Municipal Employees Pension Fund and Another v Mongwaketse (969/2019) [2020] ZASCA 181; [2021] 1 All SA 772 (SCA) (23 December 2020)

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[2020] ZASCA 181
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Municipal Employees Pension Fund and Another v Mongwaketse (969/2019) [2020] ZASCA 181; [2021] 1 All SA 772 (SCA) (23 December 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 969/2019
In
the matter between:
MUNICIPAL
EMPLOYEES
PENSION
FUND                                                                                              FIRST

APPELLANT
AKANI
RETIREMENT FUND
ADMINISTRATORS
(PTY)
LTD                                                             SECOND

APPELLANT
and
DINEO
INNOLENTIA
MONGWAKETSE                                                           RESPONDENT
Neutral
citation:
Municipal Employees
Pension Fund v Mongwaketse
(969/2019)
[2020] ZASCA 181
(23 December 2020)
Coram:
PONNAN, WALLIS, MOLEMELA and DLODLO JJA and WEINER
AJA
Heard
:
20 November 2020
Delivered
:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme

Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 9.45 am on 23 December 2020
Summary:
Pension fund – acceptance as
member of person not qualified to be a member – acceptance
contrary to rules of fund –
ultra
vires
and void – membership
contract void for common mistake – estoppel and waiver not
available to fund – complaint
to Pension Funds Adjudicator in
terms of s 30A of the Pension Funds Act 28 of 1956 (the PFA) –
scope of Adjudicator's
jurisdiction – whether claim for
repayment of contributions a complaint as defined in s 1 of PFA
– whether a non member
can be a complainant as defined in
s 1 of PFA – whether jurisdiction to determine enrichment
claim for recovery of contributions
made by person not qualified to
be a member –
condictio indebiti
requirements
ORDER
On
appeal from:
Gauteng Division of High
Court, Johannesburg (Van der Linde J, sitting on appeal in terms
of
s 30P
of the
Pension Funds Act 28 of 1956
):
1 The appeal is dismissed with costs.
2 The attorneys for the appellant are limited in recovering the costs
of preparing and perusing the record from the appellant to
50 per
cent of those costs as taxed or agreed.
3 Counsel shall not be entitled to recover from his attorney any fee
in respect of the preparation of the practice note.
JUDGMENT
Wallis
JA (Molemela and Dlodlo JJA concurring)
[1]
If a pension fund admits someone as a
member who is not qualified in terms of its rules to be a member, and
receives contributions
from them, what obligation does the fund owe
that person when the error is discovered and the contributions cease?
That was the
sole issue in this case, notwithstanding considerable
efforts to make it appear more complicated. The appellant, the
Municipal
Employees’ Pension Fund (the MEPF), contended
that it was obliged to pay the respondent, Ms Mongwaketse, the amount
payable in terms of its rules to a member resigning their membership.
It is common cause that this has been paid. However, the Pension

Funds Adjudicator (the Adjudicator) ordered the MEPF to repay, with
interest, all the contributions made to the MEPF in respect
of Ms
Mongwaketse until such contributions ceased. On appeal to it in terms
of
s 30(P)
of the Pension Funds Act 24 of 1956 (the PFA), the Gauteng
Division of the High Court, Johannesburg, upheld the Adjudicator in a

judgment by Van der Linde J, whose death was a sad loss to the Bench.
This appeal is with his leave. Ms Mongwaketse has left the
field, no
doubt because the cost of proceeding was beyond her means, and we
have had the assistance as
amicus
curiae
, for which we are grateful, of
Mr L Pohl SC.
How
the problem arose
[2]
Ms Mongwaketse was appointed as the Chief
Audit Executive of
of the Ngaka Modiri Molema District
Municipality (the Municipality), with effect from 1 December 2011.
Her written contract, which
was governed by the provisions of s 57
of the Local Government: Municipal Systems Act 32 of 2000 (the
Systems Act), was signed
on 7 February 2012. Clause 3.2 provided that
her appointment would be deemed to have commenced on 1 February 2012
and would endure
for a fixed term of five years terminating on 31
January 2017. Thereafter her post would have to be re-advertised
nationally in
terms of s 54A(4)(
a
) of the Systems Act. A
provision in her contract directed at circumventing this requirement
can be ignored for present purposes,
as this court has held such
provisions to be ineffective.
[1]
[3]
In terms of clause 6.1 of her contract, Ms
Mongwaketse's remuneration
was inclusive of all benefits. She
would bear the entire cost of her membership of any retirement fund
from her salary. The contract
did not say specifically that she was
obliged to become a member of a retirement fund, but she was under
the impression that this
was compulsory. She accordingly asked about
joining a fund and was given, and completed, an application form for
membership of
the MEPF. The form was relatively simple and required
no details of her employment or the terms of her employment contract.
It
simply set out her details – name, identity number, income
tax number, residential address and contact telephone – and

read:
'I
hereby apply to be a member of Municipal Employees Pension Fund with
effect from 01 February 2012.'
[4]
Part B of the form contained particulars of
the employer and the name of its representative, who confirmed:
'That the EMPLOYER agrees to pay the
contributions in respect of the EMPLOYEE in terms of the Rules of the
MUNICIPAL EMPLOYEES PENSION FUND
Contribution:   Member
7.5%

Council
18% / 22%'
Ms
Mongwaketse underlined and initialled next to the 7.5% contribution
for a member and the 22% contribution by the Council. Her
purpose, as
she explained in the papers, was to use the five year period of her
employment to build up as large a pension pot as
possible.
[5]
The MEPF accepted Ms Mongwaketse as a
member and contributions amounting in total to 29.5% of her monthly
salary were deducted from
her salary and made on her behalf by the
Municipality. For convenience, these will be referred to collectively
as 'her contributions',
albeit that both the application form and the
rules of the MEPF distinguished between members' contributions and
employers' contributions.
Ms Mongwaketse realised that something was
amiss when she received a benefit statement from the MEPF as at 31
October 2014. This
reflected her monthly contributions as being some
R23 500. In total for the two years and eight months she had
contributed
around R600 000. However, the benefit statement
showed her member's contributions as about R152 000 and her
resignation
benefit as only some R250 000.
[6]
Ms Mongwaketse's enquiries revealed that
she was not qualified to be a member of the MEPF, because the
definition of member in the
rules excluded anyone who was employed
part-time or for a limited period. Over the next year she made a
number of attempts to resolve
this but without success. The problem
was addressed on the basis that she was not qualified to be a member
of the fund, but the
real issue was that Ms Mongwaketse was not
being credited with all the contributions made on her behalf. She was
not being
given credit for the 22% contribution, ostensibly from the
Municipality, but in truth being deducted from her monthly salary. As

a result, her goal of building the largest possible pension pot was
not being realised. Neither the MEPF, nor her employer were
of any
assistance. Eventually she resorted to stopping the contributions to
the MEPF. Further endeavours to resolve her concerns
led nowhere.
Matters dragged on until her employment with the Municipality came to
an end in February 2017 and she was given forms
to complete for
submission to the MEPF to claim what was due to her.
The
complaint to the adjudicator
[7]
On 8 March 2017, Ms Mongwaketse
submitted a complaint to the Adjudicator. In her letter she said:
‘
On my appointment, I was given a contract of
employment whereby it was expected that I also contribute to a
retirement fund. I was
given a Municipal Employee Pension Fund. The
membership form was completed and the total contributions were made
from my package
as agreed with the employer. . . .
As an employee I knew that my contract will be ending in
2017 therefore I structured my package in a way that I will be
contributing
more to the fund knowing very well that I am saving for
the future.’
The
letter went on over the following three pages to canvass her
discovery of the problem and the fruitless endeavours to resolve
it
to her satisfaction.
[8]
In
summation of her complaint Ms
Mongwaketse wrote as follows:
‘
According
to the rules of the pension fund I am excluded as member. Which means
to begin with I shouldn’t have been a member.
Since they
defined who is an employee according to them and they were explicit
that the word ‘employee’ and ‘member’
will be
used interchangeably, hence there is nowhere in the rules where they
talk about contract employees.
The pension fund legal advisor … has conceded to
the fact that indeed I am excluded therefore that means the
contributions
received by the fund were solely from me he will meet
with trustees and take it from there.
Since our meeting with the legal adviser it's now 11
months. I have not heard a thing from the fund.
Recommendations
That the adjudicator instructs the Municipal Employee
Pension Fund Administrators to pay me my total contributions (ie 7.5
% + 22
% as all this was contributed and structured by me) X 1,5 plus
22 % mora interest because I should have been paid by December 2015

the latest.’
[9]
The complaint is hardly a model of lucidity, but such
complaints rarely are, prepared as they are by lay persons in lay
language.
One must look not to the form, but the substance of the
complaint.
[2]
Ms Mongwaketse's complaint was that she was not qualified to be a
member of the MEPF, but was accepted as a member and made
contributions,
entirely out of her own pocket, the bulk of which were
being treated as lost to her.
She wanted her money
back with some return, whether by way of interest or otherwise. She
asked the Adjudicator to order that
the total contributions –
‘as all this was contributed and structured by me’ –
multiplied by 1.5, with
the addition of interest, should be paid to
her. This bore a resemblance to, but amounted to less than, a
resignation benefit calculated
under rule 37(1)(
b
).
[3]
Importantly it asked for the return of her total contributions,
because these had been made by her alone from her remuneration.
[10]
The MEPF responded to the complaint by
saying that both it and
Ms Mongwaketse were bound by the
rules of the fund; that she had received benefits under the rules and
after terminating her
membership was entitled to be paid the amount
due to a member who resigned, calculated in terms of rule 37(1). By
the time of the
response this had been paid to her. This was
consistent with its approach since the problem first arose. It said
that her contributions
had been allocated and used in accordance with
the rules and that benefits had been available to her. That much
emerged from earlier
correspondence.
[11]
In email exchanges with the Adjudicator's
office while the complaint was under consideration, Ms Mongwaketse
set out her position
in the following terms:
'There was never an employer's contribution. I want all
my money back.'
She
blamed her employer for her predicament saying:
'… I became a contributing
member through the employer who availed this fund and then retracted
from it after realising that
he erred.'
[12]
The common cause facts before the
Adjudicator were that:
(a) Ms Mongwaketse had been employed by the Municipality;
(b) She had applied for membership of the MEPF at the instance of the
Municipality;
(c) The MEPF accepted her application for membership of the fund;
(d) The MEPF accepted her contributions on the footing that 7.5% was
a member's contribution in terms of the rules and 22% was
the
contribution by her employer;
(e) Ms Mongwaketse was paying the entirety of the contributions by
way of deductions from her salary;
(f) Ms Mongwaketse was not qualified to be a member of the MEPF; and
(g) For that reason, she stopped making
contributions in October 2015.
[13]
When the complaint was lodged Ms
Mongwaketse had received nothing from the MEPF. She asked for payment
of her contributions multiplied
by 1.5, plus interest. After the MEPF
paid her an amount calculated in terms of rule 37(1)
(b
,
but using only the portion representing the member's contributions,
she continued to contend that she had not been paid what was
due to
her. This was the complaint that the Adjudicator had to determine. It
was not couched in technical legal parlance. Its substance
was that
the MEPF owed her money in the situation she found herself in and
that she was entitled to more than it had paid her.
The MEPF's
approach was that she had been paid everything she was entitled to,
because she had been paid a resignation benefit
under rule 37(1)
calculated on the basis of the member's portion of her contributions.
As I said in the opening sentence of this
judgment, the complaint
raised the question of what the MEPF owed Ms Mongwaketse as a result
of her being admitted as one of its
members and paying contributions,
when she was not qualified for membership.
The
determination
[14]
Given the confusion implicit in some of the
arguments on behalf of the MEPF it is necessary to set out the
relevant terms of the
determination in some detail. In para 1.1 it
read:
'This
complaint concerns the quantum of the withdrawal benefit paid to the
complainant by the first respondent [MEPF] following
her exit from
the third respondent [the Municipality].
It went
on to say in para 2.1 that Ms Mongwaketse:
'… acquired membership of the [MEPF] by virtue of
her employment with the [Municipality].'
Under
the heading 'COMPLAINT' it said:
'At the time of lodging the complaint, the complainant
had not received her withdrawal benefit, however, she has since
confirmed
receipt albeit that she is dissatisfied with the quantum
thereof.'
The
relief claimed was described in the following terms:
'… [T]he complainant has now received her
withdrawal benefit, however, she is dissatisfied with the quantum
thereof as she
was the sole contributor in the [MEPF] and the
[Municipality] did not pay any contributions. She is of the view that
there is an
outstanding benefit from the [MEPF] and requests this
Tribunal to compel the [MEPF] to pay all her contributions as she was
not
supposed to have been joined as its member in terms of its
rules.'
The
response of the MEPF was recorded as being that:
'The said benefit was paid in
accordance with Rule 37(1) and no further benefit is due to the
complainant.'
[15]
In setting out the determination and the
reasons therefor the Adjudicator again described the issue as being:
'… whether or not the complainant was paid her
withdrawal benefits in terms of the rules of the fund.'
The
rules of the MEPF were reviewed and it was pointed out that Ms
Mongwaketse did not meet the eligibility criteria for membership,

although she was accepted as a member. Her contract of employment was
considered and the fact that she was remunerated on a cost
to company
basis, leading to the conclusion that 100 per cent of the
contributions made to the MEPF were made by her and none could
be
attributed to the Municipality.
[16]
The reasoning of the Adjudicator is contained in paragraph 5.9
of the award the relevant portion of which reads:
‘
Based on the evidence placed before this
Tribunal, it is found that the complainant’s contract of
employment did not make
it compulsory for her to join the [MEPF] as a
member from the date of commencement of her employment. The
complainant was further
not eligible for membership of the [MEPF] as
she was employed on contract, ie for a limited period. The [MEPF]
indicated that the
complainant was paid a withdrawal benefit in terms
of its rules however, due to the complainant not meeting the
membership criteria
of the [MEPF] she cannot be considered a member
and therefore is not bound by the rules of the [MEPF]. Therefore, the
[MEPF] should
refund the complainant the total amount of all the
contributions made by her and those that it deemed as made by the
[Municipality]
as it was not entitled to receive same. In this
regard, this Tribunal notes that the total amount of contributions
unlawfully deducted
from the complainant’s salary and paid over
to the [MEPF] is R856 489.94. However, to guard against the
undue enrichment
of the complainant, the [MEPF] must also consider
the amount that has already been paid to her.’
The
subsequent proceedings
[17]
The MEPF and its administrator, the second
appellant, Akani Retirement Fund Administrators (Pty) Ltd (Akani),
appealed against the
determination in terms of the provisions of
s 30P of the PFA and simultaneously instituted review
proceedings. It challenged
the Adjudicator's determination on the
grounds that it had been made without jurisdiction, relying on
s 6(2)
(a)
(i)
of PAJA; was infected by an error of law in acting on the basis that
she had jurisdiction, relying on ss 6(2)
(d)
and 6(2)
(b)
of
PAJA; and was not rationally connected to the purpose of the
empowering provision or the information before the adjudicator,

relying on ss 6(2)
(f)
(ii),
6(2)
(h)
and
6(2)
(f)
(ii)(cc)
of PAJA.
[18]
All of this boiled down to saying the same
thing in different ways, namely, that the Adjudicator acted without
jurisdiction and
beyond her powers. This was based on the proposition
that she made the award pursuant to an enrichment claim that she had
no power
to consider, and that in any event the award was irrational
and unjustified on the material before the Adjudicator. A
supplementary
affidavit filed after delivery of the record added
complaints of a failure of
audi alteram
partem
because the MEPF and Akani had
not been afforded an opportunity to deal with a complaint on that
basis. All of this generated an
urgent application for interim relief
and over 300 pages of paper in the record before us (including a
complete set of the MEPF's
rules running to 142 pages).
[19]
The response to this indigestible mass of
paper was equally extravagant. Apart from opposing the relief sought,
it included a counter-application
to review the MEPF's decision to
afford Ms Mongwaketse membership of the fund, joined with an order
that all contributions made
by her be refunded with interest. The
replying affidavits consumed a further 160 pages of the record
without adding anything of
significance other than Ms Mongwaketse's
contract of employment with the Municipality. The cherry on the top
of this, in the record
before us, was the inclusion of another
complete set of the rules of the MEPF.
[20]
The argument before the high court appears
from the judgment to have focussed largely on the issues of
jurisdiction and enrichment.
The court held that the complaints of
lack of jurisdiction were unfounded; that the determination by the
Adjudicator was justified
on the grounds of enrichment; and that both
the appeal under s 30P of the PFA and the review should be
dismissed. The counter-review
was likewise dismissed. The MEPF and
Akani were ordered to pay the costs of both the review application,
which included the appeal,
and the application in reconvention.
Chapter
VA of the PFA and the review
[21]
This chapter of the PFA deals with the role
and functions of the Adjudicator. Its aim was to give members of
pension funds and others
a means of complaining about the
administration of the funds and their treatment by the funds, which
was inexpensive, informal
and expeditious.
[4]
Under s 30A provision is made for a complainant to lodge a
complaint with their fund and, if not satisfied with the reply,
which
has to be furnished within 30 days, to refer the complaint to the
Adjudicator. The definitions of complainant and complaint
are in wide
terms as will be seen when I come to deal with them in greater
detail. Legal representation is excluded
[5]
and the determination follows from the Adjudicator's investigation of
the complaint. That proceeds in whatever manner the Adjudicator

decides, including an inquisitorial manner.
[6]
The stress is on informality, but the right to be heard is expressly
dealt with in s 30F, which requires the Adjudicator to
afford
the fund against which the complaint is made the opportunity to
comment on the allegations. The determination and the reasons

therefor must be embodied in a statement signed by the
Adjudicator.
[7]
It is not to be expected that this will contain the detailed legal
reasoning that is the hallmark of a judgment, provided it indicates

simply and clearly the basis upon which the Adjudicator arrived at
the determination.
[22]
Wide though the definitions of complaint
and complainant are the Adjudicator's function is to perform the
functions that would otherwise
have to be performed by a court of law
and in determining a complaint she makes the order that a court of
law would make.
[8]
The Adjudicator has no general equitable jurisdiction.
[9]
That is why s 30H(2) of the PFA excludes the jurisdiction of the
Adjudicator to investigate a complaint once the subject matter

of the dispute is already before the civil courts.
[10]
It is also why the appeal as of right against a determination to
which any dissatisfied party is entitled, is a complete re-hearing
of
the matter including, if the parties so choose, further evidence or
information. It is not confined to the record before the
Adjudicator,
but, as decided
in
Meyer
v Iscor
,
[11]
is a hearing
de novo
.
Subsequent to that decision, this has been
made subject to s 30P(3) of the PFA, which provides that the
court may decide that
sufficient evidence has been adduced on which a
decision can be arrived at, and order that no further evidence may be
received.
[23]
Chapter VA of the PFA is designed to
provide a complete and independent dispute resolution system, in
which the entire dispute
is capable of being aired afresh before a
court if a party is dissatisfied with the determination by the
Adjudicator. The value
of such independent dispute resolution systems
has been repeatedly stressed by our courts in the context of the
dispute resolution
system under the Labour Relations Act 66 of 1995
(the LRA). The desirability of their being invoked by parties engaged
in labour
disputes has also been stressed.
[12]
In the area of labour law this does not mean that contractual and
administrative law claims may not be pursued in the high court.
[13]
Similarly, in the area of pensions, there is no bar to the claim
being pursued before a court, either at first instance or in terms
of
an appeal under s 30P. Given the manifest purpose of creating
this system of dispute resolution, it should not be construed
in a
way that excludes its use on the basis of highly technical semantic
arguments.
[24]
It is apparent that the review instituted
by the MEPF and Akani was pointless. Every issue that they sought to
raise was open to
them in the appeal under s 30P. If the
Adjudicator lacked jurisdiction because there was no 'complaint'
before her, that was
a sufficient and proper basis upon which to set
aside the determination under s 30(P).
[14]
The evidence they wished to lead, insofar as it was admissible, could
be placed before the court. Their right to have the dispute
resolved
in a court of law was fully protected. No purpose could usefully be
served by the resort to judicial review.
[25]
It is difficult to envisage when, if at
all, challenges to determinations by the Adjudicator will be subject
to judicial review
or whether PAJA can have any application.
[15]
One of the constraints on the institution of review proceedings under
PAJA is that the applicant must ordinarily exhaust domestic
remedies
before pursuing a review.
[16]
The running of time is dependent on the date when the domestic
remedies have been exhausted.
[17]
Here the dissatisfied party has something better than a domestic
remedy, namely an unfettered right to approach the court for a

complete hearing
de novo
.
Reconciling that right of appeal with judicial review under PAJA is
difficult. Section 30P(1) provides that an appeal must
be
brought within six weeks of the date of the determination. Under PAJA
an applicant has 180 days from the date of the decision.
How does one
reconcile the two? Can a dissatisfied fund institute a review if it
neglects to appeal timeously? Surely not. I am
not prepared to go so
far as to say that there are no circumstances in which the
Adjudicator's decision would be subject to judicial
review. It
suffices to say that this was not such a case. The review application
was properly dismissed.
The
Adjudicator's jurisdiction
[26]
The MEPF did not object to the
Adjudicator's jurisdiction when Ms Mongwaketse lodged her
complaint. It responded to the complaint
and said that it had paid
her everything to which she was entitled. Its objection in these
proceedings is that the complaint was
determined on the basis that
Ms Mongwaketse was not entitled to be a member of the MEPF and
this led to the consequential
finding that all her contributions.
should be refunded The MEPF contended that the Adjudicator decided
the complaint as if it were
one based on enrichment, something it
contended was beyond her jurisdiction. It argued that in terms of the
definitions a person
who is not a member of a fund cannot be a
complainant in respect of anything done by the fund. The submission
was summarised in
the following way:
'The Adjudicator is simply not
statutorily empowered to decide civil law claims between a pension
fund and strangers to a pension
fund.'
[27]
Under s 1(1) of the PFA a complainant is
defined so as to include any person who is, or claims to be a member
or former member of
a fund, a spouse or former spouse of a member or
former member, a beneficiary or former beneficiary of a fund, an
employer who
participates in a fund, a board of a fund or a member of
the board, or any person who has an interest in a complaint. The
latter
is clearly a catch-all provision inserted in order to ensure
that anyone who has a complaint as defined is entitled to pursue it

before the Adjudicator. The net was accordingly cast wide.
[28]
The definition of complaint is equally wide
and likewise should be generously interpreted.
[18]
It means:
'A complaint of a complainant relating to the
administration of a fund, the investment of its funds or the
interpretation and application
of its rules, and alleging –
(a)
that a decision of
a fund or any person purportedly taken in terms of the rules was in
excess of the powers of that fund or person,
or an improper exercise
of its powers;
(b)
that the
complainant has sustained or may sustain prejudice in consequence of
the maladministration of the fund by the fund or any
person, whether
by act or omission;
(c)
that a dispute of
fact or law has arisen in relation to a fund between the fund or any
person and the complainant; or
(d)
that an employer
who participates in a fund has not fulfilled its duties in terms of
the rules of the fund;
but shall not include a complaint
which does not relate to a specific complainant.
[29]
There was no dispute between Ms Mongwaketse
and the MRPF that it was obliged to pay her some amount derived from
her contributions
to the fund between February 2012 and October 2015.
There was never a suggestion that she was not entitled to anything.
The only
issue was how much. Not surprisingly the legal basis for the
claim was not spelled out in the complaint. A complaint is not
required
to have the degree of specificity demanded of pleadings. It
is a complaint not a cause of action.
[19]
The MRPF's attitude throughout has been that it had to pay an amount
calculated in terms of rule 37(1) and this is what it has
done. In
her complaint Ms Mongwaketse asked that she be paid an amount broadly
in terms of that rule, but calculated using the
whole amount of her
contributions, irrespective of how they had been characterised. She
made it clear that at the very least she
wanted her contributions
back. The Adjudicator's award fell somewhere between these two poles.
In ordering payment of the full
amount of the contributions, plus
interest, her approach was that neither party was correct in saying
that the calculation should
be performed in accordance with the
rules, but that Ms Mongwaketse was entitled to a refund of the
contributions.
[30]
Since preparing this judgment I have had
the privilege of reading the judgment prepared by Ponnan JA. He
concludes in para 80 that
it is difficult to see how the allegation
raised by Ms Mongwaketse fell within any of the sub-paragraphs of the
definition of a
complaint. I respectfully disagree. Her allegation
was that she had been admitted as member of the MEPF when she was not
qualified
under its rules to be a member and it was not entitled to
admit her as such. Pursuant to that decision she had made and the
MEPF
accepted her contributions. That seems to me to involve
decisions taken in excess of the fund's powers and an improper
exercise
of those powers. Given that the fund is obliged in law to
comply with its rules in my view it was maladministration for it not
to do so. This accords with the broad approach to the interpretation
of the complaint in
Mungal
,
Ms Mongwaketse's claim raised disputes of law between her and
the MEPF. In my view sub-paragraphs
(a)
,
(b)
and
(c)
of the
definition were satisfied.
[31]
There is a fundamental problem with the
contention that by determining the complaint in the way she did the
Adjudicator deprived
herself of a jurisdiction that she undoubtedly
enjoyed and was not in dispute. Her jurisdiction came into existence
when the complaint
was lodged and was accepted by both parties. From
the outset this was accepted by the MEPF and no challenge was raised
to the Adjudicator's
jurisdiction. I do not think she can be
criticised for exercising a jurisdiction that was not in any way
disputed and determining
the complaint on the basis of the common
cause facts that were placed before her.
[32]
The basis for the jurisdictional argument
was that the Adjudicator's decision was based on Ms Mongwaketse not
being a member of
the MRPF, because she was not qualified to be a
member. It was submitted that she was therefore not a complainant as
defined in
s 1 of the PFA. The submission was that the
requirement that the complaint be 'of a complainant' had to be
satisfied first,
before looking at the subject matter of the
complaint in the light of the definition. If the complaint was not by
a complainant
as defined, it was not a complaint, however much it
might appear to be the very kind of dispute that the provisions of
Chapter
VA were designed to deal with.
[33]
This argument was undesirably technical and
attached excessive weight to the inclusion of the words 'of a
complainant' in the definition
of a complaint. Without those words
there could have been no doubt that Ms Mongwaketse had a complaint in
terms of the definition.
In my view they were not inserted in the
definition of 'complaint' in order to restrict its scope, but to
serve the lesser purpose
of the need to refer back to the definition
of complainant to identify who could invoke the jurisdiction of the
adjudicator. The
definition of 'complaint' is clearly the more
important. That is apparent from the inclusion in the definition of
'complainant'
of sub-para
(d)
,
which includes 'any person who has an interest in a complaint'. If
the interpretation of these definitions is not approached in
the
manner I have suggested, they become endlessly circular, in that a
complainant will be someone having an interest in a complaint,
but a
complaint is only a complaint if it is the complaint 'of a
complainant'.
[34]
The MEPF's entire case was that Ms
Mongwaketse was a former member of the MEPF. Leaving legal
technicalities aside, as a matter
of fact, that was so. She had
applied for membership of the MEPF and been accepted as such. For
nearly three years contributions
were made and accepted. The argument
that she did not qualify as a member or former member of the fund for
the purpose of making
a complaint seems slightly perverse. The fact
that she was not qualified to be a member did not alter the fact that
she had applied
to become one and been accepted. On any basis that
sufficed to bring her within the category of someone claiming to be a
former
member of the fund. The fact that she should not have been
accepted as a member cannot alter that. In any event, on my analysis

of a complaint she was a person having an interest in that complaint.
[35]
The fundamental flaw in the submission on
behalf of the MEPF was the proposition that Ms Mongwaketse was a
stranger to the fund
bringing a civil law claim against it. She was
clearly not a stranger to the fund, because her complaint arose from
the fact that
she had been accepted as a member of the MEPF and it
was seeking to enforce its rules against her. All the claims against
a fund
falling within the definition of a complaint are civil law
claims. That follows from the point already made that the
Adjudicator's
function is to resolve claims that would otherwise have
to be resolved by the civil courts. I can see no reason why those
should
be confined to contractual claims, although most of them will
be. Others may not. To give an example, a claim that a fund had
improperly
invested funds in shares of an unlisted company controlled
by its administrator could be described as an improper exercise of
its
powers in terms of sub-para
(a)
of
the definition of a complaint. The lease of office space from the
spouse of a trustee at an outrageously excessive rental, could
amount
to maladministration by both the trustee and their spouse. Those
claims would not be contractual, but would be civil claims
capable of
being pursued before the Adjudicator.
[36]
If contributions were made to a fund in
excess of those required from a member under the rules, the excess
contributions could be
recovered. The claim for recovery would be
under the
condictio indebiti
or
the
condictio sine causa.
It
would be an enrichment claim, but it would be a claim that could be
pursued by lodging a complaint with the adjudicator. Once
it is
recognised that the validity of Ms Mongwaketse's membership of the
MEPF was not a pre-requisite to her entitlement to pursue
a
complaint, there was no reason in law, if the proper characterisation
of her claim was enrichment, why the Adjudicator could
not determine
it.
[37]
There is merit in the point made by the
judge that, if Ms Mongwaketse was claiming to be a member of the MEPF
and it disputed her
membership, the Adjudicator would undoubtedly
have had jurisdiction. Precisely that situation might have arisen if
she had unfortunately
died whilst employed by the Municipality and
her estate, spouse and dependants had made claims against the fund.
It would have
been open to the MEPF to contend that she was in truth
not a member and that therefore there was no obligation to provide
those
benefits. As we will see, that contention would have been
entirely justified and correct in law. There is no reason why the
converse
should not also be true.
[38]
For all those reasons, even if the
Adjudicator dealt with the claim on the basis that the MEPF had been
enriched by Ms Mongwaketse's
contributions, that was something that
fell within the terms of the complaint and was within her
jurisdiction.
[20]
Whether she was correct is an entirely different matter.
Ms
Mongwaketse's membership of the MEPF
[39]
The relationship between a pension fund and
its members is governed by the rules of the fund, relevant
legislation and the common
law.
[21]
The relationship is constituted by a contract, usually tripartite,
between the fund, the member and the member's employer.
[22]
The fund is created by registration under s 4 of the PFA and its
rules are binding upon the fund, its members, shareholders
and
officers in terms of s 13 of the PFA.
[40]
The crucial question is whether Ms
Mongwaketse's application for membership of the MEPF and its
acceptance validly constituted her
as a member of the MEPF. If so,
she was bound by the rules, including those rules that dealt with the
apportionment of contributions
between member and employer, and rule
37(1) governing the resignation benefit payable to a member who
resigns. The MEPF contended
that this was the situation. It said that
had Ms Mongwaketse died during the course of her employment by the
Municipality her estate
would have been entitled to claim the funeral
benefit under the rules and her spouse and children would have been
entitled to claim
the death benefits in terms of the rules.
[41]
My initial inclination was to think that
this was correct. Further consideration leads me to conclude that it
was not and that the
Adjudicator and Van der Linde J were correct in
holding that she was not a member. Neither of them gave any reasons
for this conclusion,
beyond making the point that in terms of the
rules she was not qualified to be a member. As I initially thought
otherwise it is
best that I explain more fully. There are I think two
routes both leading to this conclusion.
[42]
The first, and simpler route, is that the
MEPF was bound by its rules in terms of s 13 of the PFA. The
rules of a fund have
been aptly described as its constitution.
[23]
Rule 2(2) provides that the MEPF is a body corporate and the terms of
its rules show that it is a 'pension fund organisation' as
defined in
para
(a)
of
the definition of that expression in s 1 of the PFA. In terms of
s 5(1)
(a)
of
the PFA it became a body corporate upon registration as a pension
fund. When the MEPF was established, s 11
(d)
of the PFA required its rules to
provide for admission to membership and the circumstances under which
membership was to cease.
The rules provided for this in rule 24 which
dealt with membership of 'EMPLOYEES'. In turn that expression was
defined in rule 1
as being a person employed by a local
authority who had attained the age of 16 years but not fifty years
excluding,
inter alia
,
a person who was employed part-time or for a limited period. Ms
Mongwaketse was employed for a limited period of five years so
she
did not qualify as an employee under the rules and accordingly did
not qualify to be admitted as a member of the MEPF.
[43]
Precisely this situation arose in
Abrahamse
v Connock's Pension Fund
and Trollip J
dealt with it as follows:
[24]
'
The
position is quite clear. As the defendant is a corporate body its
legal capacity to enter into a particular contract must be
sought for
exclusively within the expressed and implied provisions of its
constitution and if it is not found there then the defendant
has
exceeded its powers in entering into the contract and it is null
and void. That is because according to the [PFA], the

constitution not only defines defendant's legal capacity but also
confines it to what is expressly or impliedly contained therein.
That
is the effect of the sections of the Act quoted above. In other words
the doctrine of
ultra
vires
applies
to defendant like any other corporation (see Street,
Doctrine
of Ultra Vires
…).
Street's
summary
of the position at p. 4 is so lucid and apposite that it is worth
quoting in full:
"A
corporation is commonly styled a "legal person", but the
appellation "person" is applicable to it only
by analogy;
and the analogy fails when it is thus clearly stated that this legal
person is wanting in much that belongs to a natural
person - that its
course of existence is marked out from its birth; that it has been
called into being for certain special purposes;
that it has all the
powers and capacities, and only those, which are expressly given it,
or are absolutely requisite for the due
carrying out of those
purposes; and that all the obligations it affects to assume which do
not arise from or out of the pursuit
of such purposes, are null and
void."
Now according to para. 9 (2) of
its constitution defendant had no legal power or capacity to accept
plaintiff as a member after
the 1st October, 1950. The contract for
membership that it purported to conclude with him after that date was
therefore
ultra
vires
and
null and void.'
[44]
This judgment has been cited with approval
on numerous occasions including by this court in regard to the
workings of a pension
fund.
[25]
Possibly the Adjudicator and Van der Linde J had it in mind when they
concluded that Ms Mongwaketse had not become a member of
the MEPF. It
would have been of assistance had it been specifically cited to us by
counsel, but inexplicably it was not. In my
view it leads inexorably
to the conclusion that Ms Mongwaketse was not a member of the MEPF.
[45]
The second route to the same conclusion is
via the law of contract. There is no suggestion in this case that
either Ms Mongwaketse
or the MEPF were anything other than bona fide
in dealing with her application for membership. Both believed that
she was entitled
to become a member of the MEPF. Because she was
unaware of the constraints on her membership imposed under the rules,
and the MEPF
was unaware of the terms of her contract of employment,
they were both mistaken. As a result, there was a common mistake in
relation
to her being qualified to become a member.
[46]
I
n
African
Realty Trust
[26]
the parties had concluded an agreement for the sale of land on the
basis that it was to be irrigated from a dam to be constructed
by a
particular method at government expense. After the conclusion of the
sale the method of construction was altered and became
far more
expensive, with the result that the water rates payable on the
property would more than double. The question was whether
the change
conflicted with an express term of the contract in regard to the
construction of the dam, but in dealing with the mistake
common to
both parties, De Villiers JA said:
'But, as a Court, we are after all
not concerned with the motives which actuated the parties in entering
into the contract,
except
in so far as they were expressly made part and parcel of the contract
or are part of the contract by clear implication
.'(My
emphasis.)
[47]
In
Wilson
Bayley Homes
[27]
it was said that:
'…
a common
mistake relating to the existence of a particular state of affairs
will not render the contract void unless it can be said
that the
parties expressly or tacitly agreed that the validity of the contract
was conditional upon the existence of that state
of affairs'.
That
approach was approved in this court in
Van
Reenen Steel.
[28]
Where parties enter into a contract on the basis of a common mistaken
belief in regard to some past or present existing fact and
agree that
the contract depends on the existence of that fact, the contract is
void if they are mistaken.
[29]
[48]
Harms JA pointed out
in
Van Reenen Steel
,
[30]
that circumstances in which the parties
would not have entered into the contract if the common assumption
proved false are likely
to be rare and unlikely. The reason is that
while they may share a mistaken belief about a past or present fact,
it is only likely
to be material to the existence of the contract for
one of them. However, where both parties are mistaken about the
lawfulness
of their agreement and neither would have entered into it
had they known the true facts, the agreement will be void for common
mistake.
[31]
That is precisely the situation in the present case, because the
membership contract was expressly subject to the qualifications
for
membership embodied in the rules. On that ground the contract between
Ms Mongwaketse and the MRPF under which she was accepted
as a member
of the fund was void.
[49]
For those reasons I conclude that the
Adjudicator and the high court were correct in their approach that
the complaint had to be
determined on the basis that Ms Mongwaketse
was not, at any time, a member of the MEPF. That conclusion is of
course destructive
of the basis upon which the MEPF resisted the
claim, although for the reasons already given it is not destructive
of the Adjudicator's
jurisdiction. Ms Mongwaketse's right to
recover her contributions consequent upon the fact that she was not a
member of the
MEPF was not limited to recovering an amount calculated
in terms of rule 37(1)
(b)
.
Ms
Mongwaketse's claim
[50]
A party to a void contract who seeks to
recover money paid in terms of that contract does so in terms of an
enrichment action, conventionally
the
condictio
indebiti.
[32]
There are four general requirements for such a claim, namely, that
the party against which the claim is made must have been enriched;

that such enrichment was at the expense of the claimant; that the
claimant was impoverished; and that the enrichment must have
been
unjustified, that is, must have occurred without legal cause (
sine
causa
).
[33]
[51]
On the face of it all four elements were
satisfied in this case. The MEPF received sums of money from Ms
Mongwaketse to which it
was not entitled. Its assets were increased
by the amount of the contributions. Prima facie therefore it had been
enriched. While
it believed that the payments emanated in part from
Ms Mongwaketse and in part from the Municipality, in fact they
emanated entirely
from Ms Mongwaketse. The fact that the money was
received from the Municipality is not decisive of who was entitled to
pursue a
claim under the
condictio
indebiti
. The person who is entitled to
bring the action is the person who in law is considered to have made
the payment, and in this case
it was made by the Municipality out of
Ms Mongwaketse's funds.
[34]
She was impoverished thereby. The contributions were paid pursuant to
her putative membership of the MEPF, so they were made
sine
causa
. Although by virtue of the
tripartite nature of the contract in terms of which membership of the
MEPF was sought and granted there
were notionally three parties
involved, the reality is that the Municipality was nothing more than
the agent of Ms Mongwaketse
to make the payments on her behalf. It
contributed nothing and lost nothing and was not impoverished in
making these contributions.
The causal connection between her
impoverishment and the MEPF's enrichment was clearly established. The
MEPF was enriched at her
expense.
[52]
Although the deponent to the founding
affidavit on behalf of the MEPF realised that the basis for the
Adjudicator's determination
must have been some form of claim based
on unjustified enrichment,
[35]
little attempt was made in the application papers to deal with or
rebut such a claim. The primary approach adopted was to say that
such
a claim was outside the jurisdiction of the Adjudicator. That was
incorrect for the reasons set out above. However, submissions
were
made in the heads of argument concerning an enrichment claim and they
will be dealt with in what follows.
[53]
The founding affidavit said that the 22%
contribution, ostensibly from the Municipality, was placed and
invested to secure the payment
of member benefits under the rules,
such as death and disability benefits, funeral cover and the 1.5
times withdrawal benefit,
as well as to pay the fund's administrative
expenses. It was claimed that Ms Mongwaketse had obtained benefits on
that basis, but
these were wholly notional. Other than the amount
paid in response to her complaint she received nothing tangible from
the MEPF.
On the clear authority of
Abrahamse
v Connock's Pension Fund
she was not
entitled to any of these benefits. Had a situation arisen where such
benefits could be claimed, the MEPF would have
been obliged in
accordance with its rules and the proper administration of the fund
to do what the Connocks Pension Fund did in
the case of Mr Abrahamse
and dispute liability.
[36]
For the reasons given in that case no question of estoppel would
arise.
[54]
The fallacy in the argument that Ms
Mongwaketse was covered during the period in which her contributions
were paid to the MEPF is
that it is dependent on the proposition that
she was a member of the fund, albeit not entitled to be a member.
Because the membership
contract was void, she was not covered and not
entitled to claim the benefits that a member of the MEPF enjoyed. By
making her
contributions, she was impoverished in that her estate was
diminished, with no reciprocal advantage. In any event, a contention

that the claimant was not impoverished cannot be advanced on this
basis in a bilateral contract, that is, one where there are
reciprocal obligations owed by the parties to one another. This court
considered that situation in
Yarona
Healthcare
.
[37]
In giving the judgment of the court, Rogers AJA said:
[38]
'
I
have no quibble with the proposition that in cases of bilateral
performances by P and D under non-existent or unenforceable
contracts,
our law of unjustified enrichment would be lacking if the
end result were not, at least generally, a netting-off of gains, but
the question is how one reaches this result. The correct solution in
my view is that P and D should each use the
condictio
indebiti
to
recover from each other. …'
The
reasons advanced for that conclusion are convincing and applicable to
the present case. If the MEPF wished to resist Ms Mongwaketse's
claim
on the basis of her non-impoverishment, because of its performance
under the void agreement, it needed to establish that
case by way of
its own
condictio indebiti
or
condictio sine causa
and
ask that any resulting indebtedness be set-off against Ms
Mongwaketse's claim. It did not do this.
[55]
I accept that the contributions would have
been used in the ordinary course by the MEPF to fund various expenses
as explained in
the founding affidavit. The deponent referred to
shortfalls in payouts to members and withdrawal benefits as well as
premiums paid
to insurers for risk benefits such as death,
disability, funeral cover and administrative fees, audit fees,
actuarial fees and
asset management fees. On this basis it was
submitted that everything paid to MEPF had been used up and that Ms
Mongwaketse was
not entitled to recover more than the amount
remaining in the hands of the MEPF at the time she made her
complaint.
Absa Bank v Standard Bank
[39]
was cited in support of this contention that the MEPF had not been
enriched.
[56]
I have not found that case helpful. It
concerned the deposit of a cheque with a forged signature into an
overdrawn account. The
contention was that the overdraft was thereby
extinguished and the defendant bank was not enriched. The appeal was
dismissed because
the cheque was subject to a ten day clearance
period and the forgery was discovered within that period, so that the
credit to the
overdrawn account never became effective. I accept that
in principle it is open to the person against which, or whom, an
enrichment
claim is pursued to show that they were not enriched. The
defence may be available even in respect of the receipt and disposal
of money
.
[40]
However, the cases that illustrate this,
[41]
are both cases where cheques were deposited in the defendant's
account at the instance of a dishonest clerk and immediately
disbursed
at the instance of the clerk. That is not this case. Here
the contributions were received, included in the general funds of the

MEPF, and used in the manner already described. Insofar as they were
used to discharge expenses of the MEPF – something that
cannot
be determined – those expenses were the ordinary expenses of
the fund and would otherwise have been met from other
contributions
lawfully received. The MEPF was enriched by not having to use its
legitimate funds for that purpose. Insofar as the
contributions were
invested, the MEPF and its members have the benefit of those
investments. The defence of non-enrichment was
not established.
[57]
There were some submissions in the heads of
argument to the effect that the MEPF exerted no compulsion on Ms
Mongwaketse to make
her contributions. But that is neither here nor
there. We are not concerned with payments made under protest, as in
the cases relied
on. Enrichment claims are not dependent on
compulsion.
[58]
The next point raised in the heads of
argument was that any claim to recover contributions made prior to 10
March 2014, that is,
three years before her complaint was lodged and
the running of prescription was interrupted,
[42]
was prescribed. It is trite that the onus of establishing
prescription rests upon the party invoking it, in this case the MEPF.

On the common cause facts, Ms Mongwaketse only became aware of the
problem after receiving her benefit statement in November 2014.
That
was less than three years prior to the lodging of her complaint with
the Adjudicator. While the rules may have been available
to her on
the MEPF's website there was nothing to suggest that it would have
been reasonable for her to consult them to check whether
she was
qualified to become a member at an earlier date. It is hardly
unreasonable for an employee of a local authority to accept
that they
are entitled to membership of the pension fund to which their
employer directs them. When the fund accepts their application
for
membership and starts receiving contributions from her, it does not
lie in its mouth to accuse her of not taking reasonable
steps to
ascertain that she was qualified to become a member.
[59]
The last two matters raised in the heads of
argument were estoppel and waiver. The judgment in
Abrahamse
v Connocks Pension Fund
disposes of
estoppel. One cannot by estoppel create a situation that is
unlawful.
[43]
As to waiver, the argument was that Ms Mongwaketse had waived her
right to dispute her entitlement to be a member of the MEPF.
Like the
argument based on estoppel this cannot be accepted. This is not a
case of waiver of a right. Either Ms Mongwaketse was
a member of the
MEPF, or she was not. If she was not, there was no 'right' to dispute
her entitlement to membership. That was an
established fact, albeit
that neither she nor the MEPF was aware of that fact.
[60]
For those reasons, that are rather more
elaborate than the reasons given by the adjudicator and the high
court, I have arrived at
the conclusion that they were correct in
upholding Ms Mongwaketse's claim to a refund of her contributions to
the MEPF, that is,
all the contributions made in her name, whether
characterised as member contributions or employer contributions.
There was no challenge
to the award of interest on these amounts from
the date of the determination, nor to the rate of interest. The
amounts already
paid to her were properly to be deducted from this.
Insofar as income tax was deducted from the first amount paid to her
that appears
to have been in error, once it is understood that the
payment was not a benefit under the rules of the MEPF, but a refund
of amounts
paid to the MEPF that were not owing. Such payments are
not subject to tax in her hands. In calculating the amount still
owing
to her no tax is deductible. However, I do not think that she
is entitled to recover the tax already paid from the MEPF. She will

need to approach SARS in that regard.
Result
[61]
For those reasons I would dismiss the
appeal with costs. Even though the appeal should in my view fail I
think that a special order
should be made in regard to the costs of
preparation of a record that did not comply with the rules of this
court. I estimate that
50 per cent of the record was unnecessary and
should not have been included. The costs of preparing and perusing
the record recoverable
by the attorneys for the MEPF from their
client should be restricted to 50 per cent of those costs. As regards
counsel we were
told that it was necessary in his view to read the
entire record. That was plainly incorrect as counsel frankly
conceded. Recovery
of any fee for the preparation of the practice
note should therefore be disallowed. The requirements in regard to
both the preparation
of records and practice notes have been set out
in both the rules and the practice directives of this court, and
further explained
in several judgments.
[44]
It appears that the only way to compel the profession to comply with
these requirements is by disallowing the recovery of costs
where
there is non-compliance.
[62]
In the result, I would grant the following
order:
1 The appeal is dismissed with costs.
2 The attorneys for the appellant are limited in recovering the costs
of preparing and perusing the record from the appellant to
50 per
cent of those costs as taxed or agreed.
3 Counsel shall not be entitled to recover from his attorney any fee
in respect of the preparation of the practice note.
_________________
M J D WALLIS
JUDGE OF APPEAL
Ponnan
JA (Dissent)
[63]
I have had the privilege of reading the
judgment prepared by Wallis JA, which comprehensively sets out the
facts and issues that
call for adjudication in the appeal. I,
regrettably, am unable to agree with the conclusion reached by my
learned colleague.
[64]
I am at one with Wallis JA that on the
strength of
Abrahamse v Connock's
Pension Fund
, Ms Mongwaketse could not
and did not become a member of the MEPF. Where I part ways with my
colleague is the consequence that
follows on that conclusion. As
Trollip J made plain in
Abrahamse v
Connock's Pension Fund
, the contract
for membership that the MEPF purported to conclude with
Ms Mongwaketse was
ultra vires
and
null and void. This ineluctably brings into sharp focus the nature Ms
Mongwaketse’s claim as also the jurisdiction
of the Adjudicator
to determine it.
[65]
Jurisdiction refers generally to the power
to consider and either uphold or dismiss a claim. In
Makhanya
v University of Zululand
,
[45]
Nugent JA pointed out that the dismissal of a claim is as much an
exercise of that power as is the upholding of a claim. In that

matter, Nugent JA expressed, what he described as an immutable rule
of logic, that the power of the court to consider a claim cannot
be
dependent upon whether the claim is a good claim or a bad claim. He
added:
‘
[t]he Chief Justice, writing
for the minority in
Chirwa
, expressed
it as follows:
“
It
seems to me axiomatic that the substantive merits of a claim cannot
determine whether a court has jurisdiction to hear it”.’
[46]
[66]
The right asserted by Ms Mongwaketse in
support of her claim had not been expressly identified. It thus had
to be discerned by inference
from the facts alleged and the relief
claimed. What Ms Mongwaketse sought before the Adjudicator was for
the MEPF to ‘pay
[her] total contributions (i.e 7.5% + 22 % as
all this was contributed and structured by [her]) x
1,5
plus 22% mora interest because [she] should have been paid by
December 2015 the latest’.
[67]
The issue for determination before the
Adjudicator was whether in addition to her contribution (which she
had already been paid),
Ms Mongwaketse was also entitled to her
employer’s contribution. Had she become a member, the
Adjudicator would undoubtedly
have had jurisdiction to consider and
determine her claim, but her claim for her employer’s
contribution had to fail under
the rules of the MEPF.
[68]
Not having become a member, the difficulty
lies in having to properly characterise the nature of Ms
Mongwaketse’s claim. Where
a claim exists as a fact, it is not
capable, by the mere use of language, of being converted into a claim
of a different kind.
One should thus resist the urge to convert a
claim into a claim of a different kind under the guise of properly
characterising
the claim. Nor does it assist that, from the reasons
given by the Adjudicator, it is not possible to discover a
ratio
decidendi
for the order. In such a
situation, as Schreiner JA explained in
Fellner
v Minister of the Interior
, ‘it
becomes necessary to resort to the facts found to be material and to
the order, as if no reasons had been given, so
as to find what must
have been treated by the Court as the law, if the order was to be
justified’.
[47]
[69]
The suggestion is that Ms Mongwaketse had
an enrichment action against the MEPF. Prof Scott points out:
‘[w]hatever the deeper
origins of the South African law of
enrichment, the fact remains that the courts of South Africa have
waywardly been pursuing their
own line for some 130 years. The
reasons for this are difficult to determine’.
[48]
There has also not been universal agreement amongst academics as to
what she describes as ‘the true analytical structure
of the
modern South African law of enrichment’.
[49]
[70]
In
McCarthy
Retail Ltd v Shortdistance Carriers CC
,
[50]
Schutz JA favoured the recognition of a general enrichment action. He
suggested that the old-standing rules should stand, ‘and
be
supplemented by a general action which will fill the gaps’. In
his opinion, under a general action, only very few actions
would
succeed which would not have succeeded under one or other of the old
forms of action or their continued extensions. According
to the
approach adopted by Schutz JA, South African law recognises four
general principles of enrichment liability: the defendant
must be
enriched; the plaintiff must be impoverished; the defendant’s
enrichment must be at the plaintiff’s expense,
ie there must be
an appropriate causal link between the defendant’s enrichment
and the plaintiff’s impoverishment;
and the defendant’s
enrichment must be unsupported by any legal ground (or unjustified).
[71]
It is perhaps to the
condictio
indebiti
or the
condictio
sine causa
that one must look. Both
have the same general requirements. ‘The object of [the latter]
is the recovery of property in which
ownership has been transferred
pursuant to a juristic act which was
ab
initio
unenforceable or has
subsequently become inoperative (
causa
non secuta
;
causa
finita
)’.
[51]
The scope of the
condictio sine causa
specialis
cannot be ‘succinctly
formulated’.
[52]
It has been described as a ‘catch-all’ for cases
requiring a remedy which do not fall under any one of the
condictiones sine causa generalis
.
[53]
The aim of the
condictio
is to undo (reverse) performance.
[72]
In accordance with established principles
relating to an enrichment action, the burden of proof rests on a
plaintiff to prove all
the elements
,
including the fact of the enrichment and the quantum thereof. As it
was put by Rose-Innes J in
Govender
v Standard Bank of South Africa Ltd
,
‘[i]n assessing whether defendant has been enriched by the
payment, account must be taken of any performance rendered by

defendant which was juridically connected with his receipt of the
money’.
[54]
Every enrichment action must consequently embrace an enquiry not only
into the defendant’s enrichment, but also the plaintiff’s

impoverishment.
[55]
[73]
‘
It is not sufficient that a
defendant has been enriched and the plaintiff impoverished’,
[56]
there must be a causal link between the enrichment and the
impoverishment (the third requirement). This includes both legal and

factual causation. It has been opined that the theoretical
underpinnings of this element have not been fully worked out by our

courts,
[57]
and occasions particular difficulty in a case such as this, where
more than two parties are involved (cases of ‘indirect

enrichment’).
[74]
According to Visser and Miller:
‘
The spectre of having to work
out the pattern of liability in an enrichment case involving more
than two parties is one which drives
most lawyers to despair. This is
understandable, for the factual situations that arise in these cases
are indeed often very complicated
. . . However, this general rule
did not produce a wholly satisfactory situation, as is evidenced by
the fact that the courts allowed
some relief in such cases through
the back-door of liens. Recently, however, there have been
encouraging pronouncements in various
cases, signalling a move away
from the notion that a single rule is able to cater for all the
instances of indirect enrichment.
Nevertheless, much uncertainty
remains.’
[58]
They suggest that ‘the uncertainty is due
mainly to the fact that the ordinary elements of enrichment liability
. . . are
not systematically examined in cases of indirect
enrichment; and, therefore, that a return to a principled application
of the basic
elements of enrichment liability is required’.
[59]
[75]
Turning to the fourth requirement: Lawsa
postulates that the content of the concept ‘without legal
ground’ or ‘
sine causa
’
is a layered one. The decision whether the retention of the
enrichment is
sine causa
is a composite one, requiring further factors to be considered beyond
mere title.
[60]
[76]
In her
application
form for membership of the MEPF, Ms Mongwaketse indicated that her
membership contribution would be 7.5% and her employer’s

contribution 22%. She was paid out 1.5 times her 7.5% contribution,
plus such interest as accrued on that contribution. According
to the
MEPF, a member’s contribution is invested in accordance with
its investment strategy, whilst the employer’s
22% contribution
is used to fund administration costs, services, products and
benefits, as also, the withdrawal and retirement
benefits received by
members upon termination of their employment. Ms Mongwaketse had
available to her the services, products
and benefits procured by the
MEPF for its members and she was paid out a withdrawal benefit funded
by her employer’s contributions.
[77]
I have touched on the relevant principles
to demonstrate that the Adjudicator, who, without reasons,
held that the MEPF was obliged to refund ‘the
total amount of all the contributions made by her and those that it
deemed as
made by the [her employer]’,
appeared
to have no appreciation for the true complexity of the matter.
There was no attempt whatever by the Adjudicator
to satisfy herself that any of the requirements had been met. This is
so, particularly
since what Ms Mongwaketse sought to recover from the
MEPF was the contribution that had been paid, not by her, but by her
employer.
This suggests that such impoverishment as may be proven,
was that of her employer.
[78]
A tripartite relationship ordinarily exists
between a fund, a member and the member's employer, that is usually
constituted by contract.
Ms Mongwaketse’s relationship with her
employer was governed by her contract of employment. Thus to the
extent that she may
have been impoverished, any claim as she may have
had could only have been one under her contract of employment and
could only
lie against her employer. No such claim was advanced by Ms
Mongwaketse. Whether her employer, in turn, may have had a claim
against
the MEPF does not arise for consideration. There being no
valid pension fund contract, it cannot be said that there was in
place
any agreement between her employer and the MEPF that conferred
rights that were enforceable at her instance against the MEPF.
[61]
In my view, her employer could only have paid to the MEPF, on her
behalf, if there had been a valid pension fund contract in place.
[79]
However, assuming that Ms Mongwaketse’s
claim was good, despite the wide meaning of ‘complaint’
and ‘complainant’
in s 1(1) of the PFA, I do not believe
that the Adjudicator had jurisdiction to enter into the substantive
merits of the claim.
[80]
In terms of s 1(1), ‘complaint’
means:
‘
a complaint of a complainant
relating to the administration of a fund, the investment of its funds
or the interpretation and application
of its rules, and alleging-
(a)
that a decision of the fund or any
person purportedly taken in terms of the rules was in excess of the
powers of that fund or person,
or an improper exercise of its powers;
(b)
that the complainant has sustained or
may sustain prejudice in consequence of the maladministration of the
fund by the fund or any
person, whether by act or omission;
(c)
that a dispute of fact or law has
arisen in relation to a fund between the fund or any person and the
complainant; or
(d)
that an employer who participates in
a fund has not fulfilled its duties in terms of the rules of the
fund;
but shall not include a complaint
which does not relate to a specific complainant.’
[81]
First, ‘a complaint’ must be
that of ‘a complainant’. Second, the complaint had to
‘relate to the
administration of a fund, the investment of its
funds or the interpretation and application of its rules’. It
is difficult
to see how Ms Mongwaketse’s complaint related to
any of these matters. Even if it did (and this is the third), the
complaint
had to relate to an allegation contemplated in
subparagraphs (a) to (d). Once again it is difficult to see how the
allegation raised
by Ms Mongwaketse is one contemplated in any of
those subparagraphs. In any event, fourth, complaints that ‘do
not relate
to a specific complainant’ are excluded.
[82]
As the complaint must be one of a
complainant and the definition serves to exclude complaints that do
not relate to a specific complainant,
one must unavoidably turn to
the definition of complainant. According to s 1(1) of PFA,
‘complainant’ means:
‘
(
a
)
any person who is, or who claims to be -
(i) a member or former member, of a fund;
(ii) a beneficiary or former beneficiary of a fund;
(iii) an employer who participates in a fund;
(iv) a spouse or a former spouse of a member or former
member, of a fund;
(
b
) any group of persons referred to in paragraph
(a)
(i), (ii), (iii) or (iv);
(
c
) a board of a fund or member thereof; or
(
d
)
any person who has an interest in a complaint’.
[83]
Only subparagraphs
(a)
(i)
or
(
d
)
of the definition of complainant
could possibly find application to Ms Mongwaketse. As to
(a)
(i):
In her complaint to the Adjudicator, Ms Mongwaketse stated:
‘[a]ccording to the rules I am excluded as a member. Which

means to begin with I shouldn’t have been a member’. On
the strength of
Abrahamse v Connock's
Pension Fund
, she was not a member or
former member of the MEPF. Nor, on her own showing, was she a person
who claimed to be a member or former
member. As to
(d)
:
I have some difficulty with the notion that she could at one and the
same time have been a complainant under subparagraph
(a)
,
as also one under subparagraph
(d)
,
for it seems to me that the legislature must be taken to have had in
mind different categories of complainants under each of the

subparagraphs. In any event, subparagraph
(d)
circuitously takes one back to complaint.
[84]
Had both the MEPF and Ms Mongwaketse taken
the correct view that she was not and had never become a member, it
is difficult to see
how the Adjudicator could have jurisdiction to
decide the complaint. Jurisdiction appeared to rest on the view,
wrongly held as
it turns out, that her claim fell to be treated as if
she were indeed a member. However, if the Adjudicator had concluded,
as she
should have, that such a view was unsupportable, she had no
power other than to dismiss Ms Mongwaketse’s claim for want of

jurisdiction.
[62]
[85]
Some criticism has been levelled at the
MEPF as to how the jurisdictional challenge came to be raised. It may
be useful to consider
what would have happened had Ms Mongwaketse
advanced her claim in an action, on particulars of claim that
alleged the material
facts, went on to allege the conduct complained
of and to claim appropriate relief. An exception to the
particulars of claim
on the basis that the court lacked
jurisdiction to consider the claim, if taken, would have been
disposed of first. Indeed, had
the matter been pleaded
conventionally, the court hearing the jurisdictional challenge would
have been called upon to consider
the jurisdictional issue with
reference only to the particulars of claim.
[86]
If the case had been properly pleaded and
an exception properly taken, the court would have been called upon to
determine whether:
(i) Ms Mongwaketse was indeed a ‘complainant’;
and, (ii) the ‘claim’ that she sought to advance was one,

as defined in the PFA. Those antecedent questions, for the reasons
that I have advanced, ought to have been answered against Ms

Mongwaketse. The same should hold true for the Adjudicator.
[87]
It follows on the view that I take of the
matter, that the Adjudicator suffered a want of jurisdiction.
Moreover, even on the assumption
that she did indeed have the power
to enter into the substantive merits of the matter, Ms Mongwaketse’s
claim ought not to
have succeeded. In the result, I would uphold the
appeal. It remains to record that I am in agreement with paragraphs 2
and 3 of
the order proposed by Wallis JA, for the reasons advanced by
him in paragraph 61 of his judgment.
_________________
PONNAN JA
JUDGE OF APPEAL
Weiner
AJA (Dissent)
[88]
I have had the benefit of reading the
erudite judgments of both Wallis JA and Ponnan JA. For reason set out
below, I am of the view
that the appeal should succeed, on the basis
that the Adjudicator did not have jurisdiction to decide the matter.
I however differ
from Ponnan JA in respect of some of the reasons he
has articulated in arriving at his decision, in particular, on the
issue of
the interpretation of ‘complaint’ and
‘complainant’.
[89]
The Adjudicator found that, in terms of the
MEPF’s Rules,
the definition of an
“
employee
”
in the Rules of the Fund does not include a person who is employed
for a limited period.
Ms Mongwaketse was
specifically excluded from the definition of an
“employee” and thus should never have been accepted by
the MEPF as a
member.
[90]
Having regard to the
principle laid down in
Abrahamse
v Connock's Pension Fund,
[63]
it is clear that Ms
Mongwaketse’s membership of the MEPF was
void ab initio. Thus, as Wallis JA points out, the Adjudicator and
the high court
were correct in holding that Ms Mongwaketse was not a
member of the MEPF. In my view, this does not mean, however, that she
could
not be a complainant with a valid complaint.
[64]
[91]
I agree with Wallis JA
[65]
that:
‘
[U]nder s 1(1) of the PFA a
complainant is defined so as to include any person who is, or claims
to be a member or former member
of a fund, a spouse or former spouse
of a member or former member, a beneficiary or former beneficiary of
a fund, an employer who
participates in a fund, a board of a fund or
a member of the board, or any person who has an interest in a
complaint. The latter
is clearly a catch-all provision inserted in
order to ensure that anyone who has a complaint as defined is
entitled to pursue it
before the Adjudicator. The net was accordingly
cast wide…[T]he definition of complaint is equally wide and
likewise should
be generously interpreted.’
[92]
The MEPF submitted
that to qualify as a ‘complaint’ under the PFA, a
complaint must not only fall within one of the
circumstances listed
in (a) to (d) of the definition of a ‘complaint’ under
s 1 of the PFA (‘the (
a)
to (
d)
requirements’), but must also relate to ‘the
administration of a fund, the
investment
of its funds or the interpretation and application of its rules’
(‘the general jurisdictional prerequisites’).
The
appellants contended that the court a quo erred in finding that there
was a complaint (as defined) in circumstances where:
(a)
Ms
Mongwaketse, according to the court a quo, claimed relief on the
basis that she was not a member. Once the Adjudicator found
that Ms
Mongwaketse was not a member, Ms Mongwaketse’s further claims
had no relation to the ‘administration of a fund,
the
investment of its funds or the interpretation and application of its
rules’.
[66]
One of these requisites had to be present; in the absence thereof,
the Adjudicator had no jurisdiction.
(b)
Ms Mongwaketse’s ‘complaint’
did not fall within
the
(a
)
to (
d
)
requirements.
[93]
Ms Mongwaketse
applied for and was accepted
as a member of the MEPF. She made the required contributions until
October 2015 and these contributions
were used and invested in
accordance with the Rules of the MEPF.
[94]
The Complaint to the Adjudicator is headed ‘Pensions Payout’.
It deals, in essence, with her complaint that she
has not been paid
out what is due to her.
She alleged
that she sustained financial prejudice as a result of the decision of
the MEPF to accept her as a member, when she did
not qualify.
Whether
or not Ms
Mongwaketse
cou
ld ever have been a member of the
MEPF clearly led to the dispute, as to what, if anything, she was
entitled to be repaid. This
formed the basis of the complaint.
It
also related to an act on the part of the MEPF
dealing with ‘
the
administration of a fund, the
investment
of its funds or the interpretation and application of its rules’.
[95]
The MEPF's case was that Ms Mongwaketse was a former member of the
MEPF and was bound by its Rules.  Having been accepted
as a
member, Ms
Mongwaketse
clearly fell within the definition of a
complainant which refers to ‘
any
person who is
or who claims to be a
member or
former member
,
of a fund’ (emphasis added). Counsel for the MEPF appeared to
concede this. She thus qualified as a complainant and her
complaint
fell within the purview of the MEPF’s rules. As Wallis JA
stated:
[67]
‘
[T]he argument that she did
not qualify as a member or former member of the fund for the purpose
of making a complaint seems slightly
perverse. The fact that she was
not qualified to be a member did not alter the fact that she had
applied to become one and been
accepted. On any basis that sufficed
to bring her within the category of someone claiming to be a former
member of the fund. The
fact that she should not have been accepted
as a member cannot alter that’.
[96]
I however disagree with Wallis JA’s conclusion
[68]
that:
‘
[O]nce it is recognised that
the validity of Ms Mongwaketse's membership of the MEPF was not a
pre-requisite to her entitlement
to pursue a complaint, there was no
reason in law, if the proper characterisation of her claim was
enrichment, why the Adjudicator
could not determine it.’
[97]
Ponnan JA deals with what the consequences were of finding that Ms
Mongwaketse was not a member. He states:
[69]
‘
[H]ad both the MEPF and Ms
Mongwaketse taken the correct view that she was not and had never
become a member, it is difficult to
see how the Adjudicator could
have jurisdiction to decide the complaint. Jurisdiction appeared to
rest on the view, wrongly held
as it turns out, that her claim fell
to be treated as if she were indeed a member.’
[98]
Once the adjudicator found that Ms Mongwaketse was not a member, and
was not subject to the MEPF’s rules, the Adjudicator’s

powers ceased as Ms Mongwaketse’s
claims had no
relation to the ‘administration of a fund, the investment of
its funds or the interpretation and application
of its rules’.
[99]
I agree with Ponnan JA that, having found that Ms Mongwaketse was not
a member, the Adjudicator had no power other than to
dismiss Ms
Mongwaketse’s claim for lack of jurisdiction. I would thus
uphold the appeal. In view of this conclusion, it is
not necessary to
deal with the merits of the claim and whether or not the grounds for
unjust enrichment were proven. However, I
endorse the costs orders
proposed by Wallis JA.
_________________________
WEINER AJA
ACTING JUDGE OF APPEAL
Appearances:
For
appellant: J P V Mc Nally SC
Instructed
by: Webber Wentzel, Johannesburg
Symington
& De Kok, Bloemfontein
For
respondent: L le R Pohl SC (
amicus curiae
)
[1]
Mawonga and another v Walter Sisulu Municipality and others
[2020] ZASCA 125.
[2]
Mungal v Old Mutual Life Assurance Co Ltd;
Freeman v Old Mutual Life Assurance Co Ltd
[2009]
ZASCA 141
;
2010 (6) SA 98
(SCA)(
Mungal
)
para 8.
[3]
Under rule 37(1)
(b)
the calculation would be the amount of the contributions plus
interest in respect of pensionable service multiplied by 1.5. Ms

Mongwaketse only asked that the contributions be multiplied by 1.5,
not the contributions plus interest.
[4]
LAWSA, Vol 10, 3 ed (2017) sv 'Courts and
Tribunals', para 511.
[5]
Section 30K of the PFA.
[6]
Section 30I of the PFA.
[7]
Section 30M of the PFA.
[8]
Section 30E(1)
(a)
of
the PFA.
[9]
Shell and BP South African Petroleum
Refineries (Pty) Ltd
2001 (30 SA 683
(D) at 690 cited with approval in
Municipal
Pension Fund & another v Grobler & others
2007
(5) SA 629
(SCA) para 25 and
City of
Cape Town Municipality v South African Local Authorities Pension
Fund and Another
[2013] ZASCA 175
;
2014 (2) SA 365
(SCA) para 27.
[10]
City of Cape Town Municipality v South African
Local Authorities Pension Fund and Another
ibid.
An illustration of the election that a complainant has is provided
by
Fundsatwork Umbrella Pension Fund v
Guarnieri and Others
[2019] ZASCA 78
;
2019 (5) SA 68
(SCA), where the first decision by the fund was set
aside by the Adjudicator and the second decision was taken directly
to the
high court.
[11]
Meyer v Iscor Pension Fund
2003
(2) SA 715
(SCA) (
Meyer v Iscor
)
para 8.
[12]
Motor Industry Staff Association v Macun NO
[2015] ZASCA 190
;
2016 (5) SA 76
(SCA)
para 20;
Chirwa v Transnet Ltd
[2007]
ZACC 23
;
2008 (4) SA 367
(CC) para 47;
Gcaba
v Minister of Safety and Security and Others
{2009]
ZACC 26;
2010 (1) SA 238
(CC) para 56.
[13]
Baloyi v Public Protector and others
[2020]
ZACC 27.
[14]
Mungal
op cit,
fn 2, para 6.
[15]
C/f
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007]
ZACC; 2008
(2) SA 24 (CC) paras 90 to 104, where it was held that
the dispute resolution scheme under the Labour Relations Act 65 of
1966
excluded the application of PAJA.
Joint
Municipal Pension Fund and Another v Grobler and others
[2007]
ZASCA 49
;
2007 (5) SA 629
(SCA) was a combined review of a decision
of the Adjudicator and the board of the pension fund, but the issue
was not addressed
and the order reviewing and setting aside the
Adjudicator's decision was set aside.
[16]
Section 7(2)
(a)
of
PAJA.
[17]
Section 7(1)
(a)
of PAJA.
[18]
Mungal
op cit fn
2.
[19]
In the same way as a 'debt' in terms of
s 12
of the
Prescription Act 68 of 1969
is not equated with a 'cause of
action'.
[20]
It follows that the unreported judgment
to
which we were referred
in
Municipal
Employees' Pension Fund and another v MF Ramaphakela and others
Case Number 2016/40359 in the Gauteng Division of
the High Court, Johannesburg was incorrectly decided.
[21]
TEK Corporation Provident Fund and Others v
Lorentz
1999 (4) SA 8784
(SCA) at
894B-C;
Mostert NO v Old Mutual Life
Assurance Co (SA) Ltd
2001 (4) SA 159
(SCA) (
Mostert NO v Old Mutual)
para 30.
[22]
The same position prevails in respect of medical
aid schemes. See
Genesis Medical Scheme
v Registrar of Medical Schemes and Another
[2017]
ZACC 16
;
2017 (6) SA 1
(CC) paras 23 to 26.
[23]
Abrahamse v Connock's Pension Fund
1963
(2) SA 76
(W) at 78D-E.
[24]
Ibid, at 79A-F.
[25]
Mostert NO v Old Mutual
op
cit fn 21, para 30.
[26]
African Realty Trust Ltd v Holmes
1922
AD 389
at 403.
[27]
Wilson Bayley Homes (Pty) Ltd v Maeyane and
Others
1995 (4) SA 340
(T) at 344 I.
[28]
Van Reenen Steel (Pty) Ltd v Smith NO and
Another
2002 (4) SA 264
(SCA) paras 9
– 13.
[29]
LAWSA, Vol 9, 3 ed (2014), sv 'Contract', paras
315 and 371.
[30]
Op cit, fn 28, para 13.
[31]
Dutch Reformed Church Council v Crocker
1953
(4) SA 53 (C).
[32]
LAWSA, Vol 17, 3ed (2018 by Professor D P Visser)
sv 'Enrichment' para 212 describes this
condictio
as being appropriate to 'the transfer
of money or property for the purpose of fulfilling a putative
obligation'.
[33]
Ibid para 209. See also
McCarthy
Retail Ltd v Shortdistance Carriers CC
2001
(3) SA 482
(SCA) paras 15, 16, 19 and 20 (per Schutz JA) and para 2
at 496 (per Harms JA);
Capricorn Beach
Home Owners Association v Potgieter t/a Nilands and Another
[2013]
ZASCA 116
;
2014 (1) SA 46
(SCA) para 20.
[34]
African Diamond Exporters (Pty) Ltd v Barclays
Bank International Ltd
1978 (3) SA 699
(A) at 713A-C.
[35]
Founding affidavit, para 54, p 25, Vol 1.
[36]
For that reason, I cannot with respect agree with
my colleague when he says in para 75 of his judgment that 'Ms
Mongwaketse had
available to her the services, products and benefits
procured by the MEPF for its members and she was paid out a
withdrawal benefit
funded by her employer's contributions.'
[37]
Yarona Healthcare Network Ltd v Medshield
Medical Scheme
2018 (3) SA 513 (SCA).
[38]
Ibid, paras 54-56
[39]
Relying on
Absa Bank
Ltd v Standard Bank of SA Ltd
1998 (1)
SA 242 (SCA).
[40]
African Diamond Exporters (Pty) Ltd v Barclays
Bank International Ltd
op cit, fn 33,
at 709C-D.
[41]
King v Cohen, Benjamin & Co
1953
(4) SA 641
(W);
Weedon v Bawa
1959
(4) SA 735 (D).
[42]
Section 30H(3)
of the PFA.
[43]
City of Tshwane Metropolitan Municipality v
RPM Bricks (Pty) Ltd
[2007] ZASCA 28
;
2008 (3) SA 1
(SCA) para 13.
[44]
Caterham Car Sales & Coachworks Ltd v
Birkin Cars (Pty) Ltd and Another
[1998] ZASCA 44
;
1998
(3) SA 938
(SCA) para 36;
Van Aardt v
Galway
[2011] ZASCA 201
;
2012 (2) SA
312
(SCA) paras 31 – 38.
[45]
Makhanya v University of Zululand
[2009] ZASCA 69
;
2010 (1)
SA 62
(SCA) para 23.
[46]
Ibid para 54.
[47]
Fellner v Minister of the Interior
1954
(4) SA 523
(A) at
542F-G.
[48]
H Scott ‘Rationalising the South African
Law of Enrichment’ (2014) 18
EdinLR
433 at 433-451.
[49]
Ibid.
See also
J L Serfontein ‘What
is wrong with modern unjustified enrichment law in South Africa?’
(2015)
48 n.2
De
Jure Law Journal
and P O'Brien ‘A
Generally Applicable Condictio Sine Causa for South African Law’
(2000)
J. S. AFR. L
.
752.
[50]
McCarthy Retail Ltd v Shortdistance Carriers CC
[2001] ZASCA
14
;
[2001] 3 All SA 236
(A) para 8.
[51]
Pucjlowski v Johnston’s Executors
1946
WLD 1
at 6.
[52]
Govender v Standard Bank of South Africa Ltd
1984 (4) SA 392
(C) at 396H.
[53]
P O'Brien ‘A Generally Applicable Condictio Sine Causa for
South African Law’ (2000)
J. S. AFR. L
. 752.
[54]
Govender v Standard Bank of South Africa Ltd
1984 (4) SA
392
(C) at 404 D.
[55]
17
Lawsa
3 ed para 209.
[56]
Ibid.
[57]
17
Lawsa
3 ed para 209
.
[58]
D Visser and S Miller ‘Between Principle
and Policy: Indirect Enrichment in Subcontractor and Garage-Repair
Cases’
(2000) 117
J.S. AFR. L
594 at 594 and 595.
[59]
Ibid at 596
[60]
Ibid at 597.
[61]
Pieterse v Shrosbree and Others; Shrosbree v Love and Others
[2004] ZASCA 129
;
[2006] 3 All SA 343
(SCA) paras 8 – 9.
[62]
Makhanya v University of Zululand
[2009] ZASCA 69
;
2010 (1)
SA 62
(SCA) fn 1 above para 54.
[63]
Op cit
fn 23.
[64]
As Ponnan JA holds.
[65]
Para 27 ante.
[66]
As found by Bhoola AJ in
Municipal
Employees' Pension Fund and another v MF Ramaphakela and others
op cit fn 20 and Unterhalter AJ, in the same case, albeit on a
prima
facie
basis.
[67]
Para 34 ante.
[68]
Para 36 ante.
[69]
Para 84 ante.