Government Employees' Pension Fund v Strydom (271/2000) [2001] ZASCA 49; [2001] 3 All SA 263 (A) (27 March 2001)

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[2001] ZASCA 49
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Government Employees' Pension Fund v Strydom (271/2000) [2001] ZASCA 49; [2001] 3 All SA 263 (A); 2001 (3) SA 856 (SCA) (27 March 2001)

REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF
APPEAL
Reportable
Case No: 271/2000
In the matter between
:
GOVERNMENT
EMPLOYEES’ PENSION FUND
APPELLANT
HENDRIK
PETRUS STRYDOM
RESPONDENT
Coram:
Smalberger
ADCJ, Scott, Farlam, Navsa, JJA and Melunsky AJA
Date of hearing:
5 March
2001
Date of delivery:
SUMMARY
:
Magistrates - whether entitled unilaterally to resign - Government
Employees’ Pension Fund Rules, rule 14.3.1(b) and (d) -
Interpretation.
JUDGMENT
FARLAM, JA
FARLAM, JA
INTRODUCTION:
[1]
This is an appeal
against a judgment of Du Plessis J, sitting in the Transvaal
Provincial Division, ordering the appellant to pay
over the amount of
R168 832,96, with interest, on behalf of the respondent to the
Central Retirement Fund of Sanlam and to pay the
respondent’s
costs. The appeal is with the leave of the court
a quo.
[2]
The amount which the
appellant was ordered to pay on the respondent’s behalf to the
Central Retirement Annuity Fund (‘the Retirement
Fund’)
represents the difference between the amount the appellant paid to
the Retirement Fund, purportedly as the transfer benefit
to which he
was entitled in terms of rule 14.4.1(b) of the appellant’s rules
(the material provisions of which are quoted below),and
the amount to
which the court held he was in law entitled. One of the points of
difference between the parties related to the question
as to whether,
in calculating the amount to which the respondent was entitled, the
appellant was obliged to reduce the amount to
which the respondent
would otherwise have been entitled by the amount referred to in the
proviso to rule 14.3.3(b) of the rules.
The court
a quo
upheld
the respondent’s contention that the proviso had no application to
the calculation of the respondent’s entitlement under
the rules and
that his entitlement was to be calculated in terms of rule 14.3.3(a),
which did not provide for any deduction.
[3]
The question as to
whether the respondent’s transfer benefit was to be calculated
under rule 14.3.3(a) or (b) was originally the
only difference
between the parties in the court
a quo.
At a relatively late
stage the appellant raised a further contention to the effect that
the respondent had not been entitled to
a transfer benefit at all and
that he was accordingly obliged to pay back the amount that had been
paid over to the Retirement Fund.
This was raised as an alternative
to the appellant’s contention that a deduction had to be made from
the respondent’s transfer
benefit under rule 14.3.3(b) but, as the
court
a quo
correctly held, logically it had to be considered
first. Both defences raised by the appellant to the respondent’s
claim were
rejected by the court
a quo.
FACTS:
[4]
The appellant, the
Government Employees Pension Fund, was established by section 3 of
the Government Service Pension Act 57 of 1973
and continues to exist,
pursuant to the provisions of section 2 of the Government Employees
Pension Law, 1996 (Proclamation 21 of
1996).
[5]
The respondent, who
was born on 26 September 1942, was appointed a clerical assistant
Grade 2 in the Department of Justice in 1960
and a magistrate with
effect from 1 December 1969. He became a member of the appellant on
its establishment in 1973. From April
1996 he was appointed a senior
magistrate for the district of Germiston.
[6]
On 27 June 1997 the
respondent wrote a letter to the Chief Magistrate, Germiston, in
which he submitted his resignation as a magistrate
and elected to
have his actuarial interest in the pension fund paid out in terms of
rule 14.4.1(b). He also requested that the benefits
payable to him
be paid over to the Retirement Fund.
[7]
Although his notice
of resignation was submitted on 27 June 1997, the respondent’s last
working day in his office as senior magistrate,
and thus the date on
which his service terminated, was 30 September 1997, four days after
he attained the age of 55 years.
[8]
On 9 December 1997
the appellant transferred an amount of R1 545 173,84 to the
Retirement Fund in accordance with the respondent’s
request.
[9]
After the respondent
had written to the appellant on the topic, the appellant sent the
respondent an explanation of how the amount
paid on his behalf to the
Retirement Fund had been calculated. It conceded by implication that
the amount had been wrongly calculated
because it said that the
amount in question had to be recalculated to take into account two
factors: one which is no longer being
persisted in (‘the first
point’)and the other that there had been no deduction in the
formula used. It is clear that the deduction
referred to in the
letter is the deduction provided for in rule 14.3.3(b). The amount
which the appellant was ordered to pay to
the Retirement Fund on the
respondent’s behalf resulted from a recalculation of the amount to
which the respondent was entitled
made in the light of the fact that
the first point was no longer relied on by the appellant. The
appellant persisted, however, in
the contention that the deduction
provided for in rule 14.3.3(b) had to be made. At the hearing in the
court
a quo
both parties agreed that the amount paid to the
Retirement Fund was incorrectly calculated: the appellant contended
that the extra
amount to which the respondent was entitled flowing
from the abandonment of the first point (‘the extra amount’) was
to be off-set
against the deduction provided for in rule 14.3.3(b) ,
with the result that he owed it an amount of R137 783-93,
while the
respondent contended that he was entitled to the extra
amount without any deduction.
[10]
As I have said, the
respondent’s contention that his case was governed by rule
14.3.3(a) (with the result that no deduction had
to be made from his
benefits) and not by rule 14.3.3(b) was upheld by the court
a quo.
In the result the appellant was ordered to pay the extra amount
on his behalf to the retirement fund.
[11]
The appellant’s
later defence was based on the contention that the respondent’s
case was not covered by the rule because he had
not validly resigned
as a magistrate, a valid resignation being an essential prerequisite,
so it was contended, for a claim to a
transfer benefit under rule
14.4.1. The submission that the respondent had not validly resigned
as a magistrate was based on the
contention that for a magistrate
validly to vacate his office by resignation the approval of the
Minister of Justice is required
in terms of
section 13(5)
of the
Magistrates Act 90 of 1993
.
RELEVANT STATUTORY
PROVISIONS
[12]
Before the
contentions of the parties are considered it is appropriate to set
out the relevant statutory provisions.
[13]
As far as is
material at the relevant time
section 13
or the
Magistrates Act read
as follows:
‘ (1) A magistrate shall vacate his or her office on
attaining the age of 65 years ...
(2) A magistrate shall not be suspended or removed from office
except in
accordance with the provisions of subsections (1), (3), (4) and
(5).
(3) (a) The Commission may provisionally suspend a magistrate from
office
pending an investigation by the Commission into such magistrate’s
fitness to hold office.
(aA) The Minister may confirm such suspension if the Commission
recommends
that such magistrate be removed from office -
on the ground of misconduct;
on account of continued ill-health; or
on account of incapacity to carry out the duties of his or her
office efficiently.
(b) A magistrate so suspended from office shall receive, for the
duration of such suspension, no salary or such salary as may be
determined by the Minister on the recommendation of the Commission.
(c) A report in which the suspension in terms of paragraph (aA)
of a magistrate and the reason therefor are made known, shall be
tabled in Parliament by the Minister within 14 days of such
suspension,
if Parliament is then in session, or, if Parliament is
not then in session, within 14 days after the commencement of its
next ensuing
session.
(d) Parliament shall, within 30 days after the report referred to in
paragraph (c) has
been tabled in Parliament, or as soon thereafter as is reasonably
possible, pass a resolution as to whether or not the restoration
to
his or her office of a magistrate so suspended is recommended.
(e) After a resolution has been passed by Parliament as
contemplated in
paragraph(d), the Minister shall restore the magistrate concerned to
his or her office or remove him or her from office, as the case
may
be.’
(4) The Minister shall remove a magistrate from his or her office if
Parliament passes a resolution recommending such removal on
the
ground of misconduct of the magistrate or on account of his or her
continued ill-health or his or her incapacity to carry out
his or her
duties of office efficiently
(5) (a) The Minister may, at the request of a magistrate, allow such
magistrate to vacate his
or her office -
(i) on
account of continued ill-health; or
(iA) in order to effect a transfer and appointment as contemplated
in section 15(1) of the Public Service Act, 1994 (Proclamation
No. R.
103 of 1994); or
(ii) for any other reason which the Minister deems sufficient.
(b) Any request of a magistrate contemplated in
paragraph (a)(ii) shall be addressed to the Minister so that
he or
she receives it at least six calendar months before the date on
which the magistrate wishes so to vacate his or her office,
unless
the Minister approves a shorter period in a specific case.
(c) If a magistrate -
is allowed to vacate his or her office in terms of paragraph
(a)(i), he or she shall be entitled to such pension benefits as
he
or she would have been entitled to under the pensions Act
applicable to him or her if his or her services had been
terminated
on the ground of continued ill-health occasioned
without his or her being instrumental thereto; or
(ii) is allowed to vacate his or her office in terms of paragraph
(a) (ii), he or she shall be deemed-
(aa) to have been removed from office to promote efficiency for
reasons other than his or her own unfitness or incapacity; or
(bb) to have been retired in accordance with section 16 (4) of the
Public Service Act, 1994 (Proclamation No. 103 of 1994),
as the Minister may direct, and he or she shall be entitled to such
pension benefits as he or she would have been entitled to under
the
pensions Act applicable to him or her if he or she had been so
removed from office or had been so retired, according to the
direction
of the Minister.’
[14]
Rule 14 of the rules
of the appellant (as published in Government Gazette 17896 of 11
April 1997) deals, as the heading indicates,
with benefits payable to
members. Rule 14.1 deals with the benefits payable to members who
are discharged otherwise than on the
grounds of misconduct or fault
and who have less than 10 years pensionable service to their credit.
Such members receive a gratuity
based on the length of their
pensionable service.
As far as is material it reads
as follows:
‘14.1.1 If a member who has less than 10 years pensionable service
to his or her credit is discharged -
on account of ill-health not occasioned by his or her own fault;
owing to the abolition of his or her post or the reduction or the
reorganisation or the restructuring of the activities of
his or
her employer;
on the grounds that his or hér discharge will promote
efficiency or economy or otherwise be in the interest of his
or
her employer;
on account of his or her incapability to carry out his or her
duties efficiently excluding cases where such incapability
and
inefficiency result in such a person being discharged on grounds
of misconduct;
on the grounds that the President or the Premier of a province
appointed him or her in terms of the provisions of an act
to an
office and his or her pensionable service cannot be recognised as
pensionable service for the purposes of a superannuation,
pension, relief or provident fund or scheme established by or
under any law for the holders of such office;
as a result of injury or ill-health, not occasioned by his own
fault, arising out of and in the course of his employment;
or
in terms of section 17 (4) of the Public Service Act, 1994, or in
terms of section 17 (7) of the Post Office Service Act,
1974 (Act
No. 66 of
1974),
there shall be paid to him or her a gratuity which shall be
calculated at 15,5 per cent of such a member’s final salary,
multiplied
by the period of his or her pensionable service: Provided
that a member’s final salary shall for this purpose not be less
than
his or her pensionable emoluments as on the day immediately
before the commencement date.’
[15]
Rule 14.2 deals with
the benefits payable to members who are discharged otherwise than on
the grounds of their misconduct or fault
and who have at least 10
years pensionable service to their credit. As far as is material it
reads as follows:
‘14.2.1 If a member who has at least 10 years pensionable service
to his or her credit is discharged on account of a reason mentioned
in rule 14.1.1 there shall be paid to him or her -
a gratuity calculated at 6,72 percent of his or her final salary
multiplied by the period of his or her pensionable service;
an annuity calculated at one fifty-fifth of his or her final
salary multiplied by the period of his or her pensionable service;
and
a supplementary amount of R360 per year:
Provided that a member’s final salary shall for this purpose not be
less than his or her pensionable emoluments as on the day immediately
before the commencement date.’
[16]
Rule 14.3 deals with
the benefits payable to members who retire. As far as is material it
reads as follows:
‘14.3.1 If a member retires-
on or after his or her pension-retirement date;
(b) before his or her pension-retirement date in terms of the law
governing his or her terms and conditions of service;
(c) due to the lapse of his or her service contract;
(d) before his or her pension-retirement date, but not on a date
prior to the member attaining the age of 55 years: Provided that
such a member has the right to retire on that date in terms of the
provisions of any act which regulates his or her terms and conditions
of employment; or
whilst in the education service and the member has attained the age
of 50 years but not the age of 55 years: Provided that such
a member
has the right to retire on that date in terms of the provisions of
any act which regulates his or her terms and conditions
of
employment,
such member shall be entitled to the benefits indicated in rule
14.3.2 or 14.3.3, as the case may be.
14.3.2 Members with less than 10 years pensionable service-
a member who retires on account of a reason mentioned in rule 14.3.1
and who has less than 10 years pensionable service to his or
her
credit, shall receive a gratuity equal to his or her actuarial
interest.
14.3.3 Members with 10 years and more pensionable service-
a member who retires on account of a reason mentioned in rule
14.3.1 (a), (b) or (c) and who has at least 10 years pensionable
service to his or her credit, shall be paid the benefits referred
to in rule 14.2.1 ...;
a member who retires on account of a reason mentioned in rules
14.3.1 (d) or (e) and who has at least 10 years pensionable
service to his or her credit, shall be paid benefits referred to
in rule (a) above: Provided, that such benefits shall be
reduced
by one third of one percent for each complete month between the
member’s actual date of retirement and his or her
pension-retirement date.’
[17]
Rule 14.4 deals with
benefits payable to members who resign or are discharged because of
misconduct or ill-health occasioned by their
own doing. As far as is
material it reads as follows:
‘14.4.1 A member who
resigns from his or her employer’s service or is discharged from
his or her employer’s service because
of misconduct or ill-health
occasioned by his or her own doing or for a reason not specifically
mentioned in the rules and who is
not entitled to receive benefits
provided elsewhere in the rules, is entitled, on the written choice
of the member, to-
a gratuity calculated at 7,5% of his or her final salary
multiplied with the period of his or her pensionable service and
increased by ten per centage points for each full year of
pensionable service between 5 and 15 years; or
a transfer benefit to an approved retirement fund equal to the
aggregate of-
the amount referred to in paragraph (a), which amount shall
become an entitlement of the member on the condition that he
or
she deposits the amount into the approved retirement fund
immediately upon becoming entitled thereto; and
(ii) the difference between the member’s actuarial interest in the
Fund and the amount referred to in paragraph (a), if any.
14.4.2 The actuarial interest of a member who has-
...
attained the age of 55 years, shall be calculated in accordance
with the following formula: ...
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.
.....
A is the amount of the annuity the member would have received in
terms of the rules. ...
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.’
DID THE RESPONDENT VALIDLY
RESIGN?
[18]
Counsel for the
appellant submitted that rule 14.4 1(b) envisages a lawful or valid
resignation and that the
respondent was ‘precluded in law’, as counsel put it, from
unilaterally resigning as he purported to
do. He contended further
that upon a proper interpretation of
section 13
of the
Magistrates
Act it
is unlawful for a magistrate unilaterally to resign and it
follows, so he argued, that the respondent’s purported resignation
failed
to qualify him for the benefits prescribed by
rule 14.
[19]
He submitted that
the rights and obligations of magistrates are comprehensively dealt
with in the
Magistrates Act which
makes specific provision in
section
13
for the vacation of office by magistrates and comprehensively sets
out the circumstances under which office may be vacated. He drew
attention to the fact that the regulations promulgated under
section
16
of the
Magistrates Act are
silent about the termination or
vacation by a magistrate of his or her office. He pointed out that
unilateral vacation of office
by resignation is not provided for and
submitted that the Act only empowers vacation of office upon request
by a magistrate and with
the approval of the Minister of Justice.
Any vacation of office outside the terms of the Act is, in his
submission, unlawful and
does not entitle a magistrate to benefits as
upon a lawful termination or vacation of office.
[20]
I cannot discern in
the provisions of the
Magistrates Act an
intention on the part of the
legislature to provide an all-embracing code dealing with the ways in
which magistrates are to vacate
office. What is clear from a study
of the Act is that Parliament was concerned to grant to magistrates
an independence and freedom
from interference which they had not
previously enjoyed and to that extent at least to bring their
position and conditions of tenure
and service closer to that of
judges. Thus section 4 provides for the establishment of a
Magistrates Commission the objects of which
include the following:
‘(a) to ensure that the appointment, promotion, transfer or
discharge of, or disciplinary steps against, judicial officers in
the
lower courts take place without favour or prejudice ...;
(b) to ensure that no influencing or victimization of judicial
officers in the lower courts takes place’.
It was thus necessary to
include,
inter alia,
a provision which ensured that
magistrates could not be removed from office save for misconduct,
continued ill-health or incapacity
and which was the counterpart of
section 10(7) of the Supreme Court Act 59 of 1959 (which provides
that judges can only be removed
from office by the President upon an
address from Parliament praying for such removal on the ground of
misbehaviour or incapacity)
and section 13(4) was accordingly
enacted.
[21]
It is clear that
those responsible for drafting section 13(5) had regard to what may
be called the financial
consequences for magistrates who vacate office with the
Minister’s consent and had in
mind the various categories of benefits available for such
magistrates in terms of the
pension legislation applicable to them. Thus magistrates
allowed by the Minister to
vacate office on account of continued ill-health in terms of
section 13(5)(a)(i) are declared
by section 13(5)(c)(i) to be entitled to the pension
benefits they would have had if
their services had been terminated on the ground of
continued ill-health occasioned
without their being instrumental thereto. Similarly
magistrates allowed by the
Minister to vacate office ‘for any other reason which the
Minister deems sufficient’ in
terms of section 13(5)(a)(ii) are deemed by section
13(5)(c)(ii)(aa) and (bb) ‘to
have been removed from office to promote efficiency for
reasons other than [their] own
unfitness or incapacity; ... or to have been retired in
accordance with section 16(4) of
the Public Service Act, 1994' as the Minister may direct
and they are entitled to the
pension benefits they would have had if they had been so
removed from office or so
retired.
[22]
It follows that
magistrates allowed to vacate office under section 13(5)(a) who have
at least ten years pensionable service all fall
under rule 14.2.1 and
are accordingly entitled on vacation of office to receive gratuities,
annuities and supplementary amounts.
[23]
If a magistrate,
contrary to the contention advanced on behalf of the appellant, is
entitled to resign without the Minister’s approval
given in terms
of section 13(5), he or she will not be entitled to benefits under
rule 14.2.1, even if he or she has at least ten
years pensionable
service, and will fall under rule 14.4 with the result that he or she
will only be entitled to a gratuity calculated
under rule 14.4.1(a),
or a transfer benefit calculated under rule 14.4.1(b)equal to the
amount of the gratuity plus any difference
there may be between his
or her actuarial interest in the pension fund and the gratuity . He
or she will not be entitled, however,
to any annuity or supplementary
amount. Indeed the benefits to which he or she will be entitled will
be no more than they would
have been if he or she had been discharged
on the ground of misconduct or ill-health occasioned by his or her
own doing.
[24]
Is there anything,
in the absence of an express provision to that effect, indicating an
intention on the part of Parliament when
the Magistrates Act was
enacted to prevent magistrates from resigning without the Minister’s
approval in terms of section 13(5)?
Any such intention would have to
be a matter of necessary implication flowing from the provisions of
the Act .
[25]
As pointed out, the
grant of ministerial approval has substantial financial
advantages for a magistrate who
wishes to vacate office before his or her retirement date
and that there are substantial
financial disadvantages for a magistrate who leaves office
without such approval, assuming
that such a departure is legally possible. It is
furthermore clear that if a
magistrate were to leave office without ministerial approval
and (if the appellant’s
contention is correct) without being entitled to do so, he or she
would be liable to be discharged
for misconduct, viz
desertion, with precisely the same
financial benefits under rule
14.4 as would be the case if he or she were entitled to resign.
[26]
As already
mentioned, the drafters of the
Magistrates Act were
clearly alive to
the financial consequences in terms of the applicable pension
legislation where magistrates are allowed by the
Minister to vacate
office. It is reasonable to assume that they were also aware of the
considerations set out in paragraph [25]
above. They would have
accordingly been aware that there were in place substantial financial
disincentives for magistrates contemplating
resignation. When the
financial consequences for magistrates who so resign are borne in
mind it is not possible to say that the
provisions of
section 13(5)
are rendered meaningless, as contended on behalf of the appellant.
[27]
It has already been
pointed out that one of the main legislative purposes prompting the
enactment of the
Magistrates Act was
the enhancement of the
independence of the magistracy. One can readily see how that purpose
is to be achieved by providing that
magistrates are only to be
removed from office pursuant to a parliamentary resolution in terms
of
section 13(3)
and (4) or that they may be allowed to vacate office
with the Minister’s approval in terms of
section 13(5)
, in which
case their financial position in terms of the applicable pension
legislation is protected, as explained above.
[28]
Counsel for the
appellant did not contend that a magistrate did not have the right to
resign before 1993 when the
Magistrates Act was
enacted. Indeed
their argument on this part of the case was entirely based on the
contention that a magistrate’s inability to
resign his or her
office lawfully is something which arises from the proper
construction of
section 13.
[29]
A magistrate’s
decision to resign will, regard being had to the financial
implications to which I have already referred, not lightly
be taken.
It may well be induced by any one of a number of considerations.
When invited to do so, counsel for the appellant was
unable to
advance any reason in principle for reading such a restriction and
deprivation of pre-existing rights into
section 13.
Instead he
contended that what he called ‘the absence of a unilateral right to
resign an office held for the public benefit’
is the clear
quid
pro quo
for significant protections and security of tenure
granted to judicial officers in the lower courts. It is not clear why
Parliament
would have wished to exact a
quid pro quo
from
magistrates for granting them what they should have had in the
interests of the public all along,
viz
judicial independence
and freedom from interference from the Executive. If anything to
preclude the right to resign could be seen
as a fetter on judicial
independence.
[30]
Counsel for the
appellant sought to find further support for the contentions raised
on this part of the case on behalf of the appellant
in the English
common law rule that the resignation of the holder of an office was
only complete in law when it was accepted, a topic
which is
comprehensively discussed in the judgments given in the High Court of
Australia in
Marks v The Commonwealth
[1964] HCA 45
;
(1964)
111 CLR 549.
This rule applied primarily to common law offices, that is to say to
those constituted by the prerogative. But even where the office
was
constituted by statute, what was needed to make a resignation of such
office effective in law ‘ must still depend’, as Windeyer
J said
at 589, ‘upon the common law except in so far as the statute
displaces it’. It is not necessary to decide whether and,
if so,
to what extent this rule, which was derived from the royal
prerogative, is or was ever part of our law because once it is
conceded that a magistrate could, prior to 1993, resign his office -
and I have pointed out that the whole argument is premised on
such a
concession - it is in my view impossible to hold that by enacting
section 13
of the
Magistrates Act Parliament
must be taken to have
intended to revive (if it was part of our law previously) or
introduce a rule of the English common law (if
it was not part of our
law previously) to take away the right magistrates had previously to
resign their offices unilaterally. Clearer
language than we have
here would be required to effect that.
[31]
In the circumstances
I am of the view that a magistrate is entitled unilaterally to
resign his office. In the present case the
respondent gave the
Department over three months notice of his intention to resign, which
was clearly enough to enable it to make
arrangements for his
replacement. It is furthermore not suggested that the period of
notice in this case was not adequate. In the
circumstances it is not
necessary to decide what period of notice applies where a magistrate
is minded to resign his or her office
unilaterally. It follows that
what was in essence the main argument of the appellant must fail.
THE ALTERNATIVE ARGUMENT
[32]
I turn now to deal
with the alternative argument advanced by the appellant,
namely that the transfer benefit
paid over on the respondent’s behalf to the Retirement
Fund exceeded the amount to
which he was entitled because, even when the extra
amount is added, the effect of
the deduction referred to in the proviso to
rule 14.3.3(b)
is
respondent’s case was governed
by
rule 14.3.3(a)
, as the court
a quo
held, or by rule
14.3.3(b)
, as was submitted on
the appellant’s behalf. The material portions of rule
14.3.3
have been set out in
paragraph [16] above.
[33]
The rules draw a
distinction between resignation and retirement. The
respondent’s gratuity had to
be calculated under
rule 14.4.2(b)
dealing with resignation.
One of the components in the
formula set out therein was ‘the amount of the gratuity [he]
would have received in terms of
the rules had he retired’ on the date of termination of
service.
[34]
In order to
ascertain the amount of the gratuity referred to, one has to refer to
rule
14.3.1(b).
This is because one
has to ascertain what gratuity the respondent would have received
‘had he retired’ so that, even though
he resigned and did not
retire in terms of the law governing his terms and conditions of
service, to find out what his gratuity would
have been one has to
assume, for the purposes of the calculation, that he retired on the
date of termination of service. This would
have been before his
normal pension-retirement date.
[35]
As the respondent
must be taken to have retired in terms of
rule 14.3.1(b)
, the
provisions of
rule 14.3.3(a)
apply to his case, and not those of
rule 14.3.3(b).
It follows that
no deduction was called for and the respondent was entitled to have
the extra amount paid over to the Retirement
Fund nominated by the
him in terms of
rule 14.4.1.
[36]
The following
order is made:
The appeal is dismissed with
costs.
IG
FARLAM
JUDGE
OF APPEAL
.
CONCURRING
SMALBERGER
ADCJ
SCOTT
JA
NAVSA
JJA
MELUNSKY
AJA