment of the
pension
benefits, or any right in respect thereof, in that fund, shall apply
mutatis mutandis with regard to the right of that
other party in
respect of that part of the pension interest concerned
”
.
[emphasis added]
[49]
In this regard paragraph 10 (at page 5701)
of the matter of
Griffin v Central
Retirement Annuity Fund
[2004] 5
BPLR 5700 (PFA)
is instructive.
[50]
Thus the provisions of the
Divorce Act
override
section 37A
of the
Pension Funds Act. In
terms of
the
Judicial Matters Second Amendment Act 55 of 2003
,
section 7
of the
Divorce Act was
amended as follows: —
“
11.
Section 7
of the
Divorce Act, 1979
, is hereby amended by the
substitution in subsection (8)(a)
for
subparagraph (ii) of the following subparagraph:
(ii)
the registrar of the court in question forthwith notify the fund
concerned that an endorsement be made in the records of that
fund
that that part of the pension interest concerned is so payable to
that other party and that the administrator of the pension
fund
furnish proof of such endorsement to the registrar, in writing,
within one month of receipt of such notification;
”
.
[51]
Hence, the conclusion one has to reach, by
way of analogy, is that the Pension Fund does
not
have to be joined, but must be informed of an order against it by the
registrar of the court in divorce proceedings only but not
in other
proceedings.
[52]
Although it is trite that the maintenance
court has powers to substitute and amend its orders, it is also trite
that this does not
allow the maintenance court to disregard trite
principles of law.
[53]
Cases which also find application are the
cases of
Witvlei Meat (Pty) Ltd v The
Agricultural Bank of Namibia and Another Others
(A220/2012) [2013] NAHCMD 216 (26 July 2013)
;
Herf v Germani
1978 (1) SA 440
(T)
and the obiter
dictum in
Ondjava Construction CC v
Haw Retailers
2010 (1) NR 268
(SC)
which held that the
status
quo
should be retained and a stay of
execution granted in instances where the dictates of real and
substantial justice require it.
[54]
As stated in the textbook by Rosemary
Hunter, Johan Esterhuizen, Tashia Jithoo and Sandile Khumalo entitled
The
Pension Funds Act, 1956
: A
Commentary on the Act, regulations, selected notices, directives and
circulars
Hunter Employee Benefits Law
2010, a high court may grant the following orders: —
“
·
For
the deduction of maintenance from the provision held by a fund for a
member’s future benefit
as
and when the maintenance becomes payable
(although, in the view of one of the authors, it should have remained
unpaid for a period of 10 days before an equivalent amount
may be
deducted from the member’s benefit and paid to the maintenance
creditor
[9]
); and
·
When the member becomes entitled to a
benefit, or if the member is already entitled to a benefit, that
Ø
Payment by the fund of the benefit be
withheld as security for the payment by the member in the future of
maintenance; and
Ø
As and when an amount of maintenance
becomes payable (and, again in the view of one author, has remained
unpaid for a period of
at least 10 days) the fund must deduct the
amount of that maintenance from the benefit and pay it to the
maintenance creditor.
”
[emphasis
added]
[55]
In
De Rebus
September 2014
the following is stated
by the learned author Naleen Jeram at page 45: —
“
Where
orders are to be made against retirement funds, the fund/s must be
clearly identified and the amount to be attached must be
specified.
It must also be noted that the maintenance amount deducted from the
pension benefit payable by the fund is subject
to tax.
Moreover, the method of payment (whether payment should be made to
the court or some other mode of payment) should
be contained in the
order. The common practice is for the fund to pay the
maintenance ordered as a capitalised lump sum to
the court, which in
turn, pays the maintenance creditor on a monthly basis.
Maintenance officers or debtors and their representatives,
in any
maintenance inquiry, can contact retirement funds or their
administrators directly to establish membership and current benefit
values. It is important to note that a private retirement fund
is a separate juristic person and registered as such in terms
of
section 4 of the Pension Funds Act 24 of 1956 (and state funds
are established in terms of various Acts of parliament).
The
participating employer in the fund (the employer of the debtor) is a
distinct separate entity from the fund and hence any order
made
against the employer is not binding on the fund. The practical
difficulty facing many maintenance claimants is that
often they are
not aware that the member (maintenance debtor) has left service and
is entitled to a benefit payable by the retirement
fund. ... Thus,
maintenance creditors, to secure any future order granted by the
court, may request the fund to withhold the benefit.
”
[56]
The Part A relief sought, as amended, is in
the form of a restoration order pending the variation of the
magistrate’s court
order or the rescission thereof, or whatever
course of action the applicant seeks to take in terms of Part B of
the Notice of Motion.
[57]
In
the premises the court grants the order sought in Part A of the
amended Notice of Motion as set out above. The relief regarding
constructive contempt is also granted as the timing set out in the
applicant’s supplementary heads of argument clearly indicates
that the obtainment of the 11 of March 2014 court order was in order
to frustrate the hearing in this matter.
[10]
Order
[58]
The following order is made in respect of
part A of the Notice of Motion as amended:
1.
Declaring that an order directing the
applicant to pay an amount of future maintenance in one lump sum is
contrary to the provisions
of sections 37A and 37D of the
Pensions Funds Act, 1956, read with the
Maintenance Act, 1998
.
2.
The 11 March 2014 Order handed down by the
third respondent is suspended.
3.
Staying the notice issued in terms of
section 16(3) of the Maintenance Act 1998 (“
Maintenance
Act&rdquo
;), issued by the clerk of the third respondent on 24 March
2014.
4.
The applicant is prohibited from making any
payment to the first, second, third or fourth respondents.
5.
Holding the first respondent in
constructive contempt and imposing and sentencing the first
respondent to pay an amount of R6 000.00
(six thousand rand)
within 15 days of this order.
6.
The first respondent is ordered to pay the
costs of this application on an attorney and client scale.
JANSEN
J
JUDGE
OF THE HIGH COURT
For
the Applicant
Advocate MA Dewrance
Instructed
by
Bowman Gilfillan c/o Boshoff Inc c/o
Nortje Attorneys
(Reference:
Natasha Nortje) (012-424 7500/012 807 3192)
For
the First Respondent
C Mtambo (in
person)
For
the Second Respondent
Instructed
by
Ndweke Attorneys (Reference:
CMAT31326/MR VAN RENSBURG/EG (012-435 9444)
[1]
A
maintenance court constituted in terms of the former Maintenance Act
23 of 1963 (this statute has now been supplanted by another)
has
been held to be an ‘inferior court’ falling within the
ambit of the above definition, as was the children’s
court for
purposes of this section. See
Holtzhausen
v Linde
1978 (3) SA 27
(O)
at 31;
Nodala
v The Magistrate, Umtata
1992 (2) 696 (Tk)
.
[2]
S
v
Botha
2001
(2) SACR 281
(E)
.
[3]
Du Preez
and Another v Truth and Reconciliation Commission
[1997]
ZASCA 2
;
1997
(3) SA 204
(A)
.
[4]
Traub
and Others v Administrator, Transvaal
1989
(1) SA 397
(W)
.
[5]
Bowring
NO v Vrededorp Properties
CC
2007
(5) SA 391
(SCA)
para 21.
[6]
At
page 657.
[7]
See
also
Collin
v Toffie
1944
AD 456
at
464;
Home
Sites (Pty) Ltd v Senekal
1948
(3) SA 514
(A)
at
521A and
Peacock
v Marley
1934
AD 1
at
3;
Burger
v Rand Water Board
2007
(1) SA 30
(SCA)
para
7.
[8]
Bekker
v Meyring, Bekker’s Executor
(1828– 1849)
2 Menz 436.
[9]
This
would thus be different to the
Mngadi
-type
orders in which the fund’s obligation to pay the maintenance
was not dependent on the member’s payment default.
[10]
Tourvest
Holdings (Pty) Limited v Henning
(20239/13)
[2015] ZAGPPHC 63 (11 February 2015).