IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION, MTHATHA]
Reportable
Case no.: CA 108/2024
In the matter between:
MFANELO MANKOMO ( EXECUTOR) Appellant
And
GOVERNMENT EMPLOYMENT PENSION FUND AND ANOTHER Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
KUNJU AJ:
Introduction
[1] This appeal brings into sharp focus an often-ventilated point in our motion
courts. The question of whether or not it is competent for a Court to raise and decide
the issue of the existence of a dispute of fact in a matter on its own accord and
without a prior invitation to the parties to address on such issue is at the centre of
this appeal.
[2] The Appeal emanates from the Regional Court of Mthatha. It is opposed by
the first Respondent.
The Parties
[4] The Appellant is an Estate representative of the late Nontathu Nancy
Mankomo (the deceased). In that capacity he instituted motion proceedings in the
Regional Court of Mthatha. The deceased was employed by the Department of
Defence before she passed away and she was a contributor to the pension fund, the
first Respondent in this appeal.
[5] The first Respondent is the Government Employment Pension Fund (GEPF or
the Respondent). It is governed by the Government Pension Law, Proclamation 21
of 1996. Its core function is to manage and administer pensions and related benefits
for Government employees and employees of certain other participating employers.
As a contributor to GEPF the deceased had expected to be paid her pension payout
(benefit) by this Respondent before she passed away.
[6] The second Respondent is ABSA Bank Limited, a banking institution
established in terms of the laws of the Republic of South Africa. The pension benefits
of the deceased were to be paid into her bank account, which was held by ABSA
Bank. For reasons not apparent from the record, the application against this
Respondent was withdrawn in the Court a quo. Reference in this judgment to the
Respondent means the first Respondent only unless specifically stated otherwise.
Background
[7] On 18 January 2018, Messrs Mlindazwe & Associates wrote a letter to the
Respondent’s Mthatha office. The first Respondent’s office day stamp depicted in the
letter reflects 19 January 2018 as the date of receipt of the letter. The letter stated
that the deceased passed away at the time the attorneys were pursuing both her
dismissal dispute with her employer mentioned above and the payment of her
pension benefits. The attorneys advised that the deceased had presented to them a
letter reflecting a scheduled date and amount for payment into her ABSA bank
account. The attorneys further recorded that they had written to the Respondent on
behalf of the deceased who was their client, requesting information relating to the
payment of pension benefits and in response they were told that such information
was confidential. The letter further recorded that Respondent’s Mthatha office had
advised that the money reflected on the payment schedule was payable to SARS.
[8] This letter of demand further stated the following:
“…it appears that there is an amount due to Mankomo and if such was done, kindly
furnish us with proof of payment to know that they do not have claim”.
[9] The papers do not reveal if there was a response to the Appellant’s letter
dated 18 January 2018. It appears that in the same year (2018), the firm, Mlindazwe
Attorneys closed down. The Appellant was then represented by another firm of
attorneys (Sicwetsha Attorneys). They wrote another letter of demand dated 4 July
2019 and, in that letter the following areas are pertinent:
“…Now, Mankomo is late and has been substituted by his son Mfanelo Mankomo who is
currently responsible for the estate of his mother. May we advise yourselves that if this is
not paid within a period of fifteen days from the due date or receipt of this letter, we shall
move an application to Court against you compelling payment of the money. For your
records we attached herein copies of power of attorneys, termination of mandate and
letter of authority by Master’s office”.
[10] The termination of mandate referenced and adverted to above refers to the
previous attorneys.
[11] The GEPF responded to the letter of 4 July 2019 received from Sicwetsha
Attorneys, and the essence of the response was recorded as follows:
“I wish to inform you that this department considers all individual pension matters as
strictly confidential. In view thereof this office can unfortunately not assist you in this
matter”.
[12] It seems that there was an earlier engagement between the Appellant and the
Respondent because there is another letter dated 6 May 2015 received from GEPF
in which confidentiality was raised as the reason for not helping or responding to the
essence of the inquiry posed by the Appellant and or his Attorneys. This fuelled the
litigation process. Effectively, no response was received by the Appellant.
[13] Given the above attitude demonstrated by GEPF, the Appellant instituted
these proceedings on 29 July 2022. He sought for an order directing GEPF to pay an
amount
of R207 314,14 to the Appellant, and the second Respondent to indicate if there
was ever any payment in the sum stated above made to the deceased bank account
at the instance of the first Respondent between the years 2014 and 2015.
[14] Only the file Respondent had filed a notice to oppose and subsequently an
answering affidavit.
[15] The answering affidavit was filed almost a year after the date the notice to
oppose was served. A replying affidavit was filed soon after the delivery of the
answering affidavit. The Respondent did not consider it necessary to file a
condonation application. This was raised as an issue by the Appellant. From a
reading of the judgment, I am not convinced that the condonation application made
orally in court was properly motivated or that it passed muster. Happily, that is not an
aspect I have to decide because it is likely to be revisited by the Court below. Let it
suffice to say the Court below granted the condonation application.
The issue
[16] The issue that emerged and crystallized as being dispositive of this appeal,
and on which both the Appellant and the Respondent were heard is the competence
of a Court, on its own accord and without hearing the parties, to identify and decide
an issue such as that of the existence of a dispute of fact.
The principal contentions of the parties in the Court a quo.
(i) The Appellant
[17] The Appellant contended that the annexures relied upon by the
Respondent are not proof of payment, and that all that the documents show is that
payment was scheduled to be made to the ABSA bank account of the deceased, and
on those bases the Appellant was entitled to his relief.
[18] The Appellant argued strongly that an answering affidavit filed after a year
without a condonation application renders the answering affidavit non -existent. I
have expressed my views on this point above.
[19] As previously stated, the Appellant abandoned the relief he sought against the
second Respondent in the court a quo.
(ii) The Respondent
[20] The Respondent argued that the annexures “ CM1” and “ CM2”, being the
annexures adverted to above, are in fact sufficient to prove that the payment was
made to the Appellant.
[21] I have decided to eliminate other contentions that are either not germane in
the determination of this appeal or relevant to the pertinent decision reached by the
Regional Magistrate. The Regional Magistrate simply decided the matter on the
finding of the existence of a dispute of facts. As sounded above, that constitutes the
focal point of this appeal.
The findings of the Court below
[22] After the Regional Magistrate had engaged with the question of whether these
documents constituted proof of payment, he concluded that he was unable to reach
a definitive position in that regard. He held, in paragraph 31 of his judgment, that the
dilemma he found himself in constituted a dispute of fact which he reasoned as the
basis on which the application had to fail. He also said that the dispute of fact was
foreseeable.
Discussion
[23] In the Magistrates’ Courts, disputes of fact are regulated by rule 55 (1) k (i) of
the Magistrate’s Court Rules. It being a rule on which the demise of the Applicant’s
application was based, the Court a quo does not appear to have properly considered
these provisions. Rule 55 (1) (k)(i) provides :
“Where an application cannot properly be decided on affidavit the court may dismiss the
application or make such order as it deems fit with a view to ensuring a just and
expeditious decision”.
[24] Rule 55(1)(k)(i) is worded similarly to rule 6 (5)(g) of the Uniform Rules of
Court. They basically deal with the same procedure or matter. Ineluctably, the Courts
decisions under both rules will be helpful in deciding this matter.
[25] The relevance of the provisions of rule 55 (1) (k)(i) in this matter is that it
raises two fundamental subsidiary issues to the main issue mentioned in paragraph
3 of this judgment. Those subsidiary issues are : (i) whether the Regional Magistrate
properly interpreted and applied the rule or properly applied his discretion under
the rule and (ii) whether it would be in the interests of justice and fair for the
Appellant to issue the proceedings afresh and by way of action proceedings purely
because the Court below misconstrued its discretionary powers set out under rule 55
(1)(k)(i) or it improperly applied the rule.
[26] I conceive and consider the above subsidiary issues to be imperative because
the dismissal of a matter under rule 55 (1) (k)(i ) is without a final effect. However,
that outcome, final or otherwise must be a product of a proper interpretation and
application of the law or rule. If that is left unchecked, the provisions of section 34 of
the Constitution would have been betrayed.
[27] However, I must sound at this early stage that in this matter action proceedings
could be a cold comfort to the Appellant given that prescription of the claim could
present difficulties to him were the matter to be instituted afresh.
[28] Below, I will first deal with what I believe was an incorrect approach by the
Regional Magistrate. Thereafter, I will deal with the subsidiary issues adverted to
above.
[29] The foundational principle of our law is that justice can only be achieved if the
procedure leading to a decision is fair. It is fundamental to litigation process that
matters be decided within the boundaries of the pleadings. The parties to legal
proceedings are entitled to have a resolution of their differences on the basis of the
issues joined in the pleadings ( Rodaro v Royal Bank of Canada 2002 CanLII
41834 ON CA).
[30] Our jurisprudence is clear: the purpose of pleadings is to define the issues for
the other party and the Court . Courts are called upon to adjudicate the disputes
that arise from the pleadings and those disputes alone. The above jurisprudence
can be traced and sourced from authorities such as Minister of Safety and
Security v Slabbert (2010) 2 All SA 424 SCA paragraphs 11, 12 and 22 . In that
matter, the Court said:
“[11] The purpose of the pleadings is to define the issues for the other party and the
court. A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.
[12] There are, however, circumstances in which a party may be allowed to rely on an
issue which was not covered by the pleadings. This occurs where the issue in
question has been canvassed fully by both sides at the trial . In South British
Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd, this court said: 'However, the
absence of such an averment in the pleadings would not necessarily be fatal if the
point was fully canvassed in evidence. This means fully canvassed by both
sides in the sense that the Court was expected to pronounce upon it as an
issue'.
[22] A court is not bound by pleadings if a particular issue was fully canvassed during
the trial. But there is not the slightest suggestion that the matter was so
canvassed. As a matter of fact, neither the plaintiff’s friend nor his wife testified on
his behalf in
respect of his state of intoxication at the police office. One can only assume, in the
absence of any other explanation, that they would not have supported him. In other
words, the police had at the end of the plaintiff’s case not the slightest inkling that
they had to defend the continued detention after the arrival of the plaintiff’s wife at
the police station. The defendant was entitled at that stage, at the very least, to
know that it had to establish that the legality of the continued detention was
an issue. Cases by ambush are not countenanced”.
[31] The further principle endorsed, underscored and propounded in those cases
is that Courts are bound not to decide issues falling outside the pleadings, without
determining issues of fairness and prejudice.
[32] It seems to me that the insistence on the principle that the Courts should
decide the pleaded issues is to allow the parties to prepare for the case and to know
the case they are called upon to answer. To me, a departure from these well
entrenched and
established fundamental principles of law would amount to a failure of justice
and the rule of law – and in turn, directly infringe upon the rights of access to justice
contemplated in Section 34 of the Constitution of the Republic of South Africa. The
parties did not prepare their respective cases on the dispute of facts – because it
never
was an issue on the pleadings. Worse, during argument the Regional Magistrate did
not raise the issue at all. The Court created an issue that did not exist between the
parties.
[33] Indeed, a theory of liability that emerges for the first time in the reasons for
judgment is never tested in the crucible of the adversarial process (paragraph 62
Rodaro judgment above). This buttresses and reinforces the point that before a
Court of law decides an issue, it must first hear the parties thereon. Also, that it
must
decide a pleaded issue or an issue the parties decided to place before the Court for
a decision.
[34] Fishcher v Ramahlele 2014 (4) SA 618 (SCA) is on point. In paragraphs
13,14 and 24 the Supreme Court of Appeal said :
“[13] Turning then to the nature of civil litigation in our adversarial system it is for the
parties, either in the pleadings or affidavits, which serve the function of both
pleadings and evidence, to set out and define the nature of their dispute and it is for
the court to adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human rights guaranteed by our
Constitution, for ‘it is impermissible for a party to rely on a constitutional complaint
that was not pleaded’.
There are cases where the parties may expand those issues by the way in which
they conduct the proceedings. There may also be instances where the court may
mero motu raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case. That is subject to the proviso that no
prejudice will be caused to any party by its being decided. Beyond that it is for the
parties to identify the dispute and for the court to determine that dispute and that
dispute alone.
[14] It is not for the court to raise new issues not traversed in the pleadings or affidavits,
however interesting or important they may seem to it, and to insist that the parties
deal with them. The parties may have their own reasons for not raising those
issues. A court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties. However, it is then for the
parties to determine whether they wish to adopt the new point. They may choose
not to do so because of its implications for the further conduct of the proceedings,
such as an adjournment or the need to amend pleadings or call additional
evidence. They may feel that their
evidence. They may feel that their
case is sufficiently strong as it stands to require no supplementation. They may
simply wish the issues already identified to be determined because they are
relevant to future matters and the relationship between the parties. That is for them
to decide and not the court. If they wish to stand by the issues they have
formulated, the court may not raise new ones or compel them to deal with matters
other than those they have formulated in the pleadings or affidavits.
[24] For all those reasons the course adopted in the court below was impermissible. It
should simply have heard the evidence tendered by the parties and determined the
true facts. Had it done so there was no dispute between the parties as to the legal
position and appropriate relief could have been ordered depending upon the court’s
factual findings. That would also have meant that the learned judge would not have
fallen into the trap, as he did, of making factual findings adverse to the City on the
affidavits as he did, in the alternative, by finding, contrary to the City’s evidence,
that the demolished structures were in fact the homes of the counter applicants. He
would
also not have had to concern himself with the operation of the Plascon -Evans rule,
which he appears to have misconstrued in thinking that it operated against the City,
which overlooked that in relation to the counter application the City was the
respondent and entitled to the benefit of the rule.
[35] The judgment quoted above is the epitome of what happened in this case in
the Court below . The dispute of fact did not arise from the pleadings or argument,
nor did the Regional Magistrate afford the parties an opportunity to make
submissions on the issue the Court believed was dispositive of the Appellant’s case
or claim. That cannot be fair to the parties. This clearly came as an ambush to the
Appellant.
[36] Before this Court it was common cause between the parties that none of the
parties had raised the question of dispute of facts either in argument or in the Court
papers. As the Appellant puts it in paragraph 11 of his heads of argument:
papers. As the Appellant puts it in paragraph 11 of his heads of argument:
“The issue of dispute of fact appeared for the first time in the judgment. The issue was not
the first Respondent’s case, and the Court never sought address by the parties”.
[37] Indeed during argument Mr Mlindazwe who appeared for the Appellant
persisted with the line of argument quoted above without any contestation from Mr
Mazibuko who appeared for the Respondent. The Court papers support Mr
Mlindazwe’s argument and contention in this regard.
[38] As said above, there is another subsidiary issue. The rule relating to whether
a matter deserves to be referred to oral evidence / trial or not does not seem to have
received proper interpretation and application.
[39] It appears in paragraph 32 of the judgment of the Court below that it
does not characterise the perceived disputes as either farfetched or not
genuine.
However, the Court dismissed the application and, in that way did not properly apply
or engage with the relevant rule.
[40] Though this was in the context of review proceedings, what the Constitutional
Court said in the matter of Mamadi and Another v Premier of Limpopo Province
and Others 2024 (1) SA 1 (CC) is apposite in this matter. It said the following
regarding the Court’s approach when disputes of facts arise :
“[45] It bears emphasis, however, that litigants cannot permissibly apply for referral to oral
evidence or trial “where the affidavits themselves, even if accepted, do not make out
a clear case, but leave the case ambiguous, uncertain or fail to make out a cause of
action”. In that event, the application should of course fail without recourse to
Plascon-Evans or oral evidence. But where a case is properly made out, the
disputes of fact are genuine, far -reaching and fundamental and cannot be
resolved by ap plication of Plascon -Evans, the proper course in rule 53
proceedings is, in general, referral to oral evidence or trial. Dismissal without
rendering a decision in these circumstances is inappropriate. Both rule 53 and
the PAJA Rules render review by way of motion the default position. Determining a
review application without making a final decision frustrates the purpose of
expeditiously addressing unlawful administrative action. Put differently, where a
review application is dismissed without rendering a final decision – so as to compel a
litigant to proceed by way of action – this purpose is frustrated”.
[41] In paragraph 44 of the judgment, Justice Theron profoundly said :
“…provided the dispute of fact which emerges is genuine and far -reaching and the
probabilities are sufficiently evenly balanced, referral to oral evidence or trial, as the
case may be, will generally be appropriate”.
[42] The attitude I take is that the Court below did not appear to hold the view that
what it perceived to be a dispute of fact was not a genuine dispute. I believe that the
proposition expounded in the Mamadi judgment in paragraph 24 is relevant. There,
in relevant parts, the Constitutional Court said:
“Third, if the High Court misconceived its discretionary powers in terms of rule 6 (5)(g)
and were to refuse leave we would be forcing the Applicant to institute proceedings
afresh on the basis of High Court’s mistake of law”.
[43] The point I am making is this: apart from the fact that the Court raised the
dispute of fact mero mutu, it equally did not properly apply the provisions of the rule
to the extent that its conclusion was not that the dispute was not a genuine one.
Indeed, the Court has wide powers under the rule especially if the dispute is
genuine. The Court does not appear to have appreciated this.
[44] It is not my finding that a Court is precluded from raising and engaging with
the parties on the question of dispute of facts. My finding is that it is inappropriate for
the Court to raise the issue of the disputes of fact and decide on it without first
affording the litigants an opportunity to be heard on that exact point.
[45] It seems to me that a case that is not hopeless or that is genuine cannot
simply be dismissed in circumstances where the Court invokes the provisions of rule
55
(1) (k)(i). The rule gives the Court a wide discretion. The Court below did not
appreciate the import and the meaning of rule 55 (1)(k)(i). Properly interpreted and in
the context of section 34 of the Constitution, the rule should be construed to
encourage access to justice than stifling it.
[46] It seems to me that the appropriate order is to remit this matter to the
Regional Court for a hearing afresh before a different Regional Magistrate. The
manner in which the Regional Magistrate dealt with the matter violated the
Appellant’s rights enshrined in the Constitution, specifically section 34 thereof.
[47] In this Court, the Respondent’s heads of argument were filed on 16 February
2026. The Respondent effectively gave the Appellant and the Court only three days
within which to consider its heads of argument. This is another ambush the Appellant
had to endure. Once again, no application for condonation for the late filing of the
heads of argument was filed. Such conduct needs to be discouraged, especially in
the appeal Court. I cannot ignore the fact that the Respondent litigates against the
Estate. The Respondent ought to act responsible in those circumstances.
Costs
[48] The Appellant has been successful. A successful party is entitled to its costs.
In the circumstances of this case, I have no reason to depart from that general
principle. The issues engaged are not complex. Few legal authorities needed to be
consulted.
The record is not copious. Scale A in terms rule 67 A of the rules of this Court is
appropriate.
Order
[49] Accordingly, the following order is made:
[49.1] The appeal is upheld with costs.
[49.2] The judgment and order of the Regional Magistrate Court dated 6
September 2024 is hereby set aside.
[49.3] The costs associated with the hearing in the Court a quo are costs in
the cause.
[49.4] The matter is remitted to the Mthatha Regional Court for hearing
afresh before a different Regional Magistrate.
_______________________
V. KUNJU
ACTING JUDGE OF THE HIGH COURT
I agree
______________________
V. P. NONCEMBU
JUDGE OF THE HIGH COURT
APPEARANCES:
For the Appellant : Mr M.V Mlindazwe
Instructed by : Mlindazwe & Associates
Mthatha
For the Respondent : Mr B. Mazibuko
Instructed by : Malatjie & Co. Attorneys
Sandton
Heard : 20 February 2026
Delivered : 14 May 2026