About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2012
>>
[2012] ZACC 5
|
|
Wiese v Government Employees Pension Fund and Others (CCT 111/11) [2012] ZACC 5; 2012 (6) BCLR 599 (CC) (30 March 2012)
Links to summary
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 111/11
[2012] ZACC 5
In the matter between:
MATHILDA LOUISA WIESE
….................................................................
Applicant
and
GOVERNMENT EMPLOYEES PENSION FUND
….......................
First
Respondent
MINISTER OF FINANCE
…........................................................
Second
Respondent
PENSION FUND ADJUDICATOR
….............................................
Third
Respondent
CORNELIUS JOHANNES MARX
…............................................
Fourth
Respondent
Decided on : 30 March 2012
JUDGMENT
NKABINDE J (Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Maya AJ, Skweyiya J, van der Westhuizen J, and
Zondo AJ
concurring):
Introduction
This
case highlights the plight previously experienced by people married
in community of property and whose spouses were, upon
divorce,
members of the Government Employees Pension Fund (Government Pension
Fund) established under the Government Employees
Pension Law
1
(GEPL). Before this Court is an application for confirmation of a
declaration of constitutional invalidity of certain provisions
in
the GEPL,
2
granted by the Western Cape High Court, Cape Town
3
(High Court), and an appeal
4
against certain parts of the order.
5
Under
the matrimonial laws, non-member spouses could, in certain
circumstances, be entitled to payment of part of the pension
interest due or assigned to the member of the Government Pension
Fund when any pension benefit accrued to that member. Prior
to the
Government Employees Pension Law Amendment Act
6
(GEPL Amendment Act), the non-member’s benefit would be frozen
on divorce until any pension benefit accrued to that member,
unlike
that of a counterpart under the Pension Funds Act
7
(PFA). The effect of this was that non-members could not benefit
from any interest or capital growth on the portion of the pension
interest allocated to the member spouse – thus resulting in
the portion devaluing over time.
Invoking
the equality provision in the Constitution,
8
the GEPL was originally challenged by the applicant on the ground
that it did not afford to a former spouse of a member of the
Government Pension Fund the same rights and advantages that are
afforded to former spouses of members of funds subject to the
PFA.
The applicant also sought a constitutional remedy of reading in
9
certain provisions of the PFA
10
into the GEPL together with an order for costs. Only the first and
second respondents opposed the application. They, however,
conceded
that the impugned law would not pass constitutional muster because
it infringes the applicant’s equality right,
but disputed the
appropriateness of the relief sought consequent upon a finding of
constitutional invalidity.
Legislative
history
There are two
parallel regimes of pension funds at play: first, those private
funds governed by the PFA and second, government
funds which are not
governed by the PFA but, rather, by a statute unique to that fund.
This latter class of government funds
includes, but is in no way
limited to, the Government Pension Fund.
During
1989, section 7(7)(a) was added by
the Divorce Amendment Act
11
to deal with certain problems.
Under the
Divorce Act
12
non-member spouses were, in certain circumstances, entitled to
payment of part of the pension interest due, or assigned to, the
member of the Government Pension Fund when any pension benefit
accrued to that member. A
pension interest which
had not yet accrued was not considered an asset in the spouse’s
estate.
13
To cure this defect, the amendment provided that
a pension interest is deemed to be an asset in the estate for the
purpose of
determining patrimonial benefits.
The
Divorce Amendment Act
was, however, not
without difficulties. One was the question of when the payment of a
pension interest should occur. Generally,
this depended on the rules
of a specific fund but usually took place on retirement, dismissal
or some other defined “exit
event”.
14
The problem was that a non-member spouse would be
severely prejudiced if the value of his or her benefit was frozen at
the date
of divorce and the beneficiary would have had to wait for a
later exit event.
15
To
cure this defect, various amendments were made to the PFA, in
particular, the Pension Funds Amendment Act,
16
which incorporated the “clean-break”
principle into section 37D of the PFA.
17
The effect of this amendment is that the
non-member spouse no longer has to wait for an exit event to occur.
This means that a
pension benefit awarded to a non-member spouse in
terms of the Divorce Act is deemed to have accrued on the date of
the divorce.
This demonstrates the interplay between the Divorce Act
and the PFA.
The
oversight, however, is plainly that these amendments only apply to
the PFA and, by extension, to funds that are governed by
the PFA. As
mentioned above, this is only one leg of the parallel regime. The
Government Pension Fund could not benefit from
the clean-break
principle, as it is governed by its own statute, the GEPL.
In
its amended form, section 3 of the GEPL Amendment Act introduces a
clean-break principle by incorporating section 24A after
section 24
of the GEPL. Section 24A is, in effect, similar to section 37D of
the PFA.
18
Section 24A authorises the Government Pension Fund to make payment
of a pension interest upon divorce or dissolution of a customary
marriage. It provides, in the relevant part:
“
24A(1) The Board shall
direct the Fund to reduce a member’s pension interest by any
amount assigned from the member’s
pension interest to the
member’s former spouse in terms of a decree of divorce granted
under section 7(8)(a) of the Divorce
Act, 1979 (Act No. 70 of 1979),
or a decree for the dissolution of a customary marriage.
(2)(a) Subject to paragraph (j), for purposes of
section 7(8)(a) of the Divorce Act, 1979 (Act No. 70 of 1979), the
portion of a
member’s pension interest assigned to the member’s
former spouse in terms of a decree of divorce or a decree for the
dissolution of a customary marriage is deemed to accrue to the member
on the date on which the decree of divorce or the decree
for the
dissolution of a customary marriage is granted.
. . .
(j) Any portion of a member’s
pension interest assigned to a former spouse in terms of a decree of
divorce or a decree for
the dissolution of a customary marriage
granted prior to the enactment of this subsection shall, for purposes
of any law other
than the Income Tax Act, 1962 (Act No. 58 of 1962),
including, but not limited to, section 7(8)(a)
of
the Divorce Act, 1979 (Act No. 70 of 1979)
, be
deemed to have accrued to the member on the date of enactment of this
subsection, and must be paid or transferred in accordance
with
paragraphs (a) to (i).”
Parties
The
applicant, Ms Wiese, was married in community of property to the
fourth respondent, a member of the Government Pension Fund.
The
first and fourth respondents are cited because of their interest in
the relief sought in the High Court.
19
The second respondent, the Minister of Finance (Minister), is cited
as the member of the national executive responsible for the
administration of the Government Pension Fund. Both the Government
Pension Fund and the Minister are, where appropriate, collectively
referred to as the respondents. The third respondent is the Pension
Fund Adjudicator.
Factual
background
The
marriage bond between the applicant and the fourth respondent was
terminated by a decree of divorce granted during 2008. They
entered
into a settlement agreement which formed part of the decree of
divorce. In terms of this agreement, the applicant was
awarded a 25%
share of the fourth respondent’s pension interest existing in
the Government Pension Fund. She could not,
however, realise her
share of the pension interest because relevant provisions of the
GEPL, unlike the PFA, allowed for the realisation
of the interest
only upon the occurrence of an exit event.
20
None of these events had occurred in relation to
the applicant.
Because
of financial difficulties, the applicant, albeit unsuccessfully,
sought to realise her share of the pension interest.
She also
unsuccessfully sought help from various institutions, government
ministers, and officials.
The
applicant then launched proceedings in the High Court for an order
declaring the GEPL inconsistent with section 9(1) of the
Constitution
21
and invalid to the extent that it does not afford
to a former spouse of a member of the Government Pension Fund (i.e.
a person
in the position of the applicant), the same rights and
advantages as are afforded to former spouses of members of funds
subject
to the PFA. She further sought an order reading in those
provisions of the PFA, which allow for the immediate realisation of
pension benefits awarded on divorce to the non-member spouses of
members of private pension funds.
The
High Court granted a declaratory order on the basis that the
differentiation between a non-member spouse of a PFA fund member
and
a non-member spouse of the Government Pension Fund member arose out
of the legislature’s failure to apply the clean-break
principle upon divorce to a particular class of people. The Court
rejected the applicant’s argument that reading-in was
the
appropriate remedy. It suspended the declaration of invalidity to
allow Parliament to remedy the defect.
22
The
order of constitutional invalidity was referred to this Court for
confirmation
23
and the applicant noted an appeal
24
against part of the remedy. The confirmation proceedings and appeal
were set down for hearing on 28 February 2012, in terms of
the
directions issued by the Chief Justice on 21 November 2011.
On 14
December 2011, while the confirmatory and appeal proceedings were
pending, Parliament passed the GEPL Amendment Act to cure
the
defects in the GEPL. As a result of this legislative intervention, a
question arose whether any live constitutional issue
requiring
determination by this Court was extant. In this regard, further
directions dated 12 January 2012 were issued, requiring
the parties
to lodge written submissions on mootness.
Submissions
in this Court
The
applicant submits that the GEPL Amendment Act disposes of the need
for the substantive relief she seeks. She argues, however,
that this
Court might still determine the merits in another matter on a
similar issue which was set down for hearing together
with this
matter.
25
The
applicant contends that she would have been successful in her
appeal, or at the very least, in obtaining an order of confirmation
of the declaration of invalidity. She argues that the appropriate
order in the circumstances would be to strike the matter from
the
roll and require the respondents to pay her costs to the date of the
order. Alternatively, she contends that the Minister
alone should
pay her costs to the date of the order. She asks this Court to
uphold the High Court costs order since there is
no appeal against
it.
The
respondents submit that the relief sought by the applicant is
catered for by the clean-break principle. They contend that
any
determination of the substantive issues raised would have no
practical effect.
In relation to the application
for leave to appeal, the Minister sets out detailed arguments on the
policy considerations that
would be necessary for this Court to
determine the merits. The Minister submits that the applicant was
well aware of the steps
that were taken by the legislature to remedy
the defect in the GEPL but nonetheless lodged an appeal. For these
reasons, he submits
that the applicant must bear her own costs for
the appeal.
In
light of the submissions regarding mootness, the Chief Justice
issued further directions, dated 25 January 2012, requiring
the
parties to lodge written submissions on costs. Apart from these
submissions, the balance of the relief regarding costs on
appeal
remains unresolved. Notwithstanding this, two weeks before the
hearing date, the respondents urged this Court to decide
the issue
of costs on the papers.
26
Mootness
Both
the applicant and respondents suggest that the GEPL Amendment Act
caters for the applicant and other former spouses of Government
Pension Fund members, and that passing judgment upon the substantive
issues in the confirmation proceedings and the appeal would
have no
practical effect. The question then arose whether this Court should
nevertheless consider whether the issue has been
rendered moot.
It is
well-settled that a case is moot and not justiciable if it no longer
presents a live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law.
27
However, as this Court has repeatedly held, the absence of a live
controversy does not constitute an absolute bar to a matter’s
justifiability because this Court has a discretion whether to
consider it.
28
The test is one of the interests of justice.
29
The discretion hinges upon whether any order a court makes will have
a practical effect either on the parties or on others, even
if the
matter may be moot as between the parties.
30
Having
considered the provisions of the GEPL, before and after its
amendment and in relation to the relief sought by the applicant
in
the High Court,
31
there can be no doubt that the substantive cause of the complaint by
the applicant has been removed by that legislative intervention.
The
resolution of the validity of the GEPL and the appeal after that
intervention will therefore have no practical effect on
the parties.
The substantive issues between the parties have thus become moot.
Accordingly,
it is not in the interests of justice to pronounce on the validity
of the GEPL or the appropriate constitutional
remedy on appeal. What
remains for determination is the issue of costs on appeal.
Costs
This
Court’s jurisdiction is limited by section 167(3)(b) of the
Constitution to deciding “constitutional matters,
and issues
connected with decisions on constitutional matters.”
32
There can be no doubt that a question relating to costs in this case
is connected with decisions on constitutional matters.
33
The primary consideration of an award of costs in constitutional
litigation is whether the costs order may hinder or promote
the
advancement of constitutional justice.
34
The
applicant is a private litigant who has enjoyed a measure of success
in the High Court. She had to approach the High Court
to assert her
right after unsuccessfully entreating the government to intervene.
She successfully vindicated her constitutional
right to equality and
equal protection of the law, when she challenged the validity of the
GEPL. This law, as mentioned earlier,
deprived her of the capital
growth on the portion of the pension interest allocated to the
non-member spouse on divorce.
The
contention that the
applicant was well-aware of
the steps that were taken by the legislature to remedy the defect in
the GEPL before lodging the constitutional
challenge, is neither
here nor there. That is so because that challenge was launched on 11
September 2009, long before the National
Treasury’s February
2011 policy document,
35
which indicated that the recommendations of the
South African Law Reform Commission
(SALRC)
on the clean-break principle were being considered. In any event,
these alleged steps did not guarantee the applicant
the relief
sought in the High Court.
The
Minister had a duty to ensure that any provision of the impugned
legislation that was inconsistent with the Constitution was
suitably
amended without delay.
36
Had he done so, particularly after the recommendation of the SALRC,
the applicant might not have approached the High Court to
vindicate
her right. She was also entitled to appeal against that part of the
order regarding the constitutional remedy to enforce
her right and
to obtain what she considered to be an effective remedy.
In
these circumstances, the applicant is entitled to her costs since
the Minister failed to provide her with an undertaking that
a new
law would be passed, that the relief she required would become
available soon, and that there was, therefore, no need for
her to
bring court proceedings.
For
these reasons, I am satisfied that the Minister must also pay the
costs which the applicant has incurred in appealing the
High Court’s
order on remedy, which shall, where appropriate, include the costs
of two counsel.
Order
In
the event, the following order is made:
The
Minister of Finance is ordered to pay the applicant’s costs in
this Court, including the costs of two counsel.
For the Applicant: Advocate HJ de Waal and Advocate D Kusevitsky
instructed by Bornman & Hayward Inc.
For the First and Second Respondents: Advocate PJ Pretorius SC and
Advocate S Yacoob instructed by Bowman Gilfillan Inc.
1
Government
Employees Pension Law, Proclamation 21 of 1996.
2
Section
167(5) of the Constitution read with Rule 16(4) of the
Constitutional Court Rules. These provisions are set out in full
below at n 23.
3
Wiese
v Government Employees Pension Fund and Others
[2011] 4 All SA
280
(WCC) (Judgment of the High Court).
4
The
appeal was noted in terms of Rule 16(2) of the Constitutional Court
Rules. Its provisions are set out in full at n 24 below.
The noting
of appeal was, due to an administrative error, filed outside the
prescribed time. This Court issued an order on 21
November 2011
granting condonation for the late noting of appeal.
5
Below
at n 22.
6
19
of 2011.
7
24
of 1956.
8
Section
9(1) provides:
“
Everyone is equal before the
law and has the right to equal protection and benefit of the law.”
9
Ex
Parte Minister of Safety and Security and Others: In re: S v Walters
and Another
[2002] ZACC 6
;
2002 (7) BCLR 663
(CC);
2002 (4) SA
613
(CC) at fn 30.
10
Below
at n 17.
11
7
of 1989.
12
70
of 1979.
13
Old
Mutual Life Assurance Co (SA) Ltd and Another v Swemmer
2004 (5)
SA 373
(SCA) at para 17. See also South African Law Commission
Report
Project 41: Investigation into the possibility of making
provision for a divorced woman to share in the pension benefits of
her
former husband
(October 1986) Chapter 3 (Commission Report);
L van Zyl “Sharing of pension interest by spouses on divorce”
[July
1985]
De Rebus
343; and A H van Wyk
“Pensioenverwagtinge en diskresionêre bateverdeling by
egskeiding”
(1988) 51
THRHR
228
at 229-30.
14
The
“exit event” includes, but is not limited to,
resignation, termination of employment or death of the former
spouse. See generally Schedule 1 of the GEPL.
15
Commission
Report above n 13 at Chapter 3.
16
11
of 2007.
17
Section
37D (which is similar to section 24A of the GEPL, as amended)
provides, in the relevant part:
“
(1) A registered fund may—
(a) deduct any
amount due on the benefit in question by the member in accordance
with the Income Tax Act, 1962 (Act No. 58 of
1962), and any amount
due to the fund in respect of
—
(i) a loan granted to a member in terms of section
19(5); or
(ii) any amount for which the fund becomes liable under
a guarantee furnished in respect of a member for a loan granted by
some
other person to the member in terms of section 19(5), from-
(aa) the amount of the benefit to which the member or a
beneficiary becomes entitled in terms of the rules of the fund;
(bb) in the case of a transfer of the member to another
fund, the amount of the benefit which the fund is so entitled to
transfer,
if the board of the transferor fund is satisfied that it
is not otherwise reasonably possible to negotiate the repayment or
to
transfer the loan or the guarantee; or
(cc) in the case of default on the repayment of any
such loan by the member concerned in circumstances where his or her
membership
of the fund is not terminated, the amount of the benefit
which the member would have received on termination of membership on
the date of default, if such a deduction is only effected as a last
resort after the board of the fund is satisfied that no other
arrangement for the required repayment can be made;
. . .
(d) deduct from a member’s benefit or minimum
individual reserve, as the case may be—
(i) any amount assigned from such benefit or individual
reserve to a non-member spouse in terms of a decree granted under
section
7(8)(a) of the Divorce Act, 1979 (Act No. 70 of 1979);
(iA) any amount payable in terms of a maintenance order
as defined in section 1 of the Maintenance Act, 1998 (Act No. 99 of
1998);
and
(ii) employees’ tax required to be deducted or
withheld in terms of the Fourth Schedule to the Income Tax Act, 1962
(Act
No. 58 of 1962), as a result of the deduction referred to in
subparagraph (i) or (iA);
. . .
(3)(a) Any amount that may be deducted in terms of
subsection (1)(d) may only be deducted after the amount of pension
interest
available has been reduced by any loan amount or guarantee
amount referred to in subsection (1)(a), where such a loan or
guarantee
was granted prior to the granting of the court orders,
irrespective of the fact that that amount is due and payable or not:
Provided
that the aggregate of all amounts deducted in terms of this
subsection may not exceed the member’s pension interest
available
at any given time.
(b) In the event that more than one of the court orders
referred to in subsection (1)(d) provides for the deduction of
amounts
from a member’s benefit or minimum individual reserve,
as the case may be, at the same time, the court orders must be dealt
with in accordance with the following hierarchy—
(i) any maintenance order referred to in subsection
(1)(d)(iA);
(ii) any decrees of divorce or for the dissolution of a
customary marriage.
(4)(a) For purposes of section 7(8)(a) of the Divorce
Act, 1979 (Act No. 70 of 1979), the portion of the pension interest
assigned
to the non-member spouse in terms of a decree of divorce or
decree for the dissolution of a customary marriage is deemed to
accrue
to the member on the date on which the decree of divorce or
decree for the dissolution of a customary marriage is granted, and,
on the written submission of the court order by the non-member
spouse—
(i) must be deducted by—
(aa) the pension fund or pension funds named in or
identifiable from the decree;
(bb) the pension fund or pension funds to which the
pension fund referred to in item (aa) transferred the pension
interest referred
to in the decree;
(ii) must be deducted on the date on which an election
is made or, if no election is made within the period referred to in
paragraph
(b)(i), the date on which that period expires; and
(iii) must reduce the member’s accrued benefits
or minimum individual reserve at the date of the decree.
(b)
(i) The pension fund must, within 45 days of the
submission of the court order by the non-member spouse, request the
non-member
spouse to elect if the amount to be deducted must be paid
directly to him or her, or if it must be transferred to a pension
fund
on his or her behalf.
(ii) The non-member spouse must within 120 days of
being requested to make an election—
(aa) inform the pension fund of how the amount referred
to in subparagraph (i) must be dealt with; and
(bb) if he or she elects that the amount must be paid
to him or her directly, provide the pension fund with the details of
how
that payment must be effected; or
(cc) if he or she elects that the amount must be
transferred to a pension fund on his or her behalf, provide the
pension fund
with the details of that pension fund.
(iii) The pension fund must pay or transfer the amount
within 60 days of being informed of how the amount must be dealt
with in
accordance with the non-member spouse’s election.
(iv) In the event that the non-member spouse fails to
make an election or identify the pension fund to which the amount
should
be transferred within the period referred to in subparagraph
(ii), the pension fund must pay the amount directly to the
non-member
spouse within 30 days of the expiry of that period.
(v) Despite subparagraph (iv), in the event that the
pension fund cannot reasonably ascertain how the payment to the
non-member
spouse must be effected, the pension fund must retain the
amount and any fund return referred to in paragraph (c)(ii) in the
pension fund until such time as details of how that payment must be
effected is made available to the pension fund by the member,
the
non-member spouse or any other person.
(c) A non-member spouse—
(i) is not a member or beneficiary in relation to the
pension fund; and
(ii) is entitled to the accrual of fund return on the
amount referred to in paragraph (a) at fund return from the expiry
of the
period referred to in paragraph (b)(ii) until payment or
transfer thereof, but not to any other interest or growth.
(d) Any portion of the pension interest assigned to the
non-member spouse in terms of a decree of divorce or decree for the
dissolution
of a customary marriage granted prior to 13 September
2007 are for purposes of any law other than the Income Tax Act,
1962, including,
but not limited to,
section 7(8)(a)
of the
Divorce
Act, 1979
, deemed to have accrued to the member on 13 September 2007
and must be paid or transferred in accordance with paragraphs (a)
and (b).
(5) Despite paragraph (b) of the definition of “pension
interest” in
section 1(1)
of the
Divorce Act, 1979
, the total
amount of annual simple interest payable in terms of the definition
may not exceed the fund return on the pension
interest assigned to
the non-member spouse in terms of a decree granted in terms of
section 7(8)(a) of the Divorce Act, 1979.
(6) Despite paragraph (b) of the definition of “pension
interest” in
section 1(1)
of the
Divorce Act, 1979
, the
portion of the pension interest of a member of a pension
preservation fund or provident preservation fund (as defined in
the
Income Tax Act, 1962), that is assigned to a non-member spouse,
refers to the equivalent portion of the benefits to which
that
member would have been entitled to in terms of the rules of the fund
if his or her membership of the fund terminated on
the date on which
the decree was granted.”
18
Id.
19
This
is so because i
f the relief sought by the
applicant were to be granted, she would have been entitled to
payment of 50% of the remaining value
of the fourth respondent’s
pension interest as at the date of their divorce.
20
Above
n 14.
21
Above
n 8.
22
The
relevant parts of the order of the High Court read
:
“
1. It is declared that the Government Employees
Pension Law, Proclamation 21 of 1996, is inconsistent with section
9(1) of the
Constitution. . . insofar as it fails to afford to
former spouses of members of the [Government Pension Fund] the same
rights
and advantages as are afforded to former spouses of members
of funds subject to the [PFA], more particularly those contained in
section 37D(1)(d), (3) (4) and (5), and is invalid to the extent of
that inconsistency.
2. This declaration of invalidity is suspended for 12
months to allow Parliament to correct the defect.
3. Should Parliament not correct the defect within this
period, the following provisions will be read in to the Government
Employees
Pension Law with effect from the date of this order:
‘
24A The Fund may make certain deductions
The Fund may deduct from the members pension interest,
as defined in the
Divorce Act, 70 of 1979
,
any amount assigned from such interest to a former
spouse in terms of a decree granted under
s 7(8)(a)
of the
Divorce
Act, 70 of 1979
, and
employees’ tax required to be deducted or
withheld in terms of the provisions of the Income Tax Act, 1962
(Act 58 of 1962)
as a result of the deductions referred to in
sub-paragraph (a).
In the event of any loans or guarantees having been
made or granted as contemplated in the Rules of the Fund,
s
37D(3)(a)
of the
Pension Funds Act, 24 of 1956
, shall apply mutatis
mutandis.
The provisions of
s 37D(3)(d)
and
37D
(4) - (5) of the
Pension Funds Act, 24 of 1956
, shall apply mutatis mutandis in
respect of any deductions in payment to a member’s former
spouse in terms of
ss 1
; provided that any portion of pension
interest assigned in the decree of divorce or dissolution of
customary marriage granted
prior to 1 July 2011 is deemed to have
accrued on 1 July 2011.”
23
In
terms of section 167(5) of the Constitution read with Rule 16(4) of
the Constitutional Court Rules.
Section
167(5) provides:
“
The Constitutional Court
makes the final decision whether an Act of Parliament, a provincial
Act or conduct of the President is
constitutional, and must confirm
any order of invalidity made by the Supreme Court of Appeal, a High
Court, or a court of similar
status, before that order has any
force.”
Rule 16(4) provides:
“
(4) A person or organ of
state entitled to do so and desirous of applying for the
confirmation of an order in terms of section
172(2)(d) of the
Constitution shall, within 15 days of the making of such order,
lodge an application for such confirmation with
the Registrar and a
copy thereof with the Registrar of the court which made the order,
whereupon the matter shall be disposed
of in accordance with
directions given by the Chief Justice.”
24
Rule
16(2) of the Constitutional Court Rules provides:
“
A person or organ of state
entitled to do so and desirous of appealing against such an order in
terms of section 172(2)(d) of
the Constitution shall, within 15 days
of the making of such order, lodge a notice of appeal with the
Registrar and a copy thereof
with the Registrar of the court which
made the order, whereupon the matter shall be disposed of in
accordance with directions
given by the Chief Justice.”
25
Phumla
Ruth Patricia Ngewu and Another v Post Office Retirement Fund and
Others
CCT117/11. This matter has since been removed from the
roll and set down for hearing in February 2013. The applicants, Ms
Ngewu
and the Women’s Legal Centre Trust, lodged a direct
access application in terms of Rule 18 of the Rules of this Court.
The order sought included: (a) a declaration of constitutional
invalidity of the Rules of the Post Office Retirement Fund on the
basis that they are inconsistent with section 9 of the Constitution
and thus invalid, to the extent that they fail to incorporate
a rule
equivalent to that contained in section 37D(4) of the PFA; (b) a
declaration of constitutional invalidity of the PFA and
the
Divorce
Act 70 of 1979
on the basis that the statutes are inconsistent with
section 9 of the Constitution and thus invalid to the extent that
they fail
to apply a similar provision as that contained in section
37D(4) of the PFA to unregistered government pension funds; (c) a
constitutional
remedy of reading in the wording of section 37D(4) of
the PFA into the impugned Rules of the Post Office Retirement Fund;
(d)
an order authorising the Post Office Retirement Fund to deduct
50% of the fifth respondent’s pension interest calculated
as
at 13 September 2007 plus interest from that date; and (e) costs.
26
In
the light of the letters dated 15 February 2012 and 17 February 2012
from the second and first respondents, respectively, the
Chief
Justice issued directions on 22 February 2012, removing the matter
from the roll, to be dealt with in terms of Rule 13(2)
of the
Constitutional Court Rules, i.e. without oral argument.
The
15 February 2012 letter reads, in relevant part:
“
Please be advised that we
seek directions that the matter be dealt with in terms of Rule 13(2)
of the Constitutional Court Rules,
that is, without the hearing of
oral argument.”
The
17 February 2012 letter
reads
, in relevant
part:
“
The only issue that remains
to be decided is that of costs, which it is submitted can be dealt
with by way of written submissions,
if you would be inclined to
direct the parties accordingly.”
The
applicant did not respond to these directions. In her written
submissions, in response to earlier directions dated 12 January
2012, the applicant contends that the appropriate order would be to
strike the matter from the roll and order the respondents
to pay her
costs.
27
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (1) BCLR 39
(CC);
2000
(2) SA 1
(CC) (
National Coalition
) at para 21 and fn18.
28
Van
Wyk v Unitas Hospital and Another
[2007] ZACC 24
;
2008 (4) BCLR
442
(CC);
2008 (2) SA 472
(CC) (
Van Wyk
) at para 29;
Radio
Pretoria v Chairperson, Independent Communications Authority of
South Africa and Another
[2004] ZACC 24
;
2005 (3) BCLR 231
(CC);
2005 (4) SA 319
(CC) at para 22; and
National Coalition
above
n 27.
29
Van
Wyk
above n 28.
30
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (9) BCLR 883
(CC);
2001 (3) SA 925
(CC) at para 9 and
President
Ordinary Court Martial, and Others v Freedom of Expression Institute
and Others
[1999] ZACC 10
;
1999 (11) BCLR 1219
(CC);
1999 (4) SA
682
(CC) at para 16.
31
In
that Court the applicant, among other things, sought an order
“[d]eclaring that the Government Employees Pension Law,
Proclamation 21 of 1996 is inconsistent with section 9(1) of the
Constitution . . . and invalid.”
32
Section
167(3) provides, in the relevant part:
“
The Constitutional Court—
. . .
(b) may decide only constitutional matters, and issues
connected with decisions on constitutional matters”.
33
Stainbank
v SA Apartheid Museum at Freedom Park
[2011] ZACC 20
;
2011 (10)
BCLR 1058
(CC) at para 27.
34
Biowatch
Trust v Registrar, Genetic Resources and Others
[2009]
ZACC 14
;
2009 (10) BCLR 1014
(CC);
2009 (6) SA 232
(CC) at para 16.
See also
Chonco and Others v President of the Republic of
South Africa
[2010] ZACC 7
;
2010 (6) BCLR 511
(CC) at para 6.
35
Judgment
of the High Court at para 35.
36
Malachi
v Cape Dance Academy International
(Pty)
Ltd and Others
[2010] ZACC 24
;
2011
(3) BCLR 276
(CC) at para 8.