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[2014] ZAGPPHC 284
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Thompson v President of the Republic of South Africa and Others (59864/2012) [2014] ZAGPPHC 284 (9 May 2014)
REPUBLIC OF SOUTH
AFRICA
NORTH GAUTENG
HIGH COURT PRETORIA (REPUBLIC OF SOUTH AFRICA)
CASE
NO: 59864/2012
DATE:9
MAY 2014
In the matter
between
G M
THOMPSON
............................................................................................................................
APPLICANT
AND
THE PRESIDENT OF
THE REPUBLIC
OF
..................................................................
FIRST
RESPONDENT
SOUTH AFRICA
SPEAKER OF
PARLIAMENT OF
THE
.....................................................................
SECOND
RESPONDENT
REPUBLIC OF SOUTH
AFRICA
MINISTER OF
FINANCE
.............................................................................................
THIRD
RESPONDENT
MINISTER OF
PUBLIC
INTERPRISES
..................................................................
FOURTH
RESPONDENT
MINISTER OF
SOCIAL
DEVELOPMENT
..................................................................
FIFTH
RESPONDENT
TRANSNET SECOND
DEFINED BENEFIT
....................
SIXTH
RESPONDENT FUND ("THE TSDBF”)
TRANSNET
LIMITED
..........................................................................................
SEVENTH
RESPONDENT
TRANSPORT PENSION
FUND
...............................................................................
EIGHTH
RESPONDENT
JUDGMENT
BAQWA J
[1] This is an
application for joinder of the eighth respondent as a further
respondent in the main application under case number
59864/2012 and
for leave to supplement the papers in order to set out the cause of
action and the facts upon which the applicant
relies against the
eighth respondent in more detail.
[2] Further,
applicant seeks leave to institute a class action under section 38(c)
of the Constitution, alternatively under the
common law, as a
representative of the pensioners of the sixth and eighth respondents
in the main application.
[3] Joinder is
permitted under Uniform Rule 10 which provides as follows; ‘Joinder
of parties and causes of action
(1) Any number of
persons, each of whom has a claim, whether jointly, jointly and
severally, separately or in the alternative, may
join as plaintiffs
in one action against the same defendant or defendants against whom
anyone or more of such persons proposing
to join as plaintiffs would,
if he brought a separate action, be entitled to bring such action,
provided that the right to relief
of the persons proposing to join as
plaintiffs depends upon the determination of substantially the same
question of law or fact
which, if separate actions were instituted,
would arise on each action, and provided that there may be a joinder
conditionally
upon the claim of any other plaintiff failing.
(2) A plaintiff may
join several causes of action in the same action. ”
See Ndlambe
Municipality v Lester and Others
[2012] 3 All SA 441
(ECG) at (6)
[4] Further, where a
party has a direct and substantial interest in any order the court
might make in proceedings, or if such order
cannot be sustained or
carried into effect without prejudicing that party, he is a necessary
party and ought to be joined in the
proceedings unless the court is
satisfied that he has waived his right to be joined. The term "direct
and substantial interest”
means an interest in the right, which
is the subject matter of the litigation, and not merely an indirect
financial interest in
the litigation, where a party is a necessary
party, the Court will not deal with the issues until joinder has been
effected.
See Harms, Civil
Procedure in the Supreme Courts B10.2
[5] The applicant in
the main application seeks an order under section 38 of the
Constitution that the policy of the sixth respondent
alternatively
the rule of the sixth respondent, limiting the increases granted to
pensioners of the sixth respondent to 2 percent
per annum, be set
aside and that the pensioners of the sixth respondent be paid certain
amounts and increases in accordance with
a motion adopted by the
National Assembly.
A prayer for the
same relief was incorporated into this application but it was
abandoned at the commencement of these proceedings.
Upon such
abandonment, the respondents, with the exception of sixth and eighth
respondents withdrew their opposition to the application
for joinder.
[6] The applicant is
a pensioner of the sixth respondent and on that basis he only sought
relief in the main application against
the sixth respondent. In this
application, he seeks to join the eighth respondent to the main
application on the basis that the
legal relationship between members
of the eighth respondent and the eighth respondent on the one hand
are identical to that between
the applicant and the sixth respondent
on the other.
[7] In a report by
the Portfolio Committee on Public Enterprise addressed to the
National Assembly, it was recommended as follows:
’4.
Recommendations
The task team of the
Committee tabled a report with recommendations to the Portfolio
Committee on 2 February 2010. The Committee
deliberated on the report
and adopted the following recommendations:
Transnet and the
National Treasury should make a cash injection of R1,963 billion into
the Fund which will be a funding solution
for TSDBF and TPF:
(a) An ex gratia
payment of 5 months’ pension;
(b) A base
upliftment of 3,21%; and
A 75% of CPI
annual increase going forward on the 3,21% uplifted base.
Conclusion
Both Transnet and
National Treasury participated in the process that led to the
recommendations, and the figures above were derived
from
presentations
of both TSDBF and
TPF combined. They agreed that the funding solution was affordable. ”
‘TSDBF”
is an abbreviation for Transnet Second Defined Benefit Fund
alternatively sixth respondent.
‘TPF” is
an abbreviation for Transnet Pension Fund alternatively eighth
respondent.
[8] The report was
tabled on 9 November 2010 for consideration by the National Assembly,
and the report was adopted by the National
Assembly on 18 November
2010.
[9] Eighth
respondent does not deny that the reference to the TPF in the report
is a reference to the eighth respondent. It is however
denied that
the TPF incurred any obligations as a result of the report adopted by
the National Assembly.
[10] Applicant
submits that the TPF has a direct and substantial interest in the
order the Court might make in respect of firstly,
the motion adopted
by the National Assembly regarding the payments and benefits to be
made by the TSDBF and the TPF to the pensioners
and secondly, the
amount to be injected into the TSDBF and the TPF which will be a
funding solution for the TSDBF and TPF.
[11] Mr Antonie SC
who represents the sixth and eighth respondents submits that
applicant seeks to utilise the procedure under Rule
10 to introduce
an action which did not exist at the launch of the main application.
In reply applicant’s
counsel Mr Pelser SC (with Mr Basson) have referred me to the
response by third respondent in paragraph
66 of his answering
affidavit where he states as follows:
’AD PARAGRAPHS
36-38 Save to point out that the recommendations of the Portfolio
Committee provided for the payment of the
amount of R1,963 billion to
both the TSDBF and the TPF, and not just the TSDBF as alleged by the
applicant the contents hereof
are admitted. ”
What is clearly in
the contemplation of the third respondent is that the injection of
the cash amount cannot be considered separately
with regard to the
two entities, TSDBF and TPF but jointly. By necessary implication in
my view, joinder of the eighth respondent
becomes inevitable even
though applicant was initially proceeding against sixth respondent
only. Common sense and logic necessitates
that eighth respondent be
before Court.
[12] Upon a reading
of paragraph 4 of the Recommendations in the report by the Portfolio
Committee (supra) it does not appear that
the mentioning of the TPF
in that report was incidental. The simultaneous cash injection into
both the TSDBF and TPF as a funding
solution implies that both
institutions were facing the same or similar challenges. This view is
bolstered by the concluding remarks
in that report which refer to the
fact that both Transnet and National Treasury participated in the
process that led to the recommendations
and that the recommended
figures were derived from presentations of both TSDBF and TPF
combined and that they agreed that the funding
solution was
affordable. On this basis I find that the TPF is a necessary party
and that it must be joined as a party to the litigation.
[13] Applicant has
indicated his intention to amend the relief sought in the Notice of
Motion to seek the same relief against the
TPF as that sought against
the TSDBF once the eighth respondent is joined as a party to the main
application. He submits in this
regard that the rules of the TPF
contain a similar rule as that of the TSDBF in that the increases
granted to pensioners annually
is limited to 2 percent. Even though
this submission is denied by the eighth respondent, the latter does
not set out the grounds
on which this denial is made. In the
circumstances joinder of the TPF would be permitted in terms of Rule
10 of the Uniform Rules
since the right to the relief sought "depends
upon the determination of substantially the same question of law or
of fact.”
[14] In the main
application applicant has only made out a case against the sixth
respondent and if the eighth respondent is joined,
it follows that
applicant would have to supplement its papers to set out the cause of
action against the TPF with reference to
its rules and the reasons
why the TPF should be compelled to give effect to the terms of the
motion adopted by the National Assembly.
[15] The eighth
respondent, if joined, would be, like all the respondents, entitled
to respond or make submissions regarding these
issues.
[16] In the result I
have come to the conclusion that the following order be granted.
16.1 Prayers 5 to 13
of the notice of motion are postponed sine die.
16.2 The eighth
respondent is joined as the eighth respondent in the main application
under case number 59864/2012.
16.3. Leave is
granted to the applicant to supplement his papers within 30 days from
the date of this order, in order to set out
in more detail his cause
of action and the facts upon which he relies against the eighth
respondent;
16.4 The eighth
respondent shall deliver its notice of opposition to the main
application within 5 days from the date of delivery
of the
supplemented papers, should it wish to oppose the relief sought
against it in the supplemented papers; and
16.5 The eighth
respondent shall deliver its answering affidavit within 15 days from
notifying the applicant of its intention to
oppose the application.
16.6 The first to
seventh respondents are granted leave to respond to the supplemented
papers as provided for in the Rules of Court.
16.7. The costs of
this application are reserved for determination by the Court hearing
the main application. SAJli BAQWA (JUDGE
OF THE HIGH COURT)
Counsel for the
applicant: Adv Q Pelser SC
Adv JL Basson
Instructed
by: Hurter Spies Inc
Counsel for the
third respondent: Adv PM Mtshaulana
Instructed
by: State Attorney
Counsel for sixth
and eighth respondents: Adv M Antonie SC
Instructed
by: Wersmans Attorneys