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[2015] ZAGPPHC 408
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Mantsho v Managing Director of the Municipal Employee Pension Fund and Others (37226/14) [2015] ZAGPPHC 408 (26 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
APPEAL
CASE NO: 37226/14
DATE: 26 JUNE
2015
In
the matter between:
LINKIE
TSHWARANO
MANTSHO
......................................................................................
Applicant
And
THE
MANAGING DIRECTOR OF THE
MUNICIPAL
EMPLOYEE PENSION
FUND
..........................................................
First
Respondent
AKANI
RETIREMENT FUND
ADMINISTRATOR
...........................................
Second
Respondent
CITY
OF TSHWANE METROPOLITAN
MUNICIPALITY
........................................................................................................
Third
Respondent
M
M LE GRANGE
N.O
...........................................................................................
Fourth
Respondent
COUNCILLOR
M I T MAHLANGU
N.O
................................................................
Fifth
Respondent
COUNCILLOR
B J MODISAKENG
N.O
................................................................
Sixth
Respondent
C
L SECHELE
N.O
.................................................................................................
Seventh
Respondent
N
E SETHOLE
N.O
....................................................................................................
Eight
Respondent
M
S MATHIVHI
N.O
.................................................................................................
Ninth
Respondent
G
MOKOMANE
N.O
.................................................................................................
Tenth
Respondent
COUNCILLOR
L T QHASHA
N.O
.....................................................................
Eleventh
Respondent
COUNCILLOR
C V N MADINI
N.O
....................................................................
Twelfth
Respondent
J
U D G M E N T
DEWRANCE
AJ
[1]
In
this application, the applicant seeks orders holding the third to
eleventh respondents (“respondents’) in contempt
of a
determination made by the Pension Funds Adjudicator on 19 March 2015
under case number PFA/GP 00006246/2013/MD; that
the respondents
be sentenced to pay a fine in the amount of R250 000.00 within
30 (thirty) days of the order, failing
which the respondents
were sentenced to a period not exceeding 6 (six) months (on the same
papers if need be).
[2]
On
4 December 2013, the Pension Fund Adjudicator received a complaint
from the Ombudsman for Long-Term Insurance. The crux
of the
complaint was that the applicant alleges that the first respondent
failed to provide her with a benefit statement from 2005
to 2013.
She noticed on her “
member’s
record card
”
that there was a withdrawal claim in June 2007 which was later
cancelled. She does not have knowledge of the claim.
The first
and second respondents failed to provide her with information
regarding the withdrawal. She eventually received
a benefit
statement for 2012.
[3]
She
approached the Pension Fund Adjudicator to compel the first
respondent to provide her with benefit statements from 2005 to 2013
and information regarding the withdrawal benefit claim made in 2007.
[4]
On
20 December 2013, the Pension Fund Adjudicator forwarded the
complaint to Akani Retirement Fund Administrators (Pty) Ltd
(“the
second respondent”) and the City of Tshwane Metropolitan
Municipality (“the third respondent”), affording
them an
opportunity to file responses by 20 January 2014. Only the
third respondent submitted its response.
[5]
After
considering the complaint, the Pension Fund Adjudicator made the
following determination:
“
1.
In the result, the order of this Tribunal is as follows:
1.1
the first respondent is ordered to provide the complainant with a
copy of her latest benefit statement and information regarding
a
withdrawal claim that the claimant submits was made in 2007, within
two weeks of this determination;
1.2
the third respondent must notify the first respondent of the
complainant’s termination of service and forward all the
necessary claim documentation to the first respondent, within two
weeks of this determination;
1.3
the first respondent is directed to pay the complainant the
withdrawal benefit, constituting contributions received for the
period August 2005 to November 2013, less any deductions permitted in
terms of the Act, within two weeks of receipt of the documentation
referred to above; and
1.4
upon making payment in terms of paragraph 6.1.3 above, the first
respondent is ordered to provide the complainant and this Tribunal
with a detailed breakdown of her withdrawal benefits, within two
weeks of making such payment.
[6]
The
applicant contends that the respondents have disobeyed the
determination and because the determination is “
deemed
to be a civil judgment by any court of law
”
as contemplated by section 30(O)(1) of the Pension Fund Act, 1956,
they are in contempt of this court.
[7]
It
is a crime to unlawfully and intentionally disobey a court order.
[1]
Contempt of court may be adequately defined as an injury committed
against the person or body occupying public judicial office,
by which
injury the dignity and respect which is due to such office or its
authority in the administration of justice is intentionally
violated.
[2]
[8]
A
division of the High Court has jurisdiction to punish summarily
anyone who
ex
facie curiae
commits a contempt of an inferior court which has no power to deal
summarily therewith.
[3]
[9]
In
Fakie
,
[4]
Cameron JA (as he then was) said that “
[t]his
type of contempt of court is part of a broad offence, which can take
many forms, but the essence of which lies in violating
the dignity,
repute or authority of the court
”.
In essence, it requires that the dignity and authority of courts, as
well as their capacity to carry out their functions,
should always be
maintained.
[5]
[10]
In
order to establish whether there was indeed contempt of court, it is
important to establish whether the Pension Fund Adjudicator
can be
accorded the status of a court. That is the first hurdle which
the applicant must jump.
[11]
Section
166 of the Constitution
[6]
identifies courts as the Constitutional Court; the Supreme Court of
Appeal; the High Courts, including any High Court of Appeal
that may
be established by an Act of Parliament to hear appeals from High
Court; the Magistrates’ Courts; and any other court
established
or recognised in terms of an Act of Parliament, including any court
of a status similar to either the High Courts or
the Magistrates’
Courts.
[12]
Section
6 of the Superior Courts Act
[7]
provides that the High Court of South Africa consists of the
following divisions: Eastern Cape Division; Free State Division;
Gauteng Division; KwaZulu-Natal Division; Limpopo Division;
Mpumalanga Division; Northern Cape Division; North West Division; and
Western Cape Division.
[13]
Each
division of the High Court consists of a judge president and one or
more deputy judge-presidents and as many other judges as
they may
determine and approved by the President.
[8]
[14]
The
Pension Funds Adjudicator is a creature of statute which is appointed
in terms of the provisions of the Pension Funds Act.
[9]
A Pension Funds Adjudicator (or his deputy or acting adjudicator) may
not be appointed unless he or she is qualified to be
admitted to
practice as an advocate under the Admissions of Advocates Act
[10]
,
, or as an attorney under the Attorneys Act
[11]
,
and has the necessary experience required by section 30C of the
Pension Funds Act.
[15]
The
main object of the Pension Fund Adjudicator is to dispose of
complaints lodged in terms of section 30A(3) of the Pension Funds
Act
in a procedurally fair, economical and expeditious manner.
[12]
In order to achieve his main object, the Pension Funds
Adjudicator:
[13]
[15.1]
shall
investigate any complaint and make an order which any court of law
may make;
[15.2]
may,
if it is expedient, and prior to investigating a complaint, require
any complainant first to approach an organisation established
for the
purpose of resolving disputes in the pension fund industry or part
thereof, and approved by the Registrar.
[16]
In
conducting the investigation, the Pension Funds Adjudicator may
follow any procedure which he or she considers appropriate in
conducting an investigation, including in an inquisitorial
manner.
[14]
No party is
entitled to be legally represented at proceedings before the Pension
Funds Adjudicator.
[15]
[17]
After
completing the investigation, the Pension Funds Adjudicator must send
a statement containing his or her determination and
the reasons
therefor, signed by him or her, to all the parties concerned as well
as to the clerk or the registrar of the court
which would have had
jurisdiction had the matter been heard by a court.
[18]
The
determination may be enforced in terms of the provisions of sections
30O of the Pension Funds Act. It provides as follows:
[16]
“
30O.
Enforceability of
determination
(1)
Any determination of the Adjudicator shall
be deemed to be
a civil judgment of any court of law
had the matter in question
been heard by such court, and shall be so noted by the clerk or the
registrar of the court, as the case
may be.
(2)
A writ or warrant of execution may be issued by the clerk or
the registrar of the court in question and executed by the
sheriff of
such court after expiration of a period of six weeks after the date
of the determination, on condition that no application
contemplated
in section 30P has been lodged
.
[19]
The
person who, in connection with the complaint does anything which is
done before a court of law, would have constituted contempt
of court,
shall be guilty of an offence and liable on conviction to a fine not
exceeding R1 million or to imprisonment for a period
not exceeding
one year, or to both such fine and such imprisonment.
[17]
[20]
If
regard is had to the provisions of the Pension Funds Act, it is clear
that the Pension Funds Adjudicator is not a High Court.
It is
also not “
any
other court established or recognised in terms of an Act of
Parliament, including any court of similar status to either the
high
courts or the magistrates’ courts
”.
[18]
[21]
In
Joint
Municipal Pension Fund and Another v Marthinus and Another
,
[19]
the court,
per
Snyders J (as she then was), after analysing sections 30M read with
section 30O, said the following:
“
The
purpose of section 30M read with section 30O, is to give effect to
the determination by the Second Respondent not to create
jurisdiction
for the purpose of an appeal as submitted. The proceedings
allowed in terms of section 30P is not an appeal
in the usual narrow
sense of the word, the section specifically states that.
The
argument that the present proceedings are an appeal effectively from
a judgment of this Court is, in my view, fallacious.
The
determination by the Second Respondent is not a judgment by this
Court. It is deemed to be for a specific purpose of
giving
effect thereto
. That is
the interpretation on the clear wording of the Act, apparent from
sections 30M, 30O and 30P. The legislature,
in my view,
refrained from referring in section 30P to a Court (as referred to in
section 30O(1)). If it did, the First Applicant’s
submission would have been perfectly valid.
”
(
emphasis added
)
[22]
In
Wright
,
[20]
Magid J had to determine whether section 17(15) of the then
Labour Relations Act 28 of 1956 included the power to permit the
content of such an order. Section 17(15) provided as follows:
“
Any
decision, award, order or determination of the industrial court may
be executed as if it is a decision, an award, order or a
determination made by the Supreme Court.
”
[23]
The
learned judge rejected the proposition that the section includes the
power to permit for contempt of such an order. Thus, it
stated:
[21]
“
In
my judgment section 17(15) of the Act does not have the meaning or
effect contended for by Mr Munks. The words ‘as
if it
is…an order...made by the Supreme Court’ do not convert
an order of the industrial court into an order of the
supreme court.
They simply mean that the procedure for execution of an order of the
industrial court is the same as the procedure
for execution of a
similar order of the Supreme Court. In this regard I agree with
the views expressed by Landman AM in National
Union of Metal Workers
of SA and Others v Med Laboratories (Pty) Ltd (1989) 10 ILJ 499 at
515-6.
”
[24]
In
the
Med
Laboratories
case
supra
,
the Industrial Court found that a decision of the Industrial Court is
not deemed to be a decision of the Supreme Court.
[22]
[25]
Magid
J was of the view that this section was introduced to give effect to
enforcing an order of the industrial court. This
was the
mischief which the legislature intended to cure.
[23]
[26]
Accordingly,
I am of the view that the Pension Funds Adjudicator is not a public
judicial officer and his determination is not an
order of court.
Therefore there can be no contempt of this court.
[27]
Accordingly,
the application is dismissed.
[28]
There
will be no order as to costs.
[29]
Accordingly,
I make the following order:
[29.1]
the
application is dismissed;
[29.2]
there
will be no order as costs.
DEWRANCE,
AJ
Representation
for the applicant
:
CounselAdv
L Maite
Instructed
by Attorneys: Ndekwe Attorneys
[1]
See
S v Beyers
1968 (3) SA 70
(A)
[2]
See
Melius de Villiers
Roman
Dutch Law of Injury
(1899) at 166
[3]
See
Attorney
General v Crockett
1911 TPD 893
[4]
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) at para
[6]
[5]
See
Fakie
supra
para [6]
[6]
Constitution
of the Republic of South Africa, 1996
[7]
Act
10 of 2013
[8]
See
section 6(2) of the Superior Courts Act
[9]
See
section 30B read with 30c of the
Pension Funds Act 34 of 1956
[10]
74
of 1964
[11]
53
of 1979
[12]
See
section 30D
of the
Pension Funds Act
>
[13]
See
section 30E
of the
Pension Funds Act
>
[14]
See
section 30J
of the
Pension Funds Act
>
[15]
See
section 30K
of the
Pension Funds Act
>
[16]
Section
30P
provides:
30P.
Access to court
(1)
Any party who feels aggrieved by a determination of the Adjudicator
may, within six weeks after the date of the
determination, apply to
the division of the High Court which has jurisdiction, for relief,
and shall at the same time give written
notice of his or her
intention so to apply to the other parties to the complaint.
(2)
The division of the High Court contemplated in subsection (1)
may consider the merits of the complaint made to the
Adjudicator
under
section 30A(3)
and on which the Adjudicator's determination
was based, and may make any order it deems fit.
(3)
Subsection (2) shall not affect the court's power to decide
that sufficient evidence has been adduced on which a decision
can be
arrived at, and to order that no further evidence shall be adduced.
[17]
See
section 30V(d)
[18]
See
section 166(e) of the Constitution
[19]
[2007]
1 BPLR 94 (W) at p 97
[20]
Wright
v St Mary’s Hospital, Melmoth and Another
1993 (2) SA 228
(B and CLD),
[21]
See
p 229B-C
[22]
National
Union of Metal Workers of SA and Others v Med Laboratories (Pty) Ltd
(1989) 10 ILJ 499 pp 515 - 516
[23]
See
Wright
supra
p 229D