IN THE EQUALITY COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: B4094/2023
In the matter between:
LEO MURFIN Complainant
And
SANLAM DEVELOPING MARKETS LTD First Respondent
SANLAM EMPLOYEE BENEFITS (PTY) LTD Second Respondent
SANLAM LIFE INSURANCE LTD Third Respondent
SANLAM GROUP LTD Fourth Respondent
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
(4) Date: 12 February 2026
Signature:
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JUDGMENT
NYATHI J
A. Introduction
[1] This judgment concerns two preliminary issues directed to be heard in limine:
(i) whether this Court, sitting as an Equality Court in terms of the Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”),
has jurisdiction over the complaint; and
(ii) whether the Respondents’ answering affidavit (or parts thereof) ought to be
struck out. The parties filed comprehensive written submissions on both
issues.
[2] The complaint arises from the Complainant’s continued participation in the Iscor
Pensioners and Former Members Scheme (“IPFM Scheme”), a group life
arrangement underwritten within the Sanlam group. The impugned term is clause 6.3
of the Master Policy, which provides for a post-age-64 reduction of death benefits by
5% per annum to a minimum of 50% of the “Original Death Benefit”. The Complainant
alleges that the introduction and enforcement of that clause, and related conduct,
amount to unfair discrimination —principally on the prohibited ground of age—and
seeks the array of remedies contemplated by section 21(2) of PEPUDA.
[3] The Respondents deny any discrimination, contend that the dispute is essentially
contractual and commercial, and submit that the Equality Court lacks jurisdiction. They
further oppose the striking-out relief and contend that the Complainant’s increasingly
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voluminous papers, some allegedly generated with AI 1 assistance, have become
abusive.
B. The issues
[4] The preliminary issues are:
o Whether the complaint, on its pleadings, falls within the Equality Court’s
subject-matter jurisdiction under PEPUDA (the “jurisdiction issue”); and
o Whether the Respondents’ answering affidavit (deposed to by Ms Mokheti)
should be struck out in whole or in part (the “strike-out issue”).
C. The applicable legal framework (brief)
[5] PEPUDA creates specialist Equality Courts to determine, inter alia, whether unfair
discrimination on prohibited grounds has occurred, and to grant appropriate
remedies. The Act’s definitions of “discrimination”, “equality” and “prohibited grounds”
(which include age) are central. Section 21 empowers this Court to hold an inquiry
and to make broad remedial orders.
[6] The parties are ad idem that jurisdiction is determined with reference to the
pleadings: if the pleaded case, properly interpreted, invokes the Court’s competence
under PEPUDA, jurisdiction is engaged. (See the statement of principle invoked by
both sides).
1 Artificial Intelligence.
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[7] Both parties also referenced the character of the Equality Court as a specialised, more
informal forum that places substance over form. That characterisation is not
controversial for present purposes and informs, but does not replace, the statutory
inquiry.
D. The pleadings in outline
[8] The Complainant pleads, among other things, that:
o Clause 6.3’s age -linked reduction of benefits imposes a disadvantage on
members “as from the policy renewal date after attaining age 64”, resulting in
a 50% diminution, and that this constitutes indirect and systemic unfair
discrimination on the ground of age;
o The clause was introduced and applied without adequate disclosure,
consultation or consent and in a manner inconsistent with the Master Policy’s
structure (relying on clauses 5 and 6.1) and with statutory and constitutional
norms; and
o Relief is sought under section 21(2) of PEPUDA, including declaratory,
interdictory and corrective orders.
[9] The Respondents submit that most of the Complainant’s quarrels are contractual
(interpretation, alleged repudiation, transfer formalities, surrender value calculations)
and thus non -equality matters. They contend that, even as to clause 6.3, the
Complainant accepts a risk-rating differentiation post-63 (by choosing Option 1) and
only disputes the quantum or extent of reductions, which (so the argument goes) is
not a discrimination claim at all. They therefore say there is no prima facie PEPUDA
complaint to found jurisdiction.
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E. The jurisdiction issue
The test
[10] The correct approach is to examine the pleaded case (including the founding and
supplementary affidavits) to ascertain whether it alleges facts that, if proven, would
constitute unfair discrimination within the meaning of PEPUDA. Whether the
Complainant will ultimately succeed on the merits is a different question.
Application to the pleadings
[11] On a fair reading, the Complainant’s case is that age operates as the decisive
trigger for the diminution of benefits in clause 6.3 (the reductions commence only “after
attaining age 64”), and that this age -based diminution—super-added to the premium
loading/benefit-retention election at 63 —constitutes a sec ond, unjustified reduction
that disproportionately burdens older members. He invokes the statutory definition of
discrimination and pleads the factors relevant to fairness. He also pleads that less
restrictive means were reasonably available. This is a quintessential equality
complaint.
[12] The Respondents’ answer —that the Complainant “accepts” a qualitative
differentiation post-63 and only quarrels with quantum —does not defeat jurisdiction.
A contention that a measure is a justified age differentiation goes to the merits and
the section 14 fairness analysis; it does not transmogrify a pleaded age -based
disadvantage into a mere commercial gripe.
[13] The Respondents further argue that clause 6.3 (or a substantively similar
mechanism) existed for decades, at least since 1998, and that the option-set post-63
merely gave members more choice rather than less. That, again, is a merits defence
(historical pr actice, actuarial rationality, continuity) which must be assessed on
evidence at the appropriate stage; it is not a jurisdictional knock-out.
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[14] It follows that the Complainant has pleaded a PEPUDA claim grounded in the
prohibited ground of age . Whether it ultimately amounts to unfair discrimination
requires the section 14 inquiry and, if necessary, expert evidence. At the jurisdictional
threshold, the Court’s competence is engaged.
Conclusion on jurisdiction
[15] The Equality Court has jurisdiction to entertain the complaint. The Respondents’
request that the matter be transferred as purely commercial is declined at this stage.
This does not preclude case -management directions to isolate equality issues from
ancillary contractual disputes for efficient adjudication.
F. The strike-out issue
The relief sought
[16] The Complainant seeks to strike out the Respondents’ answering affidavit as a
whole, alternatively in material part, on grounds that it contains inadmissible hearsay,
speculation, misstatements, and argument, and that the deponent lacks personal
knowledge of historical matters. He identifies illustrative paragraphs and annexures
impugned on these bases.
[17] The Respondents oppose the application, submit that Ms Ann Mokheti set out her
basis of knowledge (management of the complaint and access to and perusal of the
records), and contend that striking-out is inappropriate in this forum, where substance
is placed above technicality and where any hearsay or argument can be accorded the
weight it deserves. As stated in Maharaj v Barclays National Bank Ltd 1976 (1) SA
418 (A), “undue formalism in procedural matters is always to be eschewed” and must
give way to comm ercial pragmatism. At the end of the day, whether or not to grant
summary judgment is a fact-based enquiry. Many summary judgment applications are
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brought by financial institutions and large corporations. First-hand knowledge of every
fact cannot and should not be required of the official who deposes to the affidavit on
behalf of such financial institution or large corporation.”2 [my emphasis].
Principles
[18] Even in motion proceedings in the High Court, our courts have recognised that an
authorised deponent may depose on the strength of access to the litigant’s records
and direct involvement in handling the matter, provided that the basis of knowledge
and authority is disclosed. The correctness and weight of specific averments remain
for the Court. While the Equality Court’s process is more flexible and inquisitorial, it
does not license abuse nor require the Court to accept inadmissible matter; rather, it
counsels against an over-formalistic excision where any prejudice can be addressed
by weight rather than rulings as to admissibility.
Application
[19] Having reviewed the impugned portions with the helpful cross -references in the
Complainant’s submissions, I am not persuaded that the entire answering affidavit
should be struck out. The deponent stated her role in the handling of the complaint
and her access to the records. That suffices to allow the affidavit to stand at this stage
without elevating every contested assertion to proof.
[20] That said, several passages are argumentative, conclusory or speculative, and
some are premised on documents whose provenance or relevance may be
contentious. Those defects are better managed by (i) according limited or no weight
to such passages unless properly proved at trial (or main hearing), and (ii) directing
the Respondents, to the extent they wish to rely on historical facts outside the
deponent’s personal knowledge, to procure confirmatory affidavits from persons
2 Excerpt quoted from Rees & Another v Investec Bank Limited 2014 (4) SA 220 (SCA).
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with direct knowledge or to place the original records (or properly authenticated
copies) before the Court.
[21] In an Equality Court —where the Court may itself call for information and where
remedial flexibility is paramount —piecemeal excision is seldom productive at a
preliminary stage. The more proportionate course is to decline wholesale
striking-out, mark specific categories of matter as provisionally received subject
to weight, and craft directions to ensure that the record is regularised ahead of the
merits hearing.
Conclusion on strike-out
[22] The strike -out application fails, save that the Court records the following
directions (below) to regulate the evidentiary record and avoid prejudice.
G. Case-management and directions to trial
[23] To separate equality questions from ancillary contractual debates, and to ensure
a focused and fair inquiry, it is appropriate to give the following directions:
23.1 Issues for determination at the merits hearing (phase 1):
• Whether clause 6.3 and its operation constitute discrimination on the
prohibited ground of age (directly or indirectly) under PEPUDA;
• If so, whether such discrimination is unfair having regard to section 14 factors;
and
• If unfair discrimination is established, the appropriate relief under section
21(2).
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23.2 Evidentiary directions:
• If the Respondents intend to justify the impugned differentiation by reference
to actuarial rationale or industry risk-rating norms, they shall file a summary
of expert evidence (and any actuarial report) within 8 weeks; the Complainant
may file a responding expert summary within 8 weeks thereafter.
• To the extent the Respondents rely on historical policy terms (including
versions prior to 2005) and scheme transfers/continuities, they shall produce
authenticated policy documents and confirmatory affidavits from persons
with direct knowledge of such documents/events, within 6 weeks.
• Any party relying on annexures which are not self-proving must identify their
source, date, and author and provide confirmatory material where available.
23.3 Record regularisation:
• All passages in either party’s affidavits that are argumentative or legal
submissions shall stand as such, without being treated as evidence of fact.
Their weight shall be assessed accordingly at the hearing.
H. Costs
[24] In equality litigation, costs ordinarily follow the Biowatch3 approach to avoid a
chilling effect on bona fide assertion of constitutional and equality rights. Both parties
approached the preliminary hearing in good faith and were partially successful: the
Complainant on jurisdiction; the Respondents on the strike -out. The just order is that
each party shall bear its own costs of the preliminary hearing.
3 Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009
(10) BCLR 1014 (CC) (3 June 2009)
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I. Order
[25] The following order is made:
25.1 The Equality Court has jurisdiction to hear and determine the Complainant’s
complaint under PEPUDA.
25.2 The Complainant’s application to strike out the Respondents’ answering affidavit
is dismissed, subject to the case-management directions below.
25.3 Directions:
• (a) The Respondents shall, within 6 weeks, file authenticated copies of any
historical policy instruments and scheme -transfer documents on which they
rely, together with confirmatory affidavits from persons with direct knowledge.
• (b) The Respondents shall, within 8 weeks, file any actuarial/expert summary
and report on which they rely; the Complainant shall have 8 weeks thereafter
to file a responding expert summary.
• (c) All argumentative or conclusory matter in either party’s affidavits is received
subject to weight ; factual assertions outside the deponent’s knowledge will
require proper proof at the merits hearing.
25.4 Costs: No order as to costs.
____ __
J.S. NYATHI
Judge of the High Court
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(sitting as Equality Court)
Gauteng Division, Pretoria
Date of hearing: 15/07/2025
Date of Judgment: 12 February 2026
On behalf of the Complainant/Plaintiffs: Mrs. Barbra Murfin (Complainant’s wife).
Instructed by: Mr Leo Murfin (appearing in person).
E-mail: Leomurfin@gmail.com
On behalf of the First and Fourth Defendants: (Adv.) Mr. Doug C. Ainslie
Duly instructed by: Moodie & Robertson Inc.
E-mail: ainslie@group621.co.za
Delivery: This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand-down is deemed to be 12 February 2025.