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[2020] ZASCA 126
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Public Servants Association of South Africa and Others v Government Employees Pension Fund and Others (886/2019) [2020] ZASCA 126; [2020] 4 All SA 710 (SCA) (9 October 2020)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 886/2019
In
the matter between:
THE
PUBLIC SERVANTS ASSOCIATION OF SOUTH AFRICA    FIRST
APPELLANT
JAMES
KILGOUR VAN WYK

SECOND

APPELLANT
BENSON
BOY ISHMAEL OLIFANT
THIRD
APPELLANT
and
GOVERNMENT
EMPLOYEES PENSION FUND

FIRST RESPONDENT
MINISTER
OF FINANCE

SECOND

RESPONDENT
MINISTER
OF PUBLIC SERVICE AND ADMINISTRATION      THIRD
RESPONDENT
SEVENTEEN
TRADE UNIONS                     FOURTH

– TWENTIETH RESPONDENT
PUBLIC
SERVICE BARGAINING COUNCIL
TWENTY FIRST RESPONDENT
Neutral
citation:
Public Servants Association of South Africa and
Others v Government Employees Pension Fund and Others
(Case no
886/2019)
[2020] ZASCA 126
(9 October 2020)
Coram:
NAVSA, SALDULKER, SCHIPPERS and DLODLO JJA and GOOSEN AJA
Heard:
7 September 2020
Delivered:
This judgment was handed down electronically by circulation to
the parties' representatives via email, publication on the Supreme

Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10h00 on 9 October 2020.
Summary:
Pension Fund – Government Employees Pension Fund Rules require
consultation with employee organisations before a decision
is made
regarding actuarial interest – discussion of what is meant by
consultation – Rule must be complied with –
principle of
legality – cannot be remedied by consultation with
non designated functionary after implementation of decision
–
decision liable to be set aside.
ORDER
On
appeal from
: Gauteng Division of the High Court, Pretoria (Van
der Westhuizen J, sitting as court of first instance): judgment
reported
sub nom Public Servants Association of South Africa and
Others v Government Employees Pension Fund and Others
[2019]
ZAGPPHC 199
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and substituted as follows:
‘
(a)
The delay in bringing the application for review is excused;
(b)
The decision of the first respondent to amend, with effect from 1
April 2015, the F(Z) and
A(X) factors utilised in the calculation of
actuarial interest under Rule 14.4.2 of the Rules of the Government
Employees Pension
Fund is reviewed and set aside;
(c)
The first respondent is ordered to consult with the first applicant,
the second respondent,
the fourth to nineteenth respondents and all
other employee organisations as defined in the Rules of the
Government Employees Pension
Fund concerning the calculation of the
actuarial interest referred to in (b) above, in respect of those
affected thereby;
(d)
The first respondent is to pay the costs of the application,
including the costs of two
counsel where so employed.’
JUDGMENT
Navsa
JA (Saldulker, Schippers and Dlodlo JJA and Goosen AJA concurring):
[1]
This appeal concerns, principally, the propriety of a decision of the
first respondent,
the Government Employees Pension Fund (the GEPF),
taken on 3 December 2014, in relation to the calculation of the
actuarial interest
of members whose membership terminated after 1
April 2015.  As the name suggests, the GEPF was established to
administer and
manage pension fund matters and schemes relating to
government employees.  The first appellant, the Public Servants
Association
(the PSA), a trade union registered in terms of the
Labour Relations Act 66 of 1995 (the LRA), and the second and third
appellants,
Mr James Van Wyk and Mr Benson Boy Olifant (both former
members of the PSA), respectively, had sought, in the Gauteng
Division
of the High Court, Pretoria (Van der Westhuizen J), to have
the aforesaid decision by the GEPF reviewed and set aside. The high

court dismissed the application with costs, including the costs of
two counsel. It is against that order that the present appeal,
with
the leave of the court below, is directed. The detailed background is
set out hereafter.
[2]
The PSA represents over 237 000 members employed in the public
service, in both the
national and provincial spheres of government.
The GEPF is a pension fund contemplated in section 2 of the
Government Employee
Pension Law, 1996 (the GEP law).
[1]
It operates under the GEP law and the rules of the GEPF.
[2]
The applicant and the fourth to twentieth respondents are all trade
unions and parties to the twenty first respondent, the Public
Service
Co-ordinating Bargaining Council (the PSCBC), established and
registered in terms of s 36(1), read with Schedule 1, of
the LRA. The
aforesaid respondents are also ‘employee organisations’
contemplated in the GEPF rules.
[3]
The application launched in the high court by the appellants was
served on current
members of the GEPF and on members who, as at 1
April 2015, were members but whose membership had been terminated
subsequently,
in terms of the GEPF’s rules. The application was
also served on beneficiaries of former members who had become
entitled
to benefits after 1 April 2015 as well as on former spouses
of members, for whom a divorce debt was recorded.
[4]
Actuarial interest lies at the heart of this appeal. It is thus
necessary to deal
with that concept at the outset. Actuarial interest
is, simply, a member’s accrued benefit payable to the member by
the GEPF,
as determined by the rules. More precisely, it is described
in the definitions section of the rules as follows:
‘
[A]n
amount representing the value of a member’s benefits in the
Fund based on his or her pensionable service, calculated
in terms of
rule 14.4.2...’
[5]
Rule 14.4.2, in turn, reads as follows:
‘
The
actuarial interest of a member who has—
(a)
not attained the age of 55 years, shall be calculated in accordance
with the following formula: Provided that the actuarial interest

shall not be less than the amount of the benefit described in rule
14.4.1
(a)
:
N(adj)
x FS x F(Z) x [1 + (0.04 x (60 – Z))]
Where—
N(adj)
is the member’s period of pensionable service, taking into
account all adjustments thereto in terms of the rules, as
at the date
of termination of service;
FS
is the member’s final salary;
F(Z)
is a factor determined by the Board acting on the advice of the
actuary, and after consultation with the Minister [of Finance]
and
the employee organisations;
Z
is the age of at which the member attains his or her
pension-retirement date;
(b)
attained the age of 55 years, shall be calculated in accordance with
the following formula: Provided that the actuarial interest
shall not
be less than the amount of the benefit described in rule 14.4.1
(a)
:
G
+ [A x A(X)]
Where—
G
is the amount of the gratuity the member would have received in terms
of the rules had he retired on that date. For this purpose,
a member
with less than 10 years pensionable service, will be deemed to
qualify for the same benefit as a member with 10 years
or more
service;
A
is the amount of the annuity the member would have received in terms
of the rules. For this purpose, a member with less than 10
years
pensionable service, will be deemed to qualify for the same benefit
as a member with 10 years or more service;
A(X)
is a factor determined by the Board acting on the advice of the
actuary
, and after consultation with the Minister and the employee
organisations.
’ (Emphasis added)
[6]
The appellants contended, in the court below and before us, that the
GEPF had unlawfully
taken its decision on 3 December 2014 to amend,
with effect from 1 April 2015, the F(Z) and A(X) factors in the
formula contained
in the rule set out in the preceding paragraph,
relying only on an actuarial valuation report, that is, without prior
consultation
with the PSA or any of the employee organisations
prescribed by the rules. In short, the appellants contended that the
GEPF, in
acting as it did, offended against the principle of
legality.
[7]
In seeking relief in the court below the appellants stressed the
importance of consultation.
They emphasised the fiduciary duty of the
GEPF’s Board of Trustees to act in the best interests of GEPF
members and beneficiaries.
They pointed to the fact that the GEPF is
funded by contributions from government and persons employed in the
public service. Insofar
as the board’s power to amend the
actuarial factors is concerned, the appellants took the view that the
GEPF was fulfilling
a ‘legislative’ duty to make rules
but that this role made it necessary, in terms of the rules and the
contextual setting,
to engage in processes that acknowledge
collective bargaining.
[8]
The appellants also placed reliance on s 29 of the GEP law, the
relevant parts of
which provide as follows:
‘
(2)
The rules referred to in subsection (1), may—
…
(b)
from time to time prescribe the conditions subject to which and the
rate at which members shall contribute to the [GEPF] and
the times at
which and the manner in which such contributions or any amounts which
are payable to the Fund in terms of this Law,
shall be deducted from
the pensionable emoluments of members and paid over to the Fund;
…
(g)
from time to time prescribe the benefits or other amounts payable
from the [GEPF] to members, their former spouses or their

beneficiaries determined in the rules in cases or classes or
categories of cases specified by the rules, and the manner in which

such benefits or other amounts shall be calculated and the times at
which and the manner in which such benefits or other amounts
shall be
paid;  [and]
…
(k)
that any change to the rules shall satisfy the condition that the
real value of the accrued benefits of every member of the
[GEPF], as
represented by the [GEPF’s] actuarial liability towards the
member and his or her beneficiaries, shall be maintained
in such
change, and provide for the manner in which such value is to be
determined.’
[9]
According to the appellants, both the GEP Law and the rules place a
premium on the
relationship between the State, as employer, and its
employees as members of the GEPF. Both the GEP law and the rules make
various
references to instances where negotiations or consultations
are required, with the responsible Minister and the labour
representative
in the PSCBC or employee organisations. This is an
aspect dealt with in some detail later in this judgment. The
appellants were
adamant that the need for consultation, negotiation
and consensus, central to the employment relationship founded in the
LRA, is
a constant theme in the GEP law and the rules.
[10]
The rules set out the circumstances in which benefits become payable
to members who leave the
service of the State. A range of benefits,
such as lump sum payments, gratuities and annuities, are payable
under certain circumstances,
including discharge from service,
retirement or end of contract. Benefits will differ, depending on a
member’s length of
service, or whether they have reached
pensionable age.
[11]
Rule 14.4 determines the benefits payable.
The appellants submitted that the amendment of the actuarial
interest
factors in the formula in that sub-rule, giving rise to the
application brought in the court below, is vital to the benefits
to
be paid to a member who resigns, dies, divorces, or is discharged
either for misconduct, or on account of ill health, or
for a
reason not specifically mentioned in the rules and who is not
entitled to benefits provided elsewhere in the rules. The pensionable

amounts of members in these categories depend directly on the
application of the F(Z) and A(X) factors. Any amendment to the F(Z)

or A(X) factors directly impacts upon the ultimate pension received
by members. It was submitted on behalf of the appellants that
this
was the rationale behind the rules requiring consultation prior to an
amendment of those factors. A decision to amend could
only be
determined by the GEPF Board, so the argument was made, by acting on
the advice of an actuary
after
consultation with the Minister
and employee organisations.
[12]
‘Employee organisation’, according to the rules of the
GEPF, includes:
‘
1.6.1
an admitted employee organisation referred to in s 1 of the Public
Service Labour Relations Act, 1994;
1.6.2
an admitted employee organisation referred to in s 1 of the Education
Labour Relations Act 146 of 1993;
1.6.3
an employee organisation or other employee structure formed by
personnel appointed in terms of the
Intelligence Services Act 38 of
1994
, the Defence Act 44 of 1957 and the South African Police Service
Act 68 of 1995 (Act 68 of 1995) and which has for negotiation
purposes been accepted by the employer.’
[13]
In the envisaged consultation process, according to the appellants,
the relevant parties will
be provided with all the relevant
information to enable meaningful engagement. The GEPF was accused of
not having done any of this
prior to the impugned decision being
taken.
[14]
The appellants insisted that there had been no prior consultation, as
contemplated in the rule,
with either the PSA or any of the other
employee organisations. The GEPF decision took effect on 1 April
2015. The first time that
the PSA or the other two appellants became
aware of the decision was during July 2015. The PSA became aware of
the decision when
it started receiving queries from its branches who,
in turn, had been receiving enquiries from members.
[15]
After an article concerning the amendment was published in a Sunday
newspaper with national circulation,
some PSA members, including the
second appellant, approached the PSA and complained about the absence
of any response to their
enquiries from the GEPF concerning the
amendment. The second appellant, with reference to his latest pension
benefit statement,
wanted to know why the benefit initially indicated
by the GEPF had been substantially reduced. This is how the
statements and reduced
benefit, on which the query was based, was
described by the PSA:
‘
This
statement [as at 31 March 2015] reflects a resignation benefit of
R2 547 716.00. In contrast, Mr van Wyk’s
31 May 2015
benefit statement … reflects a resignation benefit of
R2 399 206.00. This is a reduction of R148 510.00
or
5.8%.’
[16]
On 4 June 2015 Mr Abel Sithole, the then Acting Principal Executive
Officer of the GEPF, wrote
a letter to Mr Frikkie de Bruyn, General
Secretary to the PSCBC, proposing that pension-related matters,
including consultation
on the actuarial interest factors and queries
surrounding reduced actuarial interest, be placed on the agenda of
the PSCBS’s
next meeting. The following parts of the letter are
instructive. First, Mr de Bruyn referred to sections of the GEP law
and a number
of rules, including rule 14.4.2, which require
consultation and interaction by the Board with, amongst others,
employee organisations
and the Minister. The introductory sentence to
the paragraph containing the references is revealing. It reads as
follows:
‘
The
GEP Law and the GEPF Rules make various references to instances where
negotiations or consultation is required with the Minister
of Finance
and/or labour representatives in the
PSCBC or employee
organisations
, representing the Public Service, prior to any
changes being made to, amongst others, the benefit structures of the
Fund…’
(Emphasis added).
[17]
As revealing, is another part of that letter, which reads as
follows:
‘
[I]t
seems appropriate for the Fund to establish a direct and ongoing
relationship with the PSCBC…’
A
stated motivation, amongst others, was ‘[t]o facilitate
consultation or negotiations on the instances mentioned above
(particularly
around benefit improvements) as contemplated in the GEP
Law and/or the GEPF Rules’. A little later in the letter, the
Board
made the following statement:
‘
Due
to a lack of such a direct ongoing relationship, the GEPF has had
some difficulty in complying with the Rules around the consultation

process with the PSCBC. This is in regard to the F(Z) and A(X)
factors (also referred to as actuarial interest factors)... The

consultation process regarding these factors has been a subject of
material debate by the Board of Trustees of the GEPF in recent

times…’
Towards
the end of the letter the following appears:
‘
In
keeping with the main purpose of this letter, the GEPF would like to
strengthen its relationship with the PSCBC so as to, amongst
others,
deal with this and any other matters and to facilitate
the
consultation process contemplated in the GEP Law and the Rules
…
We propose that pension related matters be made a standing item
in the PSCBC agenda wherein the GEPF will present
any matters at the
next PSCBC meeting’.
This
letter came to the PSA’s attention by virtue of its membership
of the PSCBC.
[18]
When it became clear to the PSA that the GEPF wanted to consult,
after the decision to amend
had been made, the former wrote to the
latter, requesting that the decision be withdrawn pending a proper
consultation process.
This met with no success. There was also no
response from the Minister.
[19]
What followed was some form of
post hoc
consultation by the
GEPF, not directly with employee organisations but rather through the
medium of the PSCBC. A special PSCBC
Council meeting was scheduled
and held on 23 September 2015. The union representatives, after
discussions about benefits in terms
of the rules, stated that there
was no endorsement of the presentation by the GEPF and requested that
the amendments be put on
hold so as to allow meaningful input from
employees.
[20]
On 1 October 2015 Mr Sithole, now as Principal Executive Officer of
the GEPF, received a letter
from the GEPF’s actuary indicating
that, due to administrative factors, the actuarial interest factors
come into effect on
1 April in the year following the statutory
valuation. In relation to the present case, that would mean it was
put into effect
on 1 April 2015. In short, this occurred before the
envisaged consultation process.
[21]
On 7 October 2015, the PSA’s attorneys wrote to the GEPF
calling upon it to reverse the
decision to amend the actuarial
factors and to re-instate the previously applicable factors. The
GEPF’s attorneys responded
by stating that the decision of the
Board of Trustees stood, and that changes in the actuarial interest
did not translate into
a change in the benefit structure.
[22]
The PSCBC met again on 29 October 2015. By this time it had become
clear that the GEPF had already
implemented the amendments. Employee
representatives asked that it be put on hold. A further meeting of
the PSCBC took place on
11 December 2015. After the amendment of the
actuarial interest factors had been discussed, unfortunately from the
perspective
of the PSA, the labour representative said the following:
‘
[I]f
they can then document that for us so that we are able to explain
these issues well to the affected members, then on that note
chair we
do accept the proposals or the amendments as proposed by the GEPF.’
[23]
The PSA insisted that the PSCBC process was not the proper one and
that, in any event, what is
recorded in the previous paragraph did
not absolve the GEPF from having to comply with the rules and
consult, not through the PSCBC
but through the channel prescribed by
the rules, namely, with employee organisations. The labour
representative on the PSCBC could
not bind the PSA. Not all of the
employee organisations required to be consulted, so the PSA
contended, are represented on the
PSCBC.
[24]
On 5 January 2016, the GEPF’s attorneys wrote to the PSA
stating that the GEPF’s
position on the amendment to the
actuarial factors remained unchanged.
[25]
The GEPF appears to have consulted with the Minister over an extended
period, commencing in January
2013, which makes it all the more
peculiar that the same emphasis was not placed on prior consultation
with employee organisations,
the PSA contended.
[26]
On 25 April 2016 the PSA demanded that the GEPF withdraw the
amendment. The GEPF’s stance
was that the PSCBC process
amounted to a form of condonation of the amendment in question. Mr
Sithole based this on the resolution
passed at the PSCBC. The PSA was
adamant that there is no mention of consultation with the PSCBC in
the rules and that the PSCBC
process was irrelevant. It also insisted
that the PSA’s representative at the meeting was not present at
the material time.
The aforesaid were the bases for the review
application in the court below.
[27]
In opposing the application, the GEPF pointed out that as at 31 March
2014 the GEPF had approximately
1 280 000 active members
and approximately 367 000 pensioners. GEPF members are members of
various trade unions, ‘most’
of which, according to the
GEPF, are recognised and admitted members of the PSCBC.
[28]
The GEPF considered the role of the actuary in terms of the rules to
be of cardinal importance.
Rule 4.8 obliges the Board to appoint an
actuary to be the valuator of the GEPF. In terms of rule 4.9 the
valuation must be done
at least every three years and the actuary
must provide a report to the board. In the present case the Board
considered it prudent
to have a valuation done every two years. The
GEPF noted the objectives of the valuation as follows:
‘
The
objectives of the statutory valuation of the GEPF are therefore,
among other things, to:
(a)
investigate and report on the financial position of the GEPF on an
ongoing basis by assessing whether the GEPF’s funding
level
meets the minimum funding requirement and the requirements of the
GEPF’s funding policy;
(b)
analyse the financial progress of the GEPF since the previous
statutory valuation;
(c)
analyse the sources of any surpluses or strains that have arisen in
the inter-valuation period;
(d)
determine the assumptions to be used in the current valuation;
(e)
advise on the required changes, if any, to the actuarial factors
;
and
(f)
determine the required employer contribution rate for the period to
the next valuation in respect of future service accrual
and the
expected strain or release to the GEPF if the employers contribute at
a different rate.’ (My emphasis.)
[29]
According to the GEPF, the result of the actuary’s valuation is
presented to the Board’s
Benefits and Administration
Sub-Committee, which then considers and interrogates it in detail.
The subcommittee then makes a recommendation
to the Board on whether
it should be accepted and approved. The valuation of the GEPF in
question in this appeal was at 31 March
2014. The suggestion appears
to be that the actuary’s valuation trumps consultation with the
employee organisations.
[30]
The GEPF denied that the decision taken to amend the actuarial
factors constituted a decision
reviewable under the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). The GEPF contended that
the valuation conducted
by the actuary showed that the actuarial
interest factors decreased, on average, as a result of a change in
the valuation basis
which, in turn, came as a result of changes in
demographic assumptions. The F(Z) factors decreased by 7.5% when
compared to the
previous F(Z) factors. The A(X) factors decreased on
average by 3.5% when compared with the previous A(X) factors. The
decrease
in the actuarial factors reduces the value of the benefits
payable to members to whom actuarial interest is due upon exit. All
of this being taken into account, it was submitted on behalf of the
GEPF that it is not surprising that one does not find any mention
by
the appellants that the actuarial factors recommended by the actuary
were not reasonable and not based on actuarially sound
principles.
Furthermore, so it was submitted, the appellants have not shown that
the recommended actuarial factors are not in the
best interests of
the GEPF. It has been shown, so it was said, that the PSA, even if
they had been consulted before the decision
to amend, would have
asked the Board not to approve the factors.
[31]
I pause to set out the PSA’s response, in its replying
affidavit, to those assertions by
the GEPF. In short, first,
notwithstanding the Board’s scepticism about whether employee
organisations could make a meaningful
contribution in relation to the
actuarial report, rule 14.4.2 required it to consult with them.
Second, the employee organisations
could certainly question
assumptions made by the actuaries and could question other aspects of
the report. Third, employee organisations
might want to consult and
take advice from actuaries of their own. Fourth, employee
organisations might have something to say about
the timing and manner
of the implementation of the amendments. Fifth, employee
organisations, one would have to accept, would want
to maximise
benefits for their members. Last, employee organisations might make
suggestions about increased contributions by government
and engage in
dialogue about it.
[32]
Minutes of the Board meeting reflected that the Board resolved on 3
December 2014 that rule 14.4.2
should be amended to require it to
notify the Minister and employer organisations, rather than consult
them. In terms of s 29 of
the GEP Law, a rule which reduces the
benefit payable from the GEPF may not have retrospective effect. The
rule change and its
validity, or subsequent implementation or
otherwise, was not an issue in this case. In respect of the decision
to alter the actuarial
interest factors, the Minister notified the
Board that he approved the decision. The GEPF dealt with the issue of
prior consultation
with employee organisations as is set out
hereafter.
[33]
The GEPF referred, in the first instance, to the definition of
‘employee organisation’
in the rules of the GEPF. The
GEPF contended that this meant the rules, properly construed,
contemplated consultation with employee
organisations at a forum
where labour issues are ordinarily negotiated, namely the PSCBC. To
require otherwise would be to fragment
the consultation process.
Moreover, so it was asserted on behalf of the GEPF, half of the Board
members of the GEPF are appointed
by members. Six of those are
nominated by employee organisations. In light of the above, it was
submitted that there can hardly
be a complaint of a failure to
consult employee organisations.
[34]
The Board, after the implementation of the amendment, sought to
engage the PSCBC on the basis
that it was prudent to do so. The GEPF
noted that there had been no objection to the PSCBC process by the
PSA. Furthermore, a PSA
representative was present at the meeting on
11 December 2015, referred to earlier in this judgment. Consequently,
he was part
of the decision taken. On 14 April 2016 the PSCBC wrote
to the GEPF, recording that there had been a full discussion of the
amendment
to the actuarial factors and that agreement had been
reached on the implementation of the amendment.
[35]
It was submitted on behalf of the GEPF that the expression ‘after
consultation’ did
not mean that there had to be agreement
between the person or entity being consulted and the decision maker.
It was also submitted
that the law permits consultation after the
event, such as occurred in the present case.
[36]
The GEPF denied that the decision in question was an ‘administrative
action’ in terms
of the PAJA. It was contended that in making
the decision the GEPF was not exercising a public power or performing
a public function.
It was asserted on behalf of the GEPF that the
Board was doing no more than complying with its fiduciary duty to act
in the best
interests of the GEPF, its members and beneficiaries, on
the advice of the actuary and within the requirements of the GEPF’s

minimum funding levels. The GEPF took the view that, in the event it
was held that the decision constituted an administrative action,

there was in any event an unreasonable delay in bringing the
application, which should not be condoned, especially since there

have been subsequent valuations of the Fund.
[37]
The GEPF noted that there was no countervailing valuation put up by
the PSA to contest the actuary’s
valuation. It was submitted
that there was case law in terms of which it was held that a decision
by a Board of Trustees was not
administrative action, as defined in
case law. It was contended that to have the matter referred back for
consultation would be
a waste of time as consultation had already
occurred. That, then, was the stance adopted by the GEPF. I now turn
to the adjudication
of the dispute by the court below.
[38]
In interpreting and applying the rule, the court below said the
following:
‘
On
a purposive reading of the afore quoted passage, there appears to be
two requirements that are to be considered when determining
the
respective factors, F(Z) and A(X). Those requirements are: advice
from the actuary and consultations with the Minister and
employee
organisations.
The
first requirement is that of the advice of the actuary. The informed
advice of the actuary is paramount in determining the respective

factors. That advice is provided on the strength of inter alia
important fiscal and other financial considerations that impact
upon
the determination of the respective factors, to which the Board of
GEPF [does] not have access to, [nor] the required expertise
to
consider, analyse or make informed decisions thereon. The actuary
referred to is that of the Board of the GEPF.’
[3]
[39]
The court went on to say the following concerning consultation:
‘
The
second requirement is that of consultation. The Board is obliged to
consult with the Minister and the relevant employee organisations.

This requirement appears from the language used in rule 14, the
syntax thereof and the grammatical rules to be applied. The
requirement
follows on the use of a specific punctuation tool, ie a
comma, which is immediately followed by the word “and”.
The
so-called Oxford comma. The purpose of the Oxford comma is to
introduce a second category, in the present instance that of
consultation.
In
the context of the GEP Law, the Board of the GEPF has fiduciary
duties in respect of its members as well as towards the fiscus.
The
one is not more important than the other. Both are of equal
importance. A balance is to be struck.
It
is submitted on behalf of the applicants that the requirement of
consultation is to be complied with prior to a determination
of the
relevant factors. It is further submitted on their behalf, that the
purpose of the prior consultation is to permit the consultees
to
obtain their own actuary to advise on what the appropriate factors
should be. That submission would entail that the Minister
would
likewise be entitled to appoint his or her own actuary to advise on
the appropriate factor.
In
my view, the context of the GEP Law and the rules promulgated
thereunder, do not lean to such interpretation. As recorded above

there is only one actuary involved, that of the GEPF.
The
purpose of the consultation required in the context of rule 14.4 is
to inform the Minister and the employee organisations of
the advice
of the actuary and of the effect of the proposed factors and to
discuss those issues, as those have financial implications
not only
for the employees, but also for the fiscus
.
It
is of fundamental importance to note that the rule only requires
consultation, and not the reaching of an agreement. The phrase
used
is “after consultation”. That phrase has been considered
by the courts on numerous occasions. It means nothing
more than
discussion and not to arrive at an agreement. The importance of this
difference is manifest.
In
my view, it does not matter whether the consultation took place prior
to or after the taking of the decision. The requirement
only requires
consultation and in terms of the dictum in
Premier,
Western Cape v President of the Republic of South Africa
[4]
… the Board of GEPF is not obliged to accept any input from
the employee organisations.
Compliance
with the first requirement is common cause. The dispute is in respect
of the second requirement. In this regard, there
is ample proof that
the Minister was consulted on the issue as required. The Minister in
fact acquiesced in that regard in the
form of a letter dated 28
January 2015.’
[5]
[40]
In relation to the time and manner of the
consultation that took place, the court below stated:
‘
It
is common cause that the members have direct representation on the
Board of GEPF. That much is clear from the composition of
the Board
of GEPF as recorded above. It is also common cause that the first
applicant is represented on the Board of GEPF.
It
is further apparent from the answering affidavit of the GEPF, that a
letter was addressed to the PSCBC during June 2015 from
which it is
clear that the GEPF was alive to the consultation process and that
the issue of the relevant factors advised on by
the actuary would be
discussed at the next PSCBC meeting. That meeting was held on 11
December 2015.
The
GEPF submitted that at the meeting of 11 December 2015, the PSCBC
agreed to the implementation of the relevant factors provided
by the
actuary.
It
is further submitted by the GEPF that the first applicant had a
representative on the PSCBC and, according to the attendance

register, was present at the meeting. The minutes of that meeting do
not reflect that the first applicant’s representative
was late.
Further in that regard, no proof was provided by the first
[applicant], who bears the onus in that respect, of any late
coming
on the part of that representative. It follows that the first
applicant was in fact “consulted” on the issue
of the
relevant factors to be used, both as a member of the Board of GEPF,
as well as part of the PSCBC. At neither time was any
objection
raised.
In
my view, determining the relevant factor primarily depends upon the
actuary’s advice. That much flows from the dicta in
Premier,
Western Cape v President of the Republic of South Africa
…
[6]
The GEPF is not obliged to accept the input of the employee
organisations. Furthermore, in the present instance, both parties
acquiesced in the determination of the relevant factors.’
[7]
[41]
Having reached the conclusions set out above the court below, as
stated earlier, dismissed the
application with costs. The court
below, because of the manner in which it decided the dispute between
the parties, did not consider
it necessary to deal with the issue of
whether condonation ought to have been granted and whether the
decision to alter the actuarial
interest factors constituted
administrative action, as defined in the PAJA, and further, whether a
conclusion in regard thereto
would be decisive. We are required at
the outset to deal with both of those questions.
[42]
There is presently no judicial consensus on whether decisions of
pension funds, either generally,
or in limited circumstances,
constitute administrative action as contemplated in the PAJA.
[8]
It must, in my view, depend on the nature of the power being
exercised by the fund, having regard to the related statutory
provision
or rule under which it is exercised.
[9]
However, in the present case, counsel were ultimately agreed that the
classification of the decision to amend the interest factors
is not
decisive and that it is not strictly necessary for that analysis to
be undertaken. The challenge to the decision in this
case is based on
a failure to comply with the rules of the GEPF, which are mandated by
the PFA. It is, in essence, a legality challenge.
It was accepted by
the parties, condonation aside, that if we were to conclude that rule
14.4.2 dictates that consultation should
precede a decision to alter
the actuarial interest factors and that consultation has to take the
form of consultation with employee
organisations, rather than through
the PSCBC, and that the majoritarian principle relied on by the GEPF
before us was without merit,
then the appeal should succeed.
Conversely, if we were to incline on the side of the stance adopted
by the GEPF, namely, that consultation
could occur after the decision
had been taken to alter the actuarial interest factors, that the
PSCBC was an appropriate forum
within which the consultation could
take place and that the consultation process was of minor importance
because it was superseded
by the important role of the Board’s
actuaries, the appeal falls to be dismissed.
[43]
The enquiry into the delay in launching the review application is the
anterior question, which
will determine whether the other questions
require to be addressed. Delay, and whether it should in the
circumstances of a particular
case be condoned, must feature in a
PAJA or legality review. In terms of the PAJA the outer limit is 180
days from being informed,
or from the time the person might
reasonably have been expected to know, of the administrative action,
within which an application
for the review thereof must be
brought.
[10]
Section 9(2) of
the PAJA enables a court, on application by a litigant, to grant an
extension of the 180-day period ‘where
the interests of justice
so require’. In respect of a legality review, it is a
long-standing rule that it must be initiated
without undue delay and
that courts have the discretion to refuse a review application in the
face of an undue delay or to overlook
the delay.
[11]
In exercising that discretion a court must be informed by the values
of the Constitution.
[12]
[44]
In considering whether the delay should be overlooked, a court will
have regard to the delay
and the attendant circumstances. The
chronology of events has to be revisited. As stated at the beginning
of this judgment, the
Board resolution concerning the alteration of
the actuarial interest factors was taken on 3 December 2014,
contemplating implementation
from 1 April 2015. In its founding
affidavit, the PSA stated that it first obtained knowledge of the
GEPF decision during July
2015. Shortly thereafter it received
queries from members concerning the benefits they had received
subsequent to the decision.
The GEPF in its answering affidavit
contended only that it was improbable that the PSA became aware of
the impugned decision as
late as July 2015 because its members served
on the GEPF Board of Trustees, suggesting knowledge of the decision
at an earlier
stage and consequently an earlier court challenge. This
stance by the GEPF discounts the continuing engagement between the
parties
after the decision was taken, albeit with entrenched
attitudes on both sides. The GEPF does not, however, take issue with
the assertion
by the second appellant that he only became aware of
the alteration and the effect it would have on his withdrawal
benefits on
12 July 2016 when he was contacted by the PSA’s
attorney. Nor does it take issue with the statement that the second
appellant
first approached the PSA with queries after an article on
the amendment to the actuarial interest factors had appeared in a
Sunday
national newspaper during August 2015. The GEPF, in an attempt
to sanitise its failure to engage employee organisations before the

decision was taken engaged the PSCBC, by way of the letter referred
to in para 17 above, proposing that pension related matters
be
discussed there and that issues such as consultation on actuarial
interest be placed on the agenda for the next meeting of the
PSCBC.
[45]
On 18 August 2015, the PSA wrote to the GEPF requesting that the
decision be withdrawn, pending
consultation as envisaged in rule
14.4.2. The GEPF, however, was determined to press on with the idea
that the matter should be
dealt with at the PSCBC. A special PSCBC
Council meeting was held on 23 September 2015. Labour’s
reaction was to call on
the GEPF to put the amendments on hold. They
requested time to make ‘meaningful inputs’. This, against
the fact that
the decision had already been taken. As to whether the
PSCBC was the appropriate forum the Employer, in this case
Government, asked
whether it was there only as observer. It clearly
did not understand its role. It was agreed by the meeting that labour
would consult
and revert.
[46]
On 7 October 2015 the PSA’s erstwhile attorneys wrote to the
GEPF calling upon it to reverse
the decision to alter the actuarial
interest factors. It was pointed out that the decision was taken in
contravention of the rules.
The GEPF’s response, in a letter
dated 28 October 2015, through its attorneys, is revealing. The
following is the contents
of that letter:
‘
We
wish to state the following:-
1)
That the [Board of Trustees] is scheduled to meet on 4 December 2015
to amongst others deliberate on the matter and unless a
resolution is
passed by [it] setting aside its previous resolution relating to the
“benefit structure”, the status
quo shall remain.
2)
That we wish not to deal at length with intricacies of this matter
and failing of such should not be construed as an admission
of any
issues and our Client’s rights are fully reserved herein’
[47]
A further meeting of the PSCBC was convened on 29 October 2015.
Labour again called for the amendments
to be put on hold. On 11
December 2015 the next meeting of the PSCBC was held. It was there
where the labour representative responded
as described in para 23
above.
[48]
On 5 January 2016 the GEPF’s attorneys wrote as follows:
‘
1)
That the [Board of Trustees] indeed has deliberated on this matter on
4 December 2015
.
2)
That’s its position as previously advised stands which has been
extensively articulated on in principle that “changes
in
actuarial interests are not changes to the benefit structure, albeit
such changes can result in an increase or a decrease in
the amount of
benefit paid to members on a particular mode of exit”.’
(Emphasis added).
[49]
On 29 January 2016 there was a further communication from the GEPF in
which it was stated that
agreement had been reached at the PSCBC in
respect of issues related to the alteration of the actuarial interest
factors. In April
2015 the PSA’s new attorneys wrote to the
GEPF calling upon it to reverse its decision, failing which there
would be an approach
to court. On 28 April 2016 the GEPF wrote in
response, stating that the last PSCBC meeting had 'condoned’
the application
of the altered actuarial interest factors and
expressing surprise that legal action was being threatened.
[50]
The PSA in its founding affidavit stated that as early as January
2016 it had instructed its
erstwhile attorneys to prepare an
application to court to compel the GEPF to consult with employee
organisations as prescribed
in the rules. When no progress was made
it terminated the attorneys’ mandate. In April 2016 it engaged
its present attorneys,
who then sent the letter threatening
litigation, referred to above. Subsequently the trade union,
Solidarity, served court papers
on the GEPF and on the PSA as an
interested party. The PSA considered it prudent to obtain the advice
of counsel on whether it
should embark on its own litigation. That
caused a further delay until the application that is the subject of
this appeal was launched
in July 2016.
[51]
It is true that the application could have been launched a few months
earlier. It is equally
true that the GEPF was intent on ratification,
rather than consultation, and from the correspondence referred to
above it is clear
that it placed little value on the consultative
process. This is an aspect to which I shall return when I deal with
the merits
and the submissions in relation thereto on behalf of the
GEPF. It must also be borne in mind that the GEPF was dead set on
pursuing
the PSCBC route and insisted that
ex post facto
consultation of the kind it envisaged would suffice.
[52]
The PSA was emphatic that the setting aside of the GEPF decision
would cause the GEPF no prejudice
as it was aware, from the time that
the PSA first challenged its decision that the decision would not be
accepted, but it pushed
ahead nonetheless and this has to be seen
against the many members who were potentially prejudiced by its
failure to consult. The
allegations by the GEPF regarding prejudice
are sparse. It did not give any indication of the precise number of
affected members
who left the GEPF since 1 April 2015, nor of the
costs, it said ‘would be a huge burden on the administration of
the GEPF’.
It was, however, in the invidious position, that it
had created for itself, of not knowing what a proper consultation
process,
involving a proper interrogation of actuarial assumptions
and valuation, would yield. It could also not know whether a present
valuation could meet a readjustment of actuarial interest factors for
a limited category of persons, who left the fund after 1 April
2015.
The actuarial factors were altered in favour of members once again in
2016. The category of persons affected is limited and
the duration as
well. The GEPF could not know whether there should be an approach to
government to meet a shortfall, if that eventuated,
or what
government’s response would be.
[53]
I pause to point out that during oral argument before us it was
accepted on behalf of the PSA
that the wide nature of the relief
sought in the notice of motion could not be sustained and that the
court could not order that
the prior actuarial factors be applied
pending consultation. In the event that we inclined in the PSA’s
favour it accepted
that all that could be ordered was that the
consultation that did not occur should take place.
[54]
In my view, on a conspectus of all the circumstances, including
potential prejudice and having
regard to the prospects of success on
the merits, which I will deal with in due course, this is a case in
which the delay should,
whether in terms of the PAJA or on the basis
of a legality review, be overlooked or excused.
[55]
I now turn to a consideration of the merits. It is clear that there
is a distinction between
situations in which a decision, by way of
statutory prescripts or binding rules, has to be taken ‘in
consultation’,
and where a decision has to be taken ‘after
consultation’.
The
former requires agreement and the latter requires that the decision
be taken in good faith,
after
consulting and giving serious consideration to the view of the party
that has to be consulted.
[13]
[56]
In
Government of the Republic of South Africa v Government of
KwaZulu and Another
1983 (1) SA 164
(A) this court said the
following at 199G-200A:
‘
The
State President’s power to amend an area which has been
declared by him to be a self governing territory is not
unlimited, for, since such an area is an area for which a legislative
assembly has been established in terms of the provisions of
s 1(1)
[of the National States Constitution Act 21 of 1971], an amendment
thereof may be made only
after
consultation by the Minister
with the Cabinet of the territory concerned… It is clear from
the aforegoing that the State
President’s powers ... are
subject to the limitation that they may be exercised only
after
there has been consultation by the Minister with the Cabinet…’
(Emphasis added).
[57]
The sequence in rule 14.4.2 is clear. Consultation should occur
before the decision is made and
the party to be consulted should be
afforded the opportunity to present a point of view that then must be
seriously considered.
It does not have to be accepted but it must be
considered. Put differently, consultation was a precondition for a
valid decision.
The court below erred in not recognising this.
[58]
Furthermore, rule 14.4.2 specifies the functionaries that must be
consulted, namely, employee
organisations. In the past the
identification of and consultation with the specified entities did
not seem to pose a problem. ‘Employee
organisations’, it
will be recalled, are defined as set out in para 12 above. Some of
the legislation referred to in that
definition has been superseded by
the LRA. During argument before us counsel for the parties were each
requested to submit a note
on the legislative changes that might have
a bearing on the case. The changes and the belated submissions on
behalf of the GEPF
in that regard are dealt with hereafter.
[59]
As set out in para 12 above, the rules recognised as an ‘employee
organisation’:
an admitted employee organisation referred to in
s 1 of the Public Service Labour Relations Act, 1994 (the PSLRA), an
admitted
employee organisation referred to in s 1 of the Education
Labour Relations Act 146 of 1993 (ELRA), and an employee organisation

or other ‘employee structure’ appointed in terms of the
Intelligence Services Act 38 of 1994
, the Defence Act 44 of 1957 and
the South African Police Services Act 68 of 1995 and which has for
negotiating purposes been accepted
by the employer. The PSLRA defined
an ‘admitted employee organisation’ as ‘any
employee organisation referred
to in s 26(5) and (6)’. Those
subsections provide, inter alia, for the continued recognition of an
organisation which had
previously been a member of the chamber of the
Public Services Bargaining Council at central level and for the
recognition subsequent
to the commencement of that Act to prove to
the ‘relevant’ chamber by way of verified membership that
they are ‘sufficiently’
representative of employees as
determined by the constitution of the central chamber. Section 10 of
the PSLRA deals with the admission
of an employee organisation to the
chambers of Council in order to participate in the proceedings
thereof. Council was defined
in the PSLRA as the Public Services
Bargaining Council.
[60]
The ELRA defined ‘admitted employer organisation or employee
organisation’ as follows:
‘such an organisation admitted
to the Council in terms of the provisions of section 10’. That
section provided that
the Education Labour Relations Council was the
entity to decide on the admission as an employee organisation.
Similarly to the
position in respect of the PSLRA, at least one of
the criteria was whether the organisation sought to be admitted was
sufficiently
representative.
[61]
The PSLRA and the ELRA were repealed by the LRA. However, the
provisions in the repealed statutes
that relate to employee
organisations were retained by the LRA. Section 212 of the LRA, read
with Schedule 7, appears to have preserved
the position of previously
recognised employee organisations as provided for in the ELRA and the
PSLRA. As stated earlier, identifying
and consulting those
organisations did not appear to have been a problem in the past.
Consultation in terms of rule 14.4.2 must
therefore mean consultation
before a decision is reached with all previously recognised employee
organisations. We know that in
the present matter consultation
beforehand was not conducted at all. There is no justification for
the submission on behalf of
the GEPF, namely, that the only employee
organisations that have to be consulted in terms of rule 14.4.2 are
those that meet the
PSCBC membership threshold. It was never raised
as an issue in the answering affidavit, nor was it raised in its
interactions with
the PSA and there appears no basis for it on a
reading of any of the provisions of the related legislation or the
rules of the
GEPF. In any event, the PSA, a representative union, was
not consulted and it was uncontested that NAPTOSA, a representative
trade
union, was not present at the last meeting of the PSCBC on
which the GEPF relied.
[62]
The GEPF was dismissive of whatever potentially useful input might be
received from employee
organisations. It persisted in argument before
us to elevate above any form of reproach the views of its actuaries.
It sought to
minimise the utility of the consultative process and
maximise the weight of an actuarial report. Actuaries are
statisticians who
make assumptions in relation to risks in the field
of pensions and in the insurance industry. They provide assistance in
the valuation
of pension funds. However, they, like other
professionals, are not impeccable. Their assumptions and valuations
are subject to
interrogation and challenge. They might be proved
right, or not. Consultation provides an opportunity for their views
to be put
to the test.
[63]
It must be borne in mind that the GEP law and the rules place primary
responsibility for the
administration and management of a fund on the
Board.
[14]
It is true that a
Board must appoint an actuary to be a ‘valuator’ of a
fund and is required to provide such a valuation
periodically and to
report thereon to the Board.
[15]
The report makes recommendations in relation to any deficit or
surplus in the fund. The actuary’s appointment is valid until

terminated by the Board. The actuarial report must comply with
s 16
of the
Pension Funds Act 24 of 1956
. It is the Board that ultimately
takes decisions after recommendations are made. It is the Board that
is required to consult the
employee organisations as defined in the
rules.
Rule 14.4.2
(b)
makes it clear that it is the Board which determines the A(X) factor
acting on the ‘advice’ of the actuary. There is
no room
for elevating the actuary above its station in the scheme of the GEP
law and the rules.
Section 29(5)
makes the rules of the GEPF binding
on the government, the GEPF, its members, pensioners, beneficiaries
or any other person who
has a claim against the GEPF.
[64]
This court is not called upon to decide the merits or demerits of the
actuarial report on which
the GEPF based its decision. The
consultation process is where engagement on those issues will occur.
Ultimately, when that process
is completed the GEPF will be called
upon to make a decision about appropriate actuarial interest factors.
It makes sense that
employee organisations should be consulted as
their membership’s pension benefits are impacted. It does not
behove the GEPF
to downplay the consultative process.
[65]
Can the failure by the GEPF to consult beforehand be sanitised by the
GEPF’s belated attempts
to invoke the PSCBC as a forum through
which, it was contended on behalf of the GEPF, the same result could
be achieved? The short
answer is no. The rule is clear about the
sequence of events: first consultation, followed by a decision.
Inverting the order in
these circumstances makes a nonsense of
consultation. The case law referred to above makes it clear that
there must be a good faith
consideration of what the consultation
yields. In the present case the invocation of the PSCBC by the GEPF
was an ill-advised attempt,
not so much as to cure the incurable
defect but rather to enforce the GEPF’s will. It was resorted
to because the consultation
with the various employee organisations
proved tedious and burdensome. That much is clear from the GEPF’s
own documents referred
to above.
[66]
The powers and functions of a bargaining council are set out in
s 28
of the LRA. They do not include dealing with a consultation process
by a Board of Trustees, as determined by the rules of any pension

fund. For present purposes I accept that pension matters could
conceivably be part of a dispute between labour and employers, where

for example it impacts on conditions of service and involves, say, a
position adopted by an employer that employees feel aggrieved
about.
I also accept that employers, employees and pension funds could agree
that the PSCBC be employed to reach agreement on matters
of mutual
concern.
[16]
That was not the
case here. The GEPF insisted on using that forum to ‘consult’
after a decision was reached. As was
pointed out earlier it was not a
consultation process but was aimed at imposing its decision that had
already been made.
Section 51
of the LRA, which deals with the
dispute resolution functions of a council concerning matters of
mutual interest, envisage labour
and employers in one or other guise
on either side of a dispute. In this case there was no substantive
dispute with the employer,
nor indeed with the GEPF, except in
relation to the process of consultation. In any event, at the first
meeting of the PSCBC, referred
to earlier in this judgment, the
employer did not even know what its role was. It sought clarification
on whether it was there
as an observer. As was evident from the
correspondence between the GEPF and the PSCBC, the former sought to
use the latter to overcome
what it considered to be a fragmented and
burdensome process and wanted to impose its will.
[67]
The court below erred in taking into account in favour of the GEPF
that labour representatives
served on the Board of the GEPF and that
this somehow excused the GEPF from consulting the employee
organisations specified in
rule 14.4.2.
The rule requires
consultation by the Board, qua Board, with employee organisations,
not with the PSCBC, when there is a specific
alteration of the
actuarial interest factors. The Board has no power to act outside of
the GEP law and the rules. It is obliged
in terms of the rules to
consult with employee organisations before settling on actuarial
interest factors. It did not do so. The
‘majoritarianism’
principle on which counsel for the GEPF relied for the proposition
that parties should be held to
PSCBC decisions, where those that meet
its threshold requirements, hold sway, is fallacious. The rules
prescribed a specific consultative
process before arriving at a
decision. It had to be followed. It was not followed and consequently
its decision is flawed and liable
to be set aside.
[68]
In light of the conclusions reached the following order is made:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the court below is set aside and substituted as follows:
‘
(a)
The delay in bringing the application for review is excused;
(b)
The decision of the first respondent to amend, with effect from 1
April 2015, the F(Z) and
A(X) factors utilised in the calculation of
actuarial interest under
Rule 14.4.2
of the Rules of the Government
Employees Pension Fund is reviewed and set aside;
(c)
The first respondent is ordered to consult with the first applicant,
the second respondent,
the fourth to nineteenth respondents and all
other employee organisations as defined in the Rules of the
Government Employees Pension
Fund concerning the calculation of the
actuarial interest referred to in (b) above, in respect of those
affected thereby;
(d)
The first respondent is to pay the costs of the application,
including the costs of two
counsel where so employed.’
_____________________
M
S Navsa
Judge
of Appeal
APPEARANCES
For
appellants:         C E
Watt-Pringle SC (with him M Sibanda)
Instructed
by:
Faskin Inc
Webbers, Bloemfontein
For
respondents:      V Ngalwana SC (with him S
Khumalo and F Karachi)
Instructed
by:
Mohalutsi Attorneys Inc, Pretoria
Bezuidenhouts Inc,
Bloemfontein
[1]
The
GEP law is a legislative instrument published under Proc 21 in
GG
17135 of 19-04-1996 and came into effect on 12 May 1996. The GEP law
was authorised by
section 237
of the interim Constitution of South
Africa, Act 200 of 1993, that provided for the rationalisation of
public administration.
It brought into the fold of the GEPF former
members of the liberation struggle and public service pension funds
in former Transkei,
Bophuthatswana, Venda and Ciskei (the so-called
‘TBVC states’)
[2]
The
Rules of the GEPF are published in Schedule 1 of the GEP law.
[3]
Public
Servants Association of South Africa and Others v Government
Employers Pension Fund and Others
[2019]
ZAGPPHC 199 paras 10-11. (Citations omitted.)
[4]
Premier,
Western Cape v President of the Republic of South Africa
1999
(3) SA 657 (CC).
[5]
Public
Servants Association
(above
fn 3) paras 12-19. (Citations omitted.)
[6]
Premier,
Western Cape
(a
bove
fn 4).
[7]
Public
Servants Association
(above
fn 3) paras 20-24. (Citations omitted.)
[8]
See
Gerson
v Mondi Pension Fund and Others
[2013] ZAGPPHC 160;
2013 (6) SA 162
(GJ) para 45 and the discussion
preceding it. See also
Moshoesoe
v Sentinel Retirement Fund and Others
GJ 13-09-2019 case no 2506/19; 2019 JDR 1972 (GJ) para 11
et
seq
;
Themba
and Another v Retail Provident Fund (Shoprite) and Others
WCC
06-05-2014 case no 9647/13 para 21; and the minority judgment in
Government
Employees Pension Fund and Another v Buitendag and Others
[2006] ZASCA 166
;
2007 (4) SA 2
(SCA) paras 24-30.
[9]
See
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) para 24.
[10]
See
s 7(1) read with s 6(1) of the PAJA.
[11]
Altech
Radio Holdings (Pty) Ltd and Others v City of Tshwane Metropolitan
Municipality
[2020]
ZASCA 122
para 18.
[12]
Khumalo
and Another v MEC for Education, Kwazulu-Natal
[2013]
ZACC 49
;
2014 (5) SA 579
(CC) para 44.
[13]
Unlawful
Occupiers, School Site v City of Johannesburg
[2005] ZASCA 7
;
2005 (4) SA 199
(SCA) para 13.
[14]
Sections
6 and 7 of the GEP law and rule 4 of the rules of the GEPF.
[15]
Rules
4.8 and 4.9 of the GEPF rules.
[16]
Section
31 of the GEP law provides for changes to benefit structures brought
about by agreement reached in the bargaining structures
for the
Public Service. This, as opposed to rule 14.4.2, which provides for
a specified consultation process when there is a
specific intended
alteration of actuarial factors.