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[2025] ZALMPPHC 12
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Seloana v Government Administration Agency and Others (7633/21) [2025] ZALMPPHC 12 (4 February 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7633/21
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE:
04/02/2025
SIGNATURE:
In
the matter between:
FLORANCE
MATSHELANA SELOANA
Applicant
And
THE
GOVERNMENT ADMINISTRATION
AGENCY
First
Respondent
GOVERNMENT
EMPLOYEE’S PENSION
FUND
Second
Respondent
MINISTER
OF FINANCE
Third
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Fourth
Respondent
Delivered:
This revised judgment is handed down electronically by circulation to
the parties through their legal representatives’
email
addresses. The date for the hand- down is deemed to be
04 February
2025.
JUDGMENT
Makoti
AJ
Introduction
[1]
The applicant condemns the judgment which it alleges to be riddled
with errors in
its findings and because its orders are unjustifiable.
Sitting across the same table are the respondents who jovially
exclaim,
‘
hail the judge and his judgment’
. This
is the normal dichotomous relationship that opposing parties have
with a judgment. For the victor, a judgment is the best
instrument in
hand while the opposite is true for the victim.
[2]
The applicant
Ms Florence Matshela Seloana
seeks leave to
appeal my judgment of 06 March 2024. She impugns the judgment in its
entirety, that is, the findings and orders
that I made in it and on
several grounds. In the application for leave to appeal the applicant
asked that the appeal be heard by
the full bench of the Limpopo
Division. However, this position changed during the hearing of the
application with the applicant
now asking that the appeal be sent to
the Supreme Court of Appeal (SCA).
[3]
As before, this application is opposed by only two of the four
respondents, being
the
Government Pensions Administration Agency
(GPAA) and the
Government Employees Pension Fund
(GEPF), the
first and second respondents. Like the applicant’s newly
adopted posture, the respondents have submitted that
that the appeal
and the issues involved in it, should I grant leave, are of such a
nature that they should be referred for adjudication
by the SCA.
[4]
I deal with the test for leave to appeal before answering whether the
application
should succeed or not.
Test
for leave to appeal
[5]
Leave to appeal is granted where the court is satisfied that the
application would
have reasonable prospects of success.
[1]
In S v Smith
[2]
the court had
the opportunity to consider what constitutes reasonable prospects of
success and it came to the conclusion that:
"What the test of
reasonable prospects of success postulates
is a dispassionate
decision, based on the facts and the law that a court of appeal could
reasonably arrive at a conclusion different
to that of the trial
court
. In order to succeed, therefore, the appellant must
convince this court on proper grounds that he has prospects of
success on appeal
and that those prospects are not remote but have a
realistic chance of succeeding. More is required to be established
than that
there is a mere possibility of success, that the case is
arguable on appeal or that the case cannot be categorised as
hopeless.
There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of success on appeal."
(Emphasis added)
[6]
Our courts have further held that given the wording of section
17(1)(a)(i) of the
Superior Courts Act,
[3]
leave to appeal may only be granted where a court is of the view that
the appeal would have reasonable prospects of success. Numerous
authorities have interpreted the section to mean that the phrase
‘
would
have reasonable prospects of success
’
serves to indicate some degree of certainty that the court of appeal
would reach a different conclusion prior to granting
an application
for leave to appeal.
[7]
In
MEC
for Health, Eastern Cape v Mkhitha and Another
[4]
the court held
inter
alia
that:
“
An applicant for
leave to appeal must convince the court on proper grounds that there
is a reasonable prospect or realistic chance
of success on appeal. A
mere possibility of success, an arguable case or one that is not
hopeless, is not enough. There must be
a sound, rational basis to
conclude that there is a reasonable prospect of success on appeal.”
[8]
Apart from the question of reasonable prospects of success, the court
may also grant
leave to appeal if the there exists a compelling
reason for an appeal to be heard, and that includes instances where
there are
conflicting judgments over the subject under
consideration.
[5]
Whether
leave should be granted to appeal the judgment
[9]
The applicant has raised several grounds for appeal. I classify them
into three categories.
First, it is said that the court ought to have
found the impugned pension rule unfairly discriminates against women
who are in
polygamous marriages, second, that there is no legitimate
purpose for the rule, and, lastly, that the respondents did not
discharge
the onus which rested on them to show the existence of a
legitimate purpose for the rule. The upshot of all of these is that I
ought to have ordered that the impugned rule should be stricken out.
[10]
For the respondents it was contended that the judgment appropriately
dealt with the issues and
that, importantly, its orders are
unassailable. They pointed out that the applicant has already
benefitted millions of Rand since
their spouse died, had no issue
with the 25% that she was benefitting. The argument went further that
the issue arose upon the
death of one of the surviving spouses, it
being the ostensible trigger of the demand for recalculation.
[12]
I am faced here with some kind of a
res nova
which carries
constitutional implications. Indeed, in my judgment I found the
existence of an indirect discrimination against women
in polygamous
marriages. This is significant. So too, is the fact that the case
calls for clarification of the law on how pension
benefits should be
shared among surviving spouses. Could I have been wrong to suggest
that the changes sought by the applicant
depend on a new trigger,
death of one of the surviving spouses to lead to a recalculation of
pension benefits. I am not convinced.
[13]
Despite that I am not convinced that the findings in my judgment are
assailable on appeal, the
fact that this matter deals with important
constitutional issues persuade me to grant leave to appeal in the
interest of justice.
I believe that a ruling at appeal level will
help solidify the law, whatever the outcome will be.
[14]
I am also persuade that given the nature of the legal questions
involved in this matter, the
appeal should be heard by the Supreme
Court of Appeal.
Order
[54]
I make the following order:
[a]
Leave to appeal is granted to the Supreme Court of Appeal.
[b]
Costs are in the appeal.
MOKGERWA
MAKOTI
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
DATE
OF HEARING
: 16
AUGUST 2024
DATE
OF JUDGMENT :
04 FEBRUARY 2025
APPEARANCES
COUNSEL
FOR APPLICANT
:
S
DLAMINI
SELOANE VINCENT
ATTORNEYS
c/o RAPHESU JL
ATTORNEYS
POLOKWANE
COUNSEL
FOR RESPONDENT :
S KHUMALO SC
M THULARE
NORTON ROSE FULBRIGHT
SA INC
c/o NILAND AND
PRETORIUS INC
POLOKWANE
[1]
S 17(1) of the Superior Courts Act No. 10 of 2013 (the Act).
[2]
2012 (1) SACR 567
(SCA) 570 at para [7].
[3]
Act 10 of 2013.
[4]
[2016] ZASCA 176
, para 17.
[5]
Section 17(1)(a)(ii) of the Act.