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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION: PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
10 September 2026 ..................................
DATE SIGNATURE
Case number: 2025-039060
In the matter between:
THE MEC FOR HEALTH: GAUTENG PROVINCE First Applicant
TEMBISA HOSPITAL Second Applicant
and
KGABO FRANCINA MOFUTSANA First Respondent
MAGISTRATE P SINGH Second Respondent
GOVERNMENT EMPLOYEES PENSION FUND Third Respondent
THE MINISTER OF THE DEPARTMENT OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT Fourth Respondent
JUDGMENT
______________________________________________________________
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MINNAAR AJ
Introduction:
[1] On 4 December 2024, in the Regional Court f or the Regional Division
of Tshwane, held at Tshwane Central, the first respondent obtained a
default judgment. The second respondent granted the order. In terms
of the order, the Member of the Executive Committee for Health (“the
MEC”), as third defendant, was ordered to pay to the first respondent
the amount of R230 987.13 and R150 000.00, together with interest
and costs (“the order”).
[2] The applicants seek to review and set aside the order in terms of Rule
53 of the Uniform Rules of Court on the basis that the order was
granted in breach of procedural safeguards, outside the Magistrate’s
Court jurisdiction, and in disregard of statutory remedies prescribed by
the Pension Funds Act 24 of 1965 (“PFA”) and the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”).
[3] The first respondent opposes the application. In essence, it is the first
respondent’s case that the applicants ought to have brought an
application for rescission of the order and that a review is not
applicable as her cause of action was premised on negligence , and not
on the statutory provisions encapsulated by the PFA.
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[4] The second and third respondents filed a notice to abide by this Court's
decision. A Rule 53 record was filed.
Cause of action in support of the order:
[5] The first respondent pleaded that she married the late Joel Mofutsana
(“the deceased”) in community of property on 21 December 20 11. The
deceased was employed at the Tembisa Hospital and held a pension
fund (“the pension fund”) with the Government Employees Pension
Fund (“GEPF”). According to the first respondent, as the deceased's
spouse in community of property , she is entitled to 50% of the pension
fund. The first respondent estimated her share to be R230 987.13 and
R150 000.00, which is a child’s share or whichever is greater thereof,
since the deceased died intestate.
[6] Despite having submitted a pension fund claim, the first respondent’s
portion of the pension fund was not paid to her. Instead, it was paid to
the deceased's children. According to the first respondent’s pleaded
case, this payment resulted from negligence by the GEPF, Tembisa
Hospital (where the deceased was employed), and the MEC.
[7] The first respondent caused summons to be issued against:
a. The Government Employees Pension Fund as the first
defendant.
b. Tembisa Hospital as the second defendant.
c. The MEC as the third defendant.
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d. The Department of Health as the fourth defendant.
e. The deceased’s children as the fifth , sixth and seventh
defendants.
[8] The first respondent sought judgment against the first, third, fifth, sixth,
seventh and eighth defendants jointly and severally for payment of
R230 987.13 and R150 000.00. The court granted default judgment
only against the MEC, as the third defendant.
Discussion:
[9] It is common cause that the third respondent administered the pension
fund.
[10] In the particulars of claim, the first respondent pleaded that,
after submitting her pension fund claim to the Human Resources
Department at Tembisa Hospital on 12 October 2016, she attended the
third respondent's offices on 12 April 2017 to enquire about the
progress of her claim. She was advised that the deceased’s children
received payment of the pension fund from the third respondent on 28
March 2017.
[11] In terms of section 2(1) of the PFA, the PFA finds application
herein as it applies to the pension fund.
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[12] Section 37C of the PFA deals with the d isposition of pension
benefits upon the death of a member.
[13] Section 30A of the PFA deals with submissions and complaints .
It prescribes a mandatory internal remedy : a complainant must first
lodge a written complaint with the fund and, if dissatisfied, escalate it to
the Pension Funds Adjudicator (“the Adjudicator”).1
[14] Section 30E of the PFA provides for the procedure to be
followed by the Adjudicator. Section 30M provides for the Adjudicator's
determination, and section 30O clo thes the Adjudicator's determination
with the same power as a civil judgment of any court of law.
[15] Section 30P of the PFA provides that any party who feels
aggrieved by a determination of the Adjudicator may, within six weeks
after the date of the determination, apply to the division of the High
Court which has jurisdiction, for relief, and shall at the same time give
written notice of his or her intention so to apply to the other parties to
the complaint.
[16] In Grey’s Marine Hout Bay (Pty) L td v Minister of Public Works
2005 (6) SA 313 (SCA) at paragraph 21, Nugent JA provided the
1 “30A Submission and consideration of complaints
(1) Notwithstanding the rules of any fund, a complainant may lodge a written complaint with a fund for
consideration by the board of the fund.
(2) A complaint so lodged shall be properly considered and replied to in writing by the fund or the
employer who participates in a fund within 30 days after the receipt thereof.
(3) If the complainant is not satisfied with the reply contemplated in subsection (2), or if the fund or the
employer who participates in a fund fails to reply within 30 days after the receipt of the complaint the
complainant may lodge the complaint with the Adjudicator.
(4) … ”
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following consolidated and abbreviated form of the definition of
administrative action, which action sufficed to convey its principal
elements:
'Administrative action means any decision of an administrative nature
made
. . . under an empowering provision [and] taken . . . by an organ of
State, when exercising a powe r in terms of the Constitution or a
provincial constitution, or exercising a public power or performing a
public function in terms of any legislation, or [taken by] a natural or
juristic person, other than an organ of State, when exercising a public
power or performing a public function in terms of an empowering
provision, which adversely affects the rights of any person and which
has a direct, external legal effect. . . .'
[17] The allocation of pension fund benefits constitutes
administrative action under PAJA.
[18] In terms of section 30A of the PFA, there was thus an obligation
on the first respondent, once she was made aware of the disposition of
the pension fund to the deceased’s children, to lodge a written
complaint with the third respondent and, should she still be dissatisfied,
to escalate her complaint to the Pension Funds Adjudicator. She first
had to exhaust the internal remedies provided by the PFA. 2 If she
remained dissatisfied, she had to approach the High Court for relief.
2 Nichol and Another v Registrar of Pension Funds and Others 2008 (1) SA 383 (SCA) at para 15
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This she had not done. Instead, she elected to claim what she deemed
her entitlement to the pension fund through an action premised on the
alleged negligence of the first, second and third defendants.
[19] It was not for the second respondent, under the guise of
negligence, to determine the disposition of the deceased’s pension
funds. The second respondent was not clothed with the jurisdiction to
adjudicate on this aspect. The second respondent acted ultra vires the
provisions of the PFA and PAJA, and the order should not have been
granted. Accordingly, the order must be set aside.
[20] There is no basis to deviate from the normal approach that costs
should follow the outcome. On the complexity of the application, costs
are to be taxed on Scale B.
Order:
Consequently, I make the following order:
[1] The order granted by the second respondent on 4 December 2024
against the first applicant is reviewed, set aside, and declared null and
void.
[2] The first respondent is to pay the costs of the application, to be taxed
on Scale B.
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_____________________
Minnaar AJ
Acting Judge of the High Court
Gauteng Division, Pretoria
For the applicants: Adv M Lekwape
Instructed by The State Attorney
For the first respondent: Mr K M Mabale
Instructed by K M Mabale and Associates Inc.
Heard on: 14 May 2026
Date of judgment: 10 September 2026