THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , JOHANNESBURG
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHERS JUDGES: NO
(3) REVISED
20/01/2026
DATE SIGNATURE
In the matter between:
THE STANDARD BANK OF SOUTH AFRICA LIMITED
t/a inter alia Standard Bank
and
HENRY MCMURRAY
THE PENSION FUND ADJUDICATOR
MUVHANGO ANTOINETTE LUKHAIMANE
STANDARD BANK GROUP RETIREMENT FUND
JUDGMENT
CASE NO: 2024 -136123
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
FOURTH RESPONDENT
BHOOLAAJ,
Introduction
[1] This matter concerns an interlocutory application for the filing of a
supplementary founding affidavit arising in proceedings arising from a determination
of the Penson Funds Adjudicator ("the second respondent") in terms of section 30P of
the Pension Fund Act 24 of 1956 ("the Act").
Issues
[2] The issues for determination are:
2.1 whether leave should be granted for the applicant to file a supplementary
founding affidavit.
2.2 should the court grant leave to file the supplementary founding affidavit,
then the normative process of answering and replying affidavits would apply.
2.3 should the court refuse to allow the supplementary founding affidavit,
then the court will proceed to consider the merits in the main application.
Background facts
[3] There were two applications set down for hearing on the same day: the main
application and an application for leave to file a supplementary founding affidavit.
[4] The first respondent did not file any notice of opposition to the application for
leave to supplement. The first respondent addressed these issues only in its heads of
argument, together with submissions directed at the main application.
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[5] The application for leave to file a supplementary founding affidavit was not
opposed on affidavit.
[6] Whilst the respondent raised objections in the heads of argument, it is trite that
heads of argument do not constitute evidence. Procedural objections of this nature are
ordinarily required to be raised formally and timeously on affidavit.
[7] In any event, where an application is unopposed, the Court retains a discretion
whether to grant the relief sought. That discretion must be exercised judicially and with
due regard to the interests of justice.
Legislative Framework and general principles
[8] The general rule is that an applicant must make out its case in the founding
affidavit. That rule, however, is not inflexible.
[9] A court has a discretion to permit the filing of supplementary affidavits where
the interests of justice so require, having regard to factors such as the nature of the
proceedings, the explanation for the supplementation, the stage which it is sought;
and whether any prejudice is occasioned to the opposing party.
[10] In Minister of Environmental Affairs and Planning v Clairison's CC,1 the SCA,
the Supreme Court of Appeal reaffirmed that the admission of supplementary affidavits
lies within the discretion of the court, to be exercised judicially.
1 (408/ 2012) [2013) ZASCA 82; [2013) 3 All SA 491 (SCA); 2013 (6) SA 235 (SCA) (31 May 2013)
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[11] Proceedings arising from determination of the Adjudicator are not rigidly
confined to the record. Section 30P (2) of the Act expressly empowers the court to
receive further evidence, reflecting a degree of procedural flexibility.
[12] The court is mindful that its acting term has concluded. In those circumstances,
it w ould be inappropriate to make binding or dispositive findings on substantive
procedural objections that may arise in the main application, as this could render the
matter part-heard and constrain the discretion of the judicial officer subsequently
seized with the matter.
[13] Judicial restraint is therefore warranted. The interests of justice is best served
by confining the present determination to the narrow interlocutory issue and leaving
the substantive procedural questions to be determined together, on a complete set of
papers, by the court that ultimately hears the matter.
Evaluation
[14] The applicant seeks to supplement its founding affidavit in order t o correct
certain legal statements contained in the founding affidavit, clarify a paragraph in the
founding affidavit, and to clearly illustrate to the Court, premised upon further
correspondence rad with the applicable Rules of the Fourth Respondent.
[15] The first respondent has not demonstrated any prejudice that it would suffer to
justify this court refusing the relief sought. The first respondent will have an opportunity
to respond to the supplementary affidavit. This will also promote the proper ventilation
of the issues when the main application is heard.
[16] In these circumstances, and without expressing any view on the sustainability
of the main application or the merits of the procedural objections raised, the Court is
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satisfied that it is in the interests of just ice to permit t he filing of the applicant's
supplementary founding affidavit.
Order
[17] In the result, the following order is made:
17 .1. The applicant is granted leave to file a supplementary founding affidavit.
17 .2. The respondent is granted leave to deliver a supplementary answering
affidavit, if any, within the time periods prescribed by the Rules.
17 .3 The applicant is granted leave to deliver a replying affidavit to the
respondent's supplementary answering affidavit, if any, within the time periods
prescribed by the Rules.
17.4. The costs of the application shall be costs in the main application.
CB. BHOOLA
Acting Judge of the High Court
Gauteng Division of the High Court, Johannesburg
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Delivered: This judgment was prepared and authored by the Judge whose name is
reflected on 20 January 2026 and is handed down electronically by circulation to the
parties/their legal representatives by e mail and by uploading it to the electronic file of
this matter on Caselines . The date for hand-down is deemed to be 20 January 2026
APPEARANCES
Date of hearing: 17 November 2025
Date of judgment: 20 January 2026
For the applicant: Adv. WA de Beer
(Tel: 082 337 5126, email advwadebeer@mweb.co.za)
Instructed by Jason Michael, Smith INC. Attorneys
(Tel: 011 447 8188, email: grant@jmsainc .com.)
For the first respondent: Advocate Tshivhase
(Tel: 083 299 5614, email: tshivhasesolomon2@gmail.com )
Instructed by: Munyai Attorneys
(Tel: 065 1467 052, email: gawushi10@gmail.com )
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