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[2015] ZAGPPHC 518
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S v Government Employees Pension Fund and Others (35511/2012) [2015] ZAGPPHC 518 (16 July 2015)
SAFLII
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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
[GAUTENG
DIVISION, PRETORIA]
CASE
NUMBER: 35511/2012
DATE:
16 JULY 2015
In the matter
between:
[S………]
[R………]
[S………]
.........................................................................................
APPLICANT
And
GOVERNMENT
EMPLOYEES PENSION
FUND
...................................................................................................................
FIRST
RESPONDENT
CYNTHIA PANA
NAKEDI
.........................................................................
SECOND
RESPONDENT
EXECUTOR, ESTATE
LATE [O…..]
[S…….]
................................................
THIRD
RESPODENT
MASTER OF THE
HIGH COURT, PRETORIA
......................................
FOURTH
RESPONDENT
JUDGMENT
A.J. LOUW AJ
[1] In this matter
Mr Heymans appeared for the Applicant, Mr Kabini appeared for the
First Respondent and Mr Holland-Muter for the
Second Respondent.
[2] When the matter
was called Mr Heymans informed me that the First Respondent made an
allocation of the lump sum gratuity amount
arising from the death of
the late [O.G. S…….]. The allocation as made by the
First Respondent were accepted by the
Applicant and the Second
Respondent and I was requested to record the allocation made. In the
circumstances only costs of the application
remained in dispute. I
will briefly refer to the facts insofar as it may be relevant for
purposes of costs and will include a recordal
of the allocation made
in the order.
[3] The late [O...
S………] was the husband of the Applicant. I will
hereinfurther refer to [O.G. S……]
as “the late
S……..]”. The late S……….]
passed away on the 9th December 2010.
[4] The late S…….]
was employed by the Department of Statistics of the South African
Government Services and was in
employment of the Government since the
11th June 1984. The Applicant was married to the late S……]
since the 15th
November 1996 and in terms of a nomination by the late
S…….], the Applicant was the sole beneficiary of the
gratuity
amount payable on the late [S………’s]
death. On the 9th March 2011 the
First Respondent in
writing in a letter informed the Applicant of certain pension
benefits and also promised that arrangements had
been made to pay the
gratuity amount (after a tax deduction) amounting to the sum of R2
095 231.83 into the account of the Applicant.
As the nominated
beneficiary of the late [S……..], the Applicant at all
times was entitled to claim payment of the
gratuity amount.
[5] In terms of the
Government Employees Pension Law Proclamation 21 of 1996 (“the
Act”) of the First Respondent, the
board of trustees of the
First Respondent shall manage the fund. (See Section 6 of the Act).
In terms of Section 22 of the Act
a member such as the late [S…….]
is entitled to nominate to whom his gratuity be paid on his death. A
member of the
First Respondent may nominate a beneficiary or a number
of beneficiaries. A member is also entitled to apportion the gratuity
amongst
a number of beneficiaries. Section 22(2) of the Act expressly
reserves the right to the board of trustees of the First Respondent
to exercise a discretion as to whether the payment of the gratuity
would be made in accordance with the member’s wish.
[6] On the 11th
March 2011 the First Respondent paid an amount of R2 141 996.70,
being the gratuity amount referred to before as
well as interest,
into the account of the Applicant and immediately thereafter reversed
the payment. Because she could not convince
the First Respondent to
make payment of the gratuity amount she instituted these proceedings
on the 21st June 2012. The relief
sought was for payment of the
amount of R2 141 996.70 alternatively that the First Respondent
furnishes reasons for its decision
to reverse the payment and for
ancillary relief.
[7] The First
Respondent’s reluctance to make payment of the full amount of
the gratuity to the Applicant arises from the
fact that the First
Respondent was of the view that the daughter of the Second Respondent
was also a child of the deceased. The
Applicant had no knowledge of
the existence of this child until after the death of the late [S……..]
The First Respondent
was of the view that payment must be made of
part of the gratuity to the said child. A dispute arose about the
paternity of the
minor child. It was the First Respondent’s
view that the Applicant must compel the Second Respondent to subject
the Second
Respondent’s minor child to DNA testing.
[8] When the matter
came up for adjudication before Neukircher, AJ, on 4 March 2013, she
made an order that the Second Respondent
be joined as Second
Respondent and that the executor of the estate of the late [S……]
be joined as the Third Respondent
and lastly that the Master of the
High Court be joined as Fourth Respondent.
[9] Eventually the
matter was enrolled for hearing before me. The allocation of the
gratuity was made on the morning of the hearing
before me. It is
accordingly clear that despite the fact that the First Respondent had
the discretion to allocate the gratuity
in any well-reasoned fashion
it would decide upon, the matter did not get finalised because the
First Respondent failed to make
any allocation.
[10] The Applicant
was entitled to bring the application in view of the delay by the
First Respondent to make up its mind. It never
was the obligation of
the Applicant to compel the Second Respondent to subject her minor
daughter to DNA testing. Eventually, as
a result of Neukircher, AJ
making an order in that regard, the minor child was subjected to DNA
testing and it transpired that
she indeed is the daughter of the late
[S…….]
[11] The late [S…….]
also had another son (K…… A……. S……..)
from a previous
marriage.
[12] The First
Respondent eventually made an allocation of the gratuity in terms
whereof the Applicant receives 40%, 10% goes to
the eldest daughter
born from the marriage between the Applicant and the late S……,
18% thereof goes to the youngest
daughter born out of the marriage
between the late S…….. and the Applicant, 20% of the
gratuity was allocated to
the minor daughter from the relationship
between the late S………. and the Second Respondent
and 12% of the gratuity
was allocated by the First Respondent to the
son K…….. A……… S……….
[13] Despite the
passionate plea by Mr Kabini on behalf of the First Respondent I have
to conclude that the necessity for the application
arose because of
the reluctance of the First Respondent to make a decision regarding
the allocation of the gratuity. In that regard
the discretion at all
times was with the First Respondent in terms of Section 22 of the
Act.
[14] The Applicant’s
institution of the application cannot be faulted. She, after all, was
the nominated beneficiary of the
whole of the gratuity. The First
Respondent is on record in an e-mail between Mr Moloi, the legal
assistant manager of the First
Respondent and Mr Kabini that it has
the discretion in terms of Section 22 of the Act to make the
allocation but will only do so
after the court has confirmed the
details of the lawful dependents and/or eligible beneficiaries. This
is simply an abdication
of the obligations of the First Respondent
and cannot be a basis whereupon any of the First or Second
Respondents must be ordered
to pay the costs of this application.
Neither is it any ground to order each party to pay its own costs as
was requested by Mr
Kabini.
[15] It is the
obligation of the First Respondent, in terms of Section 22 of the
Act, to make a decision. Naturally that decision
must be a fair and
equitable decision but if any of the parties (inter alia the
Applicant and the Second Respondent) is not satisfied
with the
decision, then that decision can be taken on review. If the First
Respondent is uncertain as to whether any person is
indeed the
offspring of the late S………, then the First
Respondent must make arrangements for DNA testing or
whatever
procedures it may require to help it to come to a decision. However,
the First Respondent cannot abdicate its obligation
on the basis that
this court must make the decision.
[16] Mr Kabini
argued that the First Respondent played a major role in ensuring that
a fair distribution of the gratuity takes place
and that it tried to
avoid further litigation. The answers to these arguments are set
forth above.
[17] Mr Mr
Holland-Muter, on behalf of the Second Respondent, argued that no
costs order ought to be made against the Second Respondent.
I agree
that a costs order ought not to be made against the Second
Respondent.
[18] Mr Heymans, on
behalf of the Applicant, argued that the funds to be paid to the
Second Respondent on behalf of her minor daughter,
must be protected
and I must order some form of protection of that money. This
submission implies that the Second Respondent may
possibly not
properly manage, in her capacity as mother and guardian of the minor
daughter, the funds allocated to her. I agree
with Mr Mr
Holland-Muter that there is no basis for such an order. In fact there
is authority, which I accept to be correct, that
the appointment of a
curator bonis would interfere with the relationship between the minor
and her guardian if the Second Respondent’s
power to manage the
minor’s property is removed. This can be done only if the court
is satisfied that the guardian is incapable
of doing so. The fear
that a guardian might make an ignorant decision is insufficient for
purposes of appointment of a curator
bonis or to put some burden upon
the Second Respondent with regard to the management of her minor
daughter’s portion of the
funds. There is no basis to regard
her as incapable of doing so. From the papers, she appears to be a
capable person who, when
it became necessary, took up the challenge
of these proceedings in order to protect her minor daughter’s
interests. She is
a police officer. I find no basis to disentitle her
to personally look after her minor daughter’s funds.
[19] There is
authority that a court can, on application and mero motu, order that
monies payable to minor children be administered
by persons other
than their guardians.
See the matter of
Dube N.O. v Road Accident Fund
2014 (1) SA 577
(GSJ) where the
authorities in this regard are discussed. It is clear from that
judgment as well as from the matter of Ex parte
Oppel: In re:
Appointment of Curator Ad Litem and Curator Bonis
2002 (5) SA 125
(C) that the court
has to consider the facts of the particular matter. As stated before,
I find no reason to disentitle the Second
Respondent from
administering the funds of her minor daughter.
[20] I accordingly
make the following order:
1. It is recorded
that the Applicant and the First and Second Respondents agreed to the
following allocation of the gratuity amount
(that is not the monthly
pension payable) as a result of the death of the late [O…….]
[G……..] [S………..],
ID No 6………….]
and pension number in the Government Employees Pension Fund 9….…:]
1.1 40% to the
Applicant (S………… R………
S………), ID No 6…………….
plus pro rata interest;
1.2 12% plus pro
rata interest to K…….. A…….. S………,
ID No 8………….;
1.3 10% plus pro
rata interest to M…….. E……… S………,
ID No 8…………..;
1.4 18% plus pro
rata interest to R………. O…… S…….,
ID No 9……………;
1.5 20% plus pro
rata interest to R………….. N…... ID
No 0……………….
2. Payment to be
made by the First Respondent of the allocations no later than 60 days
from filing of the claim forms with the First
Respondent; and
3. The above
allocation does not affect the monthly pension the Applicant
receives.
4. The First
Respondent is ordered to pay the opposed costs of this application of
both the Applicant and the -fifst Respondent
on a party and party
scale.
AJ LOUW/AJ