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[2009] ZAGPPHC 186
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ICS Pension Fund v Sithole NO and Others (44886/07) [2009] ZAGPPHC 186 (5 May 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH DIVISION, PRETORIA)
Case no.: 44886/07
DATE:05/05/2009
In
the matter between:
ICS
PENSION FUND
….....................................................................
Applicant
and
WINS
SITHOLE
N.O.
.............................................................
First
Respondent
HD
McLEOD
N.O.
............................................................
Second
Respondent
J
PEMAN.O.
…......................................................................
Third
Respondent
REGISTRAR
OF PENSION FUNDS
...............................
Fourth
Respondent
(Applicant
in application for leave to appeal)
JUDGMENT
Coram:
RABIE J
[1]
This is an application for leave to appeal. In the main application
before this Court the applicant, a registered pension fund,
applied
for the reviewing and setting aside of the decision dated 13 April
2007 of the Financial Services Board of Appeal, which
consisted of
the first, second and third respondents. In that decision of the
Financial Services Board of Appeal it dismissed an
appeal by the
applicant against an earlier decision of the fourth respondent.
[2]
In the judgment delivered by myself in the main application I granted
the relief claimed by the applicant and made a further
order
substituting the aforesaid decision of the Financial Services Board
of Appeal.
[3]
The fourth respondent in the main application subsequently filed an
application for leave to appeal against the whole of my
judgment and
order including the order for costs. For purposes of this application
I shall continue to refer to the parties as
they were referred to in
the main application.
[4]
The fourth respondent based its present application on some 18
grounds set out in a Notice for Application for Leave to Appeal.
The
grounds relate to almost every finding I made contrary to the initial
submissions on behalf of the fourth respondent.
[5]
In my view, and mainly as a result of the decision I have arrived at.
it is not necessary to refer to each of these grounds.
The main
application primarily entailed the interpretation of certain of the
provisions of the
Pension Funds Act, 24 of 1956
, and more
particularly
section 15F
thereof. In addition this court had to make
certain factual findings on the evidence presented to it as well as
to apply those
facts to the relevant legislative provisions.
[6]
The interpretation of the legislation was fundamental to the
adjudication of the respective rights and obligations of the parties.
Similarly, the relevant facts were in dispute as well as the import
of whatever factual findings were to be made.
[7]
The criterion which should be adopted in an application of this
nature is whether there is a reasonable prospect of success
on
appeal. (Cf. Van Heerden v Cronwright and Others
1985 (2) SA 342
(T);
Janit v Van Den Heever and Another NNO (No 2)
2001 (1) SA 1062
(W)).
In considering whether there are reasonable prospects that the appeal
might succeed I must consider whether there is a reasonable
prospect
that another Court might hold that this Court erred in respect of its
findings.
[8]
In matters of interpretation, especially where no legal precedent
exists, and where involved and intricate issues of law are
at stake,
it would, in my view, generally be wrong to suggest that there is no
reasonable prospect that another Court might find
differently. In my
view this is such a case and leave to appeal should be granted.
Furthermore, the relevant events occurred over
a long period of time
and were not properly and comprehensively documented. As such the
drawing of inferences from such facts is
not in all instances a
simple matter. The facts are inextricably linked to the
interpretation to be given to the aforesaid legislation.
In the
result I am of the view that leave to appeal should be granted.
[9]
In the light of the complexity of the matter, the far-reaching
consequences of any order and the fact that this had probably
been
the first time that the particular legislation had been interpreted
by a court, I deem it necessary to refer the matter to
the Supreme
Court of Appeal.
In
the result the following order is made:
1.
Leave is granted to appeal against the whole of the judgment and
order of this court.
2.
The aforesaid leave is to appeal to the Supreme Court of Appeal.
3.
The costs of the application for leave to appeal shall be costs in
the appeal.
CASE
NO: 44886/07
FOR
THE APPLICANT (RESPONDENT IN THE APPLICATION FOR LEAVE TO APPEAL):
INSTRUCTED BY:
ADV
WATT-PRINGLE SC THYNE HUNTER STERHUI2EN INC C/O FRIEDLAND HART REF.:
T VAN STRAATEN
FOR
THE 4th RESPONDENT (APPLICANT IN THE APPLICATION FOR LEAVE TO
APPEAL): INSTRUCTED BY:
ADV
PILLAY
ROOTH
WESSELS MALULEKE REF.: F. ASMAL/B24632
DATE
OF JUDGMENT: 5 MAY 2009