SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, THOHOYANDOU
CASE NO. 555/2014
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 15.01.2026
SIGNATURE:
In the matter between:
THE BOARD OF TRUSTEES OF GOVERNMENT
EMPLOYEE PENSION FUND FIRST EXCIPIENT
THE HEAD OF GOVERNMENT EMPLOYEES
PENSION FUND SECOND EXCIPIENT
THE CHIEF DIRECTOR, PENSION
ADMINISTRATION THIRD EXCIPIENT
And
TSHIANEO CYNTHIA NDOU RESPONDENT
In Re:
TSHIANEO CYNTHIA NDOU PLAINTIFF
and
THE BOARD OF TRUSTEES OF
GOVERNMENT EMPLOYEES PENSION FUND FIRST DEFENDANT
THE HEAD OF GOVERNMENT EMPLOYEES
PENSION FUND SECOND DEFENDANT
THE CHIEF DIRECTOR, PENSION ADMINISTRATION THIRD DEFENDANT
JUDGMENT
SEMENYA DJP.
[1] The plaintiff instituted action against the defendants for payment of specific
sum of money. The claim arising out of an alleged misrepresentation made to her by
the third defen dant or by any official of the Government Employees Pension Fund
(GEPF), acting on the third defendant's instruction. The defenda nts raised rule 23
exception against the plaintiffs’ particulars of claim on the basis that, firstly, they do
not disclose the cause of action and, secondly, that this Court lacks the necessary
jurisdiction to adjudicate on the matter. The parties in this judgment, on the exception
raised by the defendants, shall be referred to as in. the main action.
[2] The background facts that led to the institution of action proceedings against
the defendants are that the plaintiff was employed by the Department of Education,
Gauteng Province as Head of Department at Ebony Park Primary School until 2011.
During the period of her employment with the Department, she became a member of
the GEPF to which she made monthly financial contributions to her pension.
[3] The plaintiff avers that during March 2011, she requested information from
GEPF concerning the value of her pension benefits as she was planning to leave the
Department. In response to he r enquiry, she rec eived a document on which the
value of the pens ion benefits was said to be Four Million Thirty Two Thousand O ne
Hundred and Twelve Rands and Eight Cents (R4 032 112 08). The plaintiff took the
document to SANLAM with a proposal f or investment in the amount stated in the
document. Satisfied with the advice she received from SANLAM, she decided t o
resign from her employment with effect from 1 August 2011.
[4] On the 30 Augus t 2011, SANLAM informed the plaintiff that GEPF has
transferred an amount of One Million One Hundred and Eighty Two Thousand Eight
Hundred and Eleven Rand and Seventy One Cents (R1 182 811. 71) into its account
and not the initial amount of R4 032 112.08. The amount claimed in this action is for
the re covery of the difference between the two amounts, being Two Million Eight
Hundred and Forty Nine Thousand Three Hundred Rand and Thirty Seven Cents
(R2 849 300.37) together with interest on that amount.
[5] The objection to this Court's jurisdiction to hear the matter is mainly based on
the addresses of the defendants as stated in the particulars of claim. The address of
the first defendant is stated as Bloc k A T […] Floor R […] Office Park, 4 […] M[…]
Road, Ashlea Gardens Pretoria, Gauteng Province. The second and third
defendants' address is 3[…] H[…] Street, Arcadia, Pretoria, Gauteng Province.
[6] Counsel for the plaintiff cont end that it is trite that an exception will only be
upheld if the pleading is such that, by any stretch of imagination, the other party will
be able to plead. He submits that the defendants in this case will be able to plead by
raising a special plea of lack of jurisdiction. In sho rt, counsel for the plaintiff argues
that an objection to the Court's jurisdiction can only be raised in a special plea and
not as an exception.
[7] The plaintiff's contention has been decided upon as follows in Makhanya v
University of Zululand1 (Makhanya).
"[29] Jurisdictional challenges will be raised eith er by an exception or by a
special plea, depending on the grounds upon which the challenge arises.
special plea, depending on the grounds upon which the challenge arises.
There will be some cases in which the jurisdiction of a court is dependent
1 2010 (1) SA 62 (SCA)
upon the existence of a particular fact (often called a 'jurisdictional fact').
Where the existence of that fact is challenged it will usually be in plea, and the
matter will proceed to a factual enquiry confined to that issue. In other cases
the existence or otherwise of jurisdiction to con sider the case will appear from
the particulars of claim and in those c ases the challenge will be raised by an
exception. In such cases a court that considers the challenge might not even
be aware of whether or not the plaintiff intends raising any defence at all to
the claim. But in both cases the is sue must necessarily be disposed of first,
because upon it depends the power of the court to make any further orders."
[8] Jurisdiction means the power vested in a Court to adjudicate upon, determine
and disp ose of the matter 2 . The plaintiff dealt with the issue of jurisdiction in
Paragraph 5 of the particulars of claim by stating that this Court derives jurisdiction
from the fact that she resides within its area of jurisdiction. In terms of section 21 of
the Superior Courts Act 10 of 2013 the Act), a Division has jurisdiction over all
persons residing or being in, and in relation to all causes arising and all offences
triable within its area of jurisdiction. Counsel for the plaintiff contended that the
plaintiff falls under the category of persons who reside within the area of this Court's
jurisdiction and that, on this basis, this Court has the power to adjudicate on the
issues raised in this case.
[9] Counsel for the defendants contends that the general rul e regarding territorial
jurisdiction is that it is determined by the place of residence of the defendant s. In
Gallo Africa Ltd and Others v Sting Music Pty Ltd and Others 3 the Court held
that the domicile of the plaintiff never determines jurisdiction. Further that in terms
of the common law principle of effectiveness, the defendant must be or reside within
of the common law principle of effectiveness, the defendant must be or reside within
the area of jurisdiction of the Court. The plaintiff's reliance on her place of residence
being in the area of this Court's jurisdiction, therefore, has no merit.
[10] Counsel for the plaintiff contends that GEPF has offices within the area of
jurisdiction of this Court. He contends, based on this fact, that this Court has
jurisdiction to hear the matter. Counsel for the defendants contended that GEPF is a
2 Ewing McDonald & Co Ltd v M&M Products Co 1991 (1) SA 252 (SCA) 256G-H
3 2010 (6) SA 329 SCA at par 8-10
juristic person with the capacity to sue and to be sued. This fact is supported by
Regulation 2 of the Rules of the Government Employees Pension Fund. Counsel for
the defendants argues that the plaintiff cannot rely on the fact that GEPF has offices
within this Court's area in that GEPF is not a party to the proce edings. On this point,
counsel for the plaintiff contends that GEPF acts through its Board of Trustees and
that the Board of Trustees is a party to the proceedings. This argument too is without
merit. In the Chairman of the Board of SANLAM Pensioenfonds
(Kantoorpersoneel) v Registrar of Pension Funds 4, the court held that the board
of.) pension fund is not a juristic person. It cannot sue or be sued. In any event, the
existence of GEPF offices within the area of this court's jurisdiction is not a factor the
plaintiff relied on to establish jurisdiction in her particulars of claim.
[11] In Makhanya the co urt held that the issue of jurisdiction must be disposed
first because it determines the power of the court to make any further o rders.
According to the particulars of claim, the addresses of the defen dant are in Gauteng
Province. Therefore, it is the Gauteng Division of the High Court that has jurisdiction
to adjudicate on the issues raised in this case.
[12] I am aware that territorial jurisdiction or the defendant's place of residence, is
not the only factor that determines jurisdiction. In terms of section 21 of the Act, the
place where the cause of action arose can be r elied upon to establish jurisdiction.
The Supreme Court of Appeal held in Cordiant Trading CC v Daimler Chrysler
Financial Services (Pty) Ltd5 that causes arising, within the meaning of section 2 of
the Act, do not refer to causes of action but to all factor s giving rise to jurisdiction
under common law. The Court further hel d that a court will have jurisdiction if the
facts establish a sufficient connection to the court's area of jurisdiction. Counsel for
facts establish a sufficient connection to the court's area of jurisdiction. Counsel for
the defendants argues that the plaintiff failed to allege the place whe re the cause of
action arose in her particulars of claim. It is indeed so that the plaintiff did not state
the place where the alleged m isrepresentation was made. If I have to stretch my
imagination, as contended by counsel for the pl aintiff, I will say the cause of action
arose in Gauteng on the basis that the plaintiff enquired about the value of her
pension interest at the time she was still employed in that Province.
4 2007(3) SA 41 (T) at 45I-46A
5 2005 (6) SA 205 (SCA) at par 11
[13] The ground of exception that this court has no jurisdiction to hear the matter
stands to be upheld. On this basis of Makhanya, this court has no power to make
further orders. I do not agree with counsel for the defendants that the plaintiff's action
should be dismissed. In terms of section 34 of the Constitution of the Republic of
South Africa, 1996, the plaintiff should be given an opportunity to have her dispute
resolved in the appropriate Court. This Court has no constitutional right.
[14] On the issue of costs, the defenda nts are the successful parties on the
exception. This court has no reason to deviate f om the general rule that costs
should follow the result. The defen dants are entitled to costs.they should be granted
costs.
[15] In the result the following order is made:
i. The exception of lack of jurisdiction is upheld; and
ii. The plaintiff's case is struck off the roll with costs on party and part y.
scale B.
MV SEMENYA
DEPUTY JUDGE PRESIDENT, LIMPOPO DIVISION.
APPEARANCES:
For the plaintiff: ADV S Sikhwari SC
Instructed by: MK Mulaudzi Attorneys
For the defendants: M P Fourie
Instructed by: MACROBERT INCORPORATED
Date heard: 23 October 2025
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by email and released to SAFLII. Date and time of
delivery is deemed to be the 15 January 2026.