Moephuli v Government Employees Pension Fund and Another (14405/2016) [2017] ZAGPPHC 505 (21 August 2017)
- Citation
- [2017] ZAGPPHC 505
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- North Gauteng High Court, Pretoria
- Panel
- Millar
- Case number
- 14405/2016
More details
- Court
- North Gauteng High Court, Pretoria
- Panel
- Millar
- Case number
- 14405/2016
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the first respondent acted negligently and recklessly by enforcing a second divorce order that was void and conflicted with the original order regarding the applicant's pension fund interest. The first respondent failed in its duty of care to the applicant by not clarifying which order was valid before making payment to the second respondent. The applicant suffered financial loss as a direct result of the first respondent's conduct. The court ordered the first respondent to amend its records to reflect only the original order, repay the amount paid out under the void order with interest, and pay the costs of the application.
Court disposition
Application granted in favour of the applicant.
Orders
- The first respondent is ordered to amend its records to reflect that the order of the Court at Mmabatho under reference NW/MMB/RC/546/2013 is the only order governing the applicant's pension fund interest.
- The first respondent is ordered to replace and repay the sum of R229,338.93 together with interest accrued from 9 December 2015 to date of payment, both days inclusive.
- The first respondent is ordered to implement the order within 15 days of service of a copy of this order and confirm in writing to the applicant's attorneys once done.
- The first respondent is ordered to pay the costs of the application.
02
Material facts
Parties
Mor Moephuli
ApplicantGovernment Employees Pension Fund
RespondentTPS Tindisa
RespondentAmounts and remedies
- Amount to Be Repaid: ZAR 229,338.93
03
Procedural history
Posture
Review Application / Judgment
04
Questions and positions
Legal issues
- 01
Whether the first respondent was entitled to act on a second divorce order that conflicted with the original order regarding the applicant's pension fund interest.
- 02
Whether the first respondent owed a duty of care to the applicant in administering her pension fund.
- 03
Whether the applicant is entitled to repayment of the amount paid out to the second respondent under the void order.
Party arguments
- Applicant
- The applicant argued that the first respondent should have recognized only the original divorce order from the Mmabatho court, which clearly stated each party would retain their own pension fund interest. She contended that the second divorce order, obtained in a different province and without reference to the first, was void and should not have been enforced. The applicant maintained that the first respondent acted negligently and recklessly by paying out half her pension fund to the second respondent, causing her financial loss.
- Respondent
- The first respondent argued that it was obliged to comply with any valid court order and that the second order, being the most recent, was binding. It claimed it was under the impression that the second order was a variation or correction of the first. The first respondent asserted that it was not required to consider correspondence from the applicant or her attorneys and denied any negligence in its conduct.
05
Court’s reasoning
Legal principles
- 01
THE MASTER OF THE HIGH COURT (NORTH GAUTENG HIGH COURT, PRETORIA) v Motala NO and Others 2012 (3) SA 325 (SCA)
A void court order cannot be enforced, and any action taken pursuant to such an order is legally ineffective.
- 02
Common law duty of care; Founding affidavit paragraph 4.7 page 8
A pension fund administrator owes a duty of care to its members to ensure that payments are made only in accordance with valid and enforceable court orders.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the first respondent acted negligently and recklessly by enforcing a second divorce order that was void and conflicted with the original order regarding the applicant's pension fund interest. The first respondent failed in its duty of care to the applicant by not clarifying which order was valid before making payment to the second respondent. The applicant suffered financial loss as a direct result of the first respondent's conduct. The court ordered the first respondent to amend its records to reflect only the original order, repay the amount paid out under the void order with interest, and pay the costs of the application.
Obiter and limits
- The first respondent's disregard for the applicant's correspondence and its failure to seek clarification before acting was reckless and negligent.
- A punitive costs order was not warranted in the circumstances, despite the first respondent's conduct.
Court disposition
Application granted in favour of the applicant.
- The first respondent is ordered to amend its records to reflect that the order of the Court at Mmabatho under reference NW/MMB/RC/546/2013 is the only order governing the applicant's pension fund interest.
- The first respondent is ordered to replace and repay the sum of R229,338.93 together with interest accrued from 9 December 2015 to date of payment, both days inclusive.
- The first respondent is ordered to implement the order within 15 days of service of a copy of this order and confirm in writing to the applicant's attorneys once done.
- The first respondent is ordered to pay the costs of the application.
Source and reliance status
North Gauteng High Court, Pretoria
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
North Gauteng High Court, Pretoria
Judgment
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA DIVISION)
Case No. 14405/2016
Date: 21/8/2017
In the matter between:
MOR
MOEPHULI APPLICANT
and
GOVERNMENT EMPLOYEES PENSION FUND 1st
RESPONDENT
TPS TINDISA 2nd
RESPONDENT
JUDGMENT
MILLAR,AJ
1. This is an application in which the applicant seeks an order that the first respondent reinstate her interest in the pension fund of which she is a member, the second respondent as at 7 December 2015.
2. The applicant sued the second respondent, her former husband for inter alia a decree of divorce in the regional court for the division of the north west held at Mmabatho. The summons was served by substituted service pursuant to a court order and thereafter an order of divorce granted on 5 November 2014.
3. The order read:
a. "THAT the bonds of marriage subsisting between the PLAINTIFF and the DEFENDANT be and are hereby dissolved. An order for the division of the joint estate that each party to remain with his/her pension fund" (Annexure ''X1" page 14).
4. The applicant states that, she then on no less than 7 occasions, prior to 7 December 2015, attended at the offices of the first respondent in order to ensure that the terms of the order were properly recorded. She did this so she stated because "This was important to me as my pension interest held with the 1st Respondent is my single biggest asset and the purpose thereof is to ensure my wellbeing upon retirement." [1]
5. This is not disputed by the first respondent who admitted, it had received the court order of 5 November 2014 and had updated its records accordingly.
6. Without the applicant being informed until September 2015, it transpired that the second respondent had in the meantime and on 3 July 2015 obtained a second order for divorce in the Regional Division of Gauteng Pretoria. This second order was substantially the same as the first order save that it provided very specifically for the payment by the first respondent of half of the applicant's
pension fund interest to the second respondent.
7. Upon the applicant becoming aware of the second order, her legal representatives wrote to the second respondent's legal representatives on 9 October 2015 and brought to their attention that the second order was void.[2] They also wrote to the first respondent[3]
8. It is admitted by the first respondent that it received the letter. Notwithstanding this, the first respondent took the view that the second court order was valid and binding on it and that it had to comply which it duly did.
9. The first respondent contends that it was entitled to ignore the letter that had been sent to it and was only obliged to have regard to the court order. This argument seems to me to be specious.
10. If it was obliged to have followed a court order and could ignore the letter, then no satisfactory explanation was given as to why it chose the second court order over the first. The first respondent asserts that it was under the genuine impression that it was a variation of or attempt to correct the first order, is not borne out by the papers filed by the first respondent. Furthermore, it is apparent from the orders themselves that they were granted in different courts in different provinces and that the second order made no mention whatsoever of the first.
11. The fact that the second order was void is a matter of law.[4]
12 . The first order was in its terms as clear an unequivocal as the first as to what had been ordered in respect of the pension fund. There is no cogent explanation from the first respondent as to why it chose the second order over the first. Even if the first respondent had believed both to be valid and binding, for the reasons set out below, it ought not to have made any payment to the second respondent until the dispute relating to the two different court orders had been resolved.
13. The attempt to lay the cause of its incorrect payment to the second respondent at the door of the applicant is misplaced.
14. At the very least, the first respondent should have declined to make any payment until such time as there had been a clarification as to which order was to be enforced.
15. The first respondent has a duty of care to its members for the very reasons advanced by the applicant[5] and must have been aware that if payments were incorrectly made from a particular members pension fund credit, this would cause damages to not only the member concerned - the applicant, but to the general membership at large. The first respondent's control of the pension fund places this duty upon it.
16. It is surprising that notwithstanding the attention of the first respondent having been brought to the matter, that it ignored the applicant and proceeded nonetheless. It did so recklessly and negligently in my view.
17. That the applicant has suffered the damages claimed as a result of the conduct of the first respondent is clear.
18. The applicant sought a punitive costs order in the matter. Having considered the matter, I am of the view that a punitive costs order is not warranted in the circumstances.
19. In the circumstances, I make the following order:
19.1 The first respondent is ordered to amend its records to reflect that the order of the Court at Mmabatho under reference NW/MMB/RC/546/2013 as being the only order governing the applicant's pension fund interest.
19.2 The first respondent is ordered to replace and/repay the sum of R229 338,93 together with such interest as may have accrued thereon from 9 December 2015 to date of payment, both days inclusive.
19.3 The first respondent is ordered to implement the order referred to in
paragraph 1 above within 15 days of service of a copy of this order upon it and to confirm in writing to the applicant's attorneys once it has done so.
19.4 The first respondent is ordered to pay the costs of the application.
______
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
[1] Founding affidavit paragraph 4.7 page 8
[2] Annexure "X4" page 16
[3] Annexure "XS" page 18.
[4] see THE MASTER OF THE HIGH COURT (NORTH GAUTENG HIGH COURT,PRETORIA) v Motala NO and Others 2012 (3) SA 325 (SCA).
[5] Founding affidavit paragraph 4.7 page 8
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