Municipal Employees' Pension Fund and Another v Mongwaketse and Others (47457/2017) [2019] ZAGPJHC 162 (4 June 2019)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTEND DIVISION, JOHANNESBURG

CASE NO: 47457/2017

In the application between:

Municipal Employees’ Pension Fund

1st Applicant

Akani Retirement Fund Administrators (Pty) Limited

2nd Applicant

and

Dineo Innolentia Mongwaketse 1st Respondent

The Ngaka Modiri Molema District Municipality 2nd Respondent

The Pension Funds Adjudicator 3rd Respondent

Standard Bank of South Africa Limited

4th Respondent

Summary:

Application for review of, and statutory appeal against, determination of pension funds adjudicator in terms of the Pension Funds Act 24 of 1956.

Pension fund contending that adjudicator had no jurisdiction under Act on basis of her own finding that the complainant was not eligible as a member of the pension fund, and therefore no jurisdiction to order repayment of all contributions made by complainant to pension fund.

Held: on a proper interpretation of definition of “complainant” and “complaint” in terms of the Act, jurisdiction established.

Held further: since adjudicator had power to make any order a court of law could make once jurisdiction established, this included repayment on basis of enrichment, and thus her determination could not be impugned.

Held further: applicants’ defences of non-enrichment and of prescription rejected, and application for review, and statutory appeal, both dismissed.

J U D G M E N T

Van der Linde, J:

Introduction and background

[1] This matter concerns an application by the two applicants principally to review and set aside a determination by the pension funds adjudicator who is joined as the 3rd respondent. There is in the alternative a statutory appeal by them in terms of section 30P of the Pension Funds Act 24 of 1956 (“the Act”) against that determination. The determination was in favour of the 1st respondent who had been employed by the 2nd respondent in terms of a contract of employment which expired after five years. The 1st applicant is, as its name indicates, a pension fund, and the 2nd application is its administrator.

[2] The 1st respondent had lodged a complaint with the pension funds adjudicator, because the 1st applicant had paid out to her her pension fund contributions during her period of employment with the 2nd respondent in an amount which she considered was too low. In fact, the amount that was paid out to her was made up of her direct contributions to the pension fund, and it excluded her indirect contributions by her employer on her behalf. This was substantially more than her own direct contributions. The amount paid out by the 1st applicant included also interest on her direct contributions and the aggregate amount so arrived at was multiplied by 1.5. This was in terms of section 37(1)(b) of the pension fund rules.

[3] In her complaint to the adjudicator, the 1st respondent said that she should in fact not have been admitted as a member of the 1st applicant pension fund, since she was a fixed term employee of the 2nd respondent and the rules of the 1st applicant provided only for employees whose contracts of employment had no fixed termination date.

[4] Indeed, since the 1st respondent’s contract of employment was – on her argument – a fixed term contract, the pension fund rules regarded the termination of the 1st respondent’s employment through effluxion of time, as a resignation by the 1st respondent of her employment; and that is why she received only repayment of her direct contributions and not also her indirect contributions made on her behalf – in terms of her contract of employment by the 2nd respondent – by the 2nd respondent.

[5] The way in which the adjudicator dealt with the complaint was to find that indeed the 1st respondent could not lawfully have been admitted as a member of the 1st applicant because her contract of employment was a term contract and not an indefinite contract. The adjudicator accordingly directed the 1st applicant to repay to the 1st respondent all of her contributions, therefore not only those directly made by her, but also her indirect contributions made by the 2nd respondent as her employer, as part of her employment package, to the 1st applicant.

[6] The essential thrust of the review application brought by the two applicants is that the adjudicator had no jurisdiction to deal with the complaint at all, because the moment that the complaint became one in which the 1st respondent sought repayment of her contributions on a common law enrichment basis - since the pension funds adjudicator held that she was never lawfully a member of the 1st applicant - the complaint fell outside of the rules of the 1st applicant and therefore outside of the statutory power of the adjudicator in terms of the Act.

[7] Perhaps put differently, the applicants argued that since the adjudicator held that the 1st respondent could never have become a member of the 1st applicant, that finding precluded the adjudicator from proceeding further and from granting common law relief (repayment, on the basis of a condictio indebiti) to the 1st respondent.

[8] There is a counter-application brought by the 1st respondent against the two applicants. In that application she seeks an order reviewing and setting aside the applicants’

acceptance of the 1st respondent’s application to have become a member of the 1st applicant at all. In the alternative, she seeks an order declaring that the 1st respondent was not eligible to have become a member of the 1st applicant and therefore never was a member. She seeks also an order directing the 1st applicant to refund to her all the contributions made by her to the 1st applicant, plus interest.

[9] During the course of argument it became clear that since the 1st respondent’s primary position was one which defended the determination of the pension funds adjudicator, this counter-application was conditional upon the applicants’ application against the determination of the adjudicator succeeding.

[10] Against this introduction and background I proceed to discuss the applicable statutory milieu, and thereafter the facts and the applicants’ causes of action.

The Pension Funds Act 24 of 1956

[11] Pension funds are required to be registered in terms of the Act.[1] Once registered, a pension fund becomes a body corporate which is managed by its board, whose object shall be to direct control and oversee the operations of the fund in accordance with the applicable laws and the rules of the fund. Such rules are required to be in a prescribed format and they are binding on the fund and its members by dint of section 13 of the Act.

[12] Chapter VA of the Act deals with the consideration and adjudication of complaints. In terms of section 30A a complainant may lodge a written complaint for consideration by the board of a pension fund. Such a complaint must be properly considered within 30 days. If the complainant is not satisfied, the complainant may lodge the complaint with the pension funds adjudicator, which is an office established in terms of section 30B of the Act.

[13] A “complaint” is defined in section 1 of the Act as (emphasis supplied):

“means a complaint of a complainant relating to the administration of a fund, the investment of its funds or the interpretation and application of its rules, and alleging –

(a) that a decision of the fund or any person purportedly taken in terms of the rules was in excess of the powers of that fund or person, or an improper exercise of its powers;

(b) that the complainant has sustained or may sustain prejudice in consequence of the maladministration of the fund by the fund or any person, whether by act or omission;

(c) that a dispute of fact or law has arisen in relation to a fund between the fund or any person and the complainant; or

(d) that an employer who participates in a fund has not fulfilled its duties in terms of the rules of the fund; but shall not include a complaint which does not relate to a specific complaint; …”

[14] The main object of the pension funds adjudicator is, in terms of section 30D of the Act, “to dispose of complaints lodged in terms of section 30A(3) … in a procedurally fair, economical and expeditious manner”. In so doing, the pension funds adjudicator exercises a public power and also performs a public function as envisaged in the definition of “administrative action” in section 1 of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).[2]

[15] Section 30E of the Act provides, in relation to the disposal by the adjudicator of complaints, in relevant part as follows (emphasis supplied):

“30A Disposal of complaints

(1) In order to achieve his or her main object, the adjudicator –

(a) shall, subject to paragraph (b), investigate any complaint and make the order which any court of law may make;

(b) may, if it is expedient and prior to investigating a complaint, require any complainant first to approach an organisation established for the purpose of resolving disputes in the pension funds industry or part thereof, and approved by the registrar.”

[16] Section 30F of the Act provides for the adjudicator to afford the fund an opportunity to comment on the allegations made by the complainant, and section 30H obliges the adjudicator to investigate a complaint by following any procedure (section 30J) which he or she considers appropriate in conducting an investigation, including procedures in an inquisitorial manner. No party is entitled to legal representations at proceedings before the adjudicator.

[17] Once the adjudicator has completed an investigation he or she shall in terms of section 30M send a statement containing his or her determination and the reasons for it to all parties concerned, and also to the clerk or registrar of the court which would have had jurisdiction had the matter been heard by a court. Interest runs on a money determination from the date and at the rate determined by the adjudicator.

[18] And, finally, in terms of section 30O, any determination by the adjudicator shall be deemed to be a civil judgment of any court of law had the matter in question been heard by such a court and shall be so noted by the clerk or the registrar of the court concerned.

A writ or warrant of execution may be issued on the strength of such a determination.

[19] There is provision in section 30P of the Act for any person aggrieved by a determination of the adjudicator to apply for appropriate relief to the high court. It was accepted in the present matter that the nature of the power exercised by the high court upon an application in terms of section 30P of the Act, is that of an appeal in the wide sense, and thus a re-hearing.[3]

The facts

[20] The complaint is dated 8 March 2017. As will appear below, it reflects the 1st respondent’s tale of persistent but unsuccessful enquiries since November 2014 regarding the appropriateness of her membership of the pension fund, given the fact that she was a fixed term contract employee. During this time her employer was deducting and paying her monthly contribution to the 1st applicant, who kept receiving these, and who kept adopting the position that the 1st respondent was in fact a member of the pension fund. It is unavoidable that the complaint be set out at some length, for reasons that will become apparent later.

[21] In her complaint the 1st respondent sets out that she was appointed on 1 February 2012 as Chief Executive Officer on a five year fixed term contract by the 2nd respondent. She says that on her appointment she was given a contract of employment whereby it was expected that she also contributes to a retirement fund. The 1st applicant was indicated as the appropriate fund. She completed a membership form and the contributions were thereafter made from her package as agreed with her employer.

[22] Her letter of appointment accompanied her complaint. The letter of appointment is dated 29 November 2011 and the 2nd paragraph reads as follows:

“Your appointment is for a period of 5 years performance based contract which is in line with the terms of the Council. You will be expected to negotiate your remuneration package with the Municipal Manager and further sign the appointment and contract respectively within 30 days after assumption of duty. I trust that you will find your work inspiring and motivating.”

[23] The application form signed by the 1st respondent for her membership of the 1st applicant with effect from 1 February 2012 makes no provision for the attachment of her employment contract. In her complaint, the 1st respondent explained how from about November 2014 she began enquiring about the correctness of a benefit statement that she had received.

[24] She was referred to and spoke with a Mr Malebane of the 1st applicant, and she explained to him that her contract of employment would be ending on 31 January 2017. He explained to her that her benefit statement was correct, and the rules of the fund did not distinguish between a contract employee and a permanent employee. It was just that in the case of a contract employee, the termination of the contract was akin to resignation. She said to him that if she should die, her beneficiaries would not be paid the death benefits as the fund would then say that the rules excluded her.

[25] After her conversation with Mr Malebane, she wrote a letter to the 2nd respondent’s Human Resources Department on 28 November 2014, and requested them to discontinue deducting her contributions to the fund with effect from the next day until the matter was resolved.[4] She also requested a copy of the rules of the pension fund to see what Mr Malebane was referring to, and ultimately printed a set of the rules of the 1st applicant for herself off the internet. Armed with these she sought clarification from a Mr Mahole, the 2nd respondent’s Senior Manager: Corporate Resource Support, because she did not understand the rules.

[26] He explained to her that she should not have been given the application forms to join the 1st applicant at all. He wrote a letter to the 1st applicant on 1 December 2014, but to date no response has been received. On 5 December 2014 she wrote a letter to the 1st applicant herself, explaining that no further contributions should be made by her employer, as she was a fixed term contract employee.

[27] Not having received a response, she phoned the 2nd applicant on 16 September 2015 and spoke to a person by the name of Ivy, and explained everything to her, including that she had not received responses from the 1st applicant. She was asked to send copies of the letters, which she did. She phoned Ivy the next day, 17 September 2015, and Ivy confirmed receipt of the letters.

[28] On 18 September 2015 a representative of the 2nd applicant happened to visit the 2nd respondent to present the benefit offerings of the 1st applicant pension fund. She met with him privately, and explained her issue to him. He responded by explaining that there is in fact a pension fund for fixed term contract employees, and that the 1st respondent should transfer her contributions to that fund. He gave her the forms required for this purpose. She did not do this, as she wanted her money back, whereas instead she was being told to transfer her money to a different fund.

[29] She followed up with Ivy on 22 September 2015. Ivy said she had handed it all over to a Mr Wanda Ndaba. On 25 September 2015 the Acting Municipal Manager of the 2nd respondent, and also the Administrator, wrote to the 1st applicant requesting that all her contributions be refunded. This precipitated a meeting with the 1st applicant on 10 February 2016 at their offices. Just before the meeting started, Mr Ndaba gave the 1st respondent a letter dated 9 November 2015 which was apparently in response to the 1st respondent’s letter written to the 1st applicant in 2014, i.e. some 14 months later.

[30] In that letter[5] the 1st applicant purports to agree with the 1st respondent that she is a member of the 1st applicant, and that she may not cease being a member for as long as she is employed by the 2nd respondent. For the rest, the letter unhelpfully does not address the dichotomy of her being a member despite the fact that the fund rules, as will appear more fully below, expressly exclude employees with fixed term contracts as members.

[31] Present at the meeting of 10 February 2016 were a legal advisor of the 2nd applicant, a legal advisor of the 2nd respondent, one representative of each of the 2nd applicant and the 2nd respondent, and the 1st respondent herself. At the meeting the 2nd respondent’s legal advisor asked when the 1st respondent could expect to have her money paid back; and the 2nd applicant was also challenged about not responding to correspondence.

[32] Mr Ndaba of the 1st applicant responded that Ivy had been dismissed for fraud. But he contended, purporting to rely on the rules of the pension fund, that no-one was allowed to terminate his/her membership other than through death, resignation or retirement. The marketing manager of the 2nd applicant contended that the 2nd respondent should not have ceased paying the 1st respondent’s contributions, as that was in breach of the rules. He also asked why the 1st respondent did not want to join the new pension fund which was for employees that were on fixed term contracts.

[33] The legal advisor of the 2nd respondent then asked everyone to look at the definition of “employee” in the rules of the pension fund, in terms of which a person employed for a limited period was excluded from the definition. The response of the 1st applicant’s legal advisor was that that meant that the 1st respondent should not have been a member of the pension fund, and that everything that she has contributed is hers. He would take the matter back to the trustees and revert. The meeting adjourned on that basis.

[34] On 9 March 2016 the 1st respondent phoned Mr Ndaba to follow up, but he texted back to say he was in a meeting. On 15 March 2016 the 1st respondent texted him to follow up, and again he responded that he was in a meeting. On 22 March 2016 she texted him again, but there was no response. She did this again on 13 April 2016, and again there was no response.

[35] In November 2016 the 1st respondent phoned the marketing manager of the 2nd applicant to say she had heard nothing from Mr Ndaba. He said that Mr Ndaba was sitting right next to him, and he handed the phone to him. Mr Ndaba said that the trustees were divided on the issue whether the 1st respondent was a member or not, but that he would give her an update on 2 December 2016. She phoned on that date but he did not respond.

[36] On 17 January 2017 the 1st respondent phoned the marketing manager of the 2nd applicant to say that her contract ends on 31 January 2017. He said that she should fill in the forms provided for the purpose of being paid. On 7 February 2017 she was given appropriate forms, filled them in, and these were sent off on that day. She was assured by Postnet that the forms would reach Mr Ndaba the next day. By the time of her complaint of 8 March 2017, she had not heard anything.

[37] The 1st respondent thus concluded her complaint by contending that according to the rules of the pension fund there is no provision for contract employees being a member; that she was excluded as a member; and that therefore she should not have been admitted as a member. She put her contention in these terms:

“According to the rules of the pension fund I am excluded as member. Which means to begin with I shouldn’t have been a member. Since they defined who is an employee according to them and they were explicit that the word ‘employee’ and ‘member’ will be used interchangeably, hence there is nowhere in the rules where they talk about contract employees.”

[38] She claimed that therefore she should be repaid her total contributions, both the direct portion of 7,5% and the indirect portion of 22%), times 1,5 plus mora interest.

[39] The adjudicator sent her complaint to the 1st applicant[6] whose response on 10 October 2017 included the sentence: “We confirm receipt of the complaint in respect of D I Mongwaketse who joined the fund on 1 February 2012.” The letter goes on to contend that the 1st respondent properly became a member of the pension in terms of its rules, and that she was bound by those rules. It says that accordingly she terminated her membership through resignation on 30 September 2015, although the fund only received the duly completed

termination forms in 2017. She was paid her resignation benefit of R371 129, 18, of which R133 606.51 was deducted as being payable to SARS.

[40] The 1st applicant nowhere disputed any part of the detailed factual exposition of the 1st respondent. Of importance here are two points: first, that from the outset the 1st respondent queried whether she could lawfully have been admitted as a member of the pension fund – and in fact later her query tended to become a resolve that in law she never did become a member, and she claimed back her contribution.

[41] The second point is that it was in November 2014 that she first became aware of the potential problem (apparently that the employer’s contribution was not being reflected as her own contribution, as in fact it was), and within three years she referred the complaint to the pension funds adjudicator.

The determination of the pension funds adjudicator

[42] In arriving at her determination, the pension funds adjudicator set out the history of the steps taken by the 1st respondent to obtain a resolution of her query. She also set out the responses received from the two appellants and then proceeded with her determination and reasons for it.

[43] In her reasoning she concluded that it was common cause that the 1st respondent was employed for a limited period and she expressed concern that the 1st appellant did not properly screen potential members to ensure that they meet the membership requirements before they were accepted as such. She went on to find that the complainant did not meet the eligibility criteria of membership and yet she was accepted as a member contrary to the provisions of the 1st applicant’s rules.

[44] She reasoned that the 1st respondent’s contract of employment did not make it compulsory for her to join the 1st applicant. She reasoned further that since the complainant was remunerated on a total cost to employer basis, all the contributions

that were made to the 1st applicant were made by the 1st respondent and none of them could be attributed to her employer.

[45] The adjudicator further reasoned that since the 1st respondent could not legitimately have become a member of the 1st applicant, she was not bound by the rules of the 1st applicant and therefore the 1st applicant should refund to her the total amount of all the contributions that were made by her as well as those that were deemed to have been made by her, but actually paid direct by her employer, the 2nd respondent.

[46] She therefore concluded ultimately that the 1st applicant was to refund to the 1st respondent the amount of R856 489,94, less any permissible deductions and payments that have already been made to her, plus interest at the rate of 10,25% per annum from the date of the determination which was 10 November 2017.

Discussion

Jurisdiction

[47] It is appropriate to begin the discussion with the question whether the adjudicator had jurisdiction to deal with the complaint at all. The appellants argued that the adjudicator did not have jurisdiction, as stated above. The conceptual underlay of the argument is that the moment the complaint does not involve the proper application of the rules of the pension fund, or the moment that the relief sought and granted by the adjudicator is not relief in terms of the rules of the fund, then – since the pension fund is a creature statute and a creature of its rules – there is no jurisdiction.

[48] As I see it, whether the pension funds adjudicator had the power to dispose of the 1st respondent’s complaint by making any order on it that a court of law could have made, depends on whether the 1st respondent’s complaint was a “complaint” for purposes of the Act.

[49] The definition of “complaint” in the Act has been quoted above.[7] The first requirement is that the “complaint” should be of a “complainant” as defined. That definition reads as follows (emphasis supplied):

“'complainant' means-

(a) any person who is, or who claims to be-

(i) a member or former member of a fund;

(ii) a beneficiary or former beneficiary of a fund;

(iii) an employer who participates in a fund;

(iv) a spouse or a former spouse of a member or former member of a fund;

(b) any group of persons referred to in paragraph (a) (i), (ii), (iii) or (iv);

(c) a board of a fund or member thereof; or

(d) any person who has an interest in a complaint;…”.

[50] A complaint therefore does not qualify as a complaint – under paragraph (a) at least - unless the employee asserts pension fund membership. Given that here the 1st respondent asserted the contrary, i.e. non-membership, it would have been arguable, were it not for paragraph (d), that the requirements for a “complaint” as defined have not been satisfied.

[51] But paragraph (d), separated from the preceding paragraphs by the disjunctive “or”, includes as a “complainant” a person who has “an interest” in a complaint (as defined). The concept of “an interest” is not defined, but it is arguable that that concept cannot include the very opposite of the introductory portion to paragraph (a): it other words, that it could hardly have been intended to include as a complainant a person “who is not, or who claims to be not”, a member of a fund.

[52] But in my view that argument would not be sound, for these reasons. First, “an interest” is in its terms a concept of wide reach, and so too is “any person” (not “any other person”). Second, although the definition of “complaint” refers to a “complaint of a complainant”, textually it would be circuitous to read paragraph “(d)” of the definition of “complainant” into the definition of “complaint” again, because then it would mean, nonsensically, that a “complainant” is “any person who has an interest in a complaint of any person”. Rather, paragraph “(d)” of the definition of “complainant” should be read into the definition of “complaint” by omitting the reference in “complaint” to “of a complainant.”

[53] And third, the requirements for the definition of a “complainant” are satisfied by a person who merely claims to be a member of a fund, thereby implying that the adjudicator would have jurisdiction (otherwise) to determine whether or not the complainant was in fact a member (likely in the face of the fund’s contention to the contrary), and in fact may find that the complainant was not a member, and may then direct repayment to the complainant. If this is sound, then it makes little sense to exclude jurisdiction where the two protagonists’ contentions as to membership were reversed.

[54] As to whether the 1st respondent has a sufficient “interest” in the complaint, it seems to me clear that a financial interest would, at least, qualify. I therefore conclude that the 1st respondent is a “complainant” for the purposes of the definition of that concept.

[55] According to the remainder of the underscored portion of the definition of “complaint”, for such a complaint to be justiciable by the pension fund adjudicator it must relate at least to the interpretation and application of the rules of the pension fund, and the complaint must at least allege that a decision of the fund or any person purportedly taken in terms of its rules was in excess of its powers.

[56] As to the nature of the complaint, it seems incontestable that the letter of complaint by the 1st respondent raised throughout her eligibility as member of the 1st applicant all the while as she was making direct contributions and – at least for a while – also indirect contributions, as her employer was making contributions on her behalf, to the 1st applicant.

[57] Whether or not the 1st respondent was eligible as a member[8] of the 1st applicant involves an interpretation of the rules of the 1st applicant, and an application of that interpretation to the 1st respondent’s contract of employment – properly interpreted - with the 2nd respondent.[9] That this is so appears from the following.

[58] The rules define an “employee” as a person employed by a local authority, but excluding a person “who is employed … for a limited period”. A “member” is defined as a person who becomes a member in terms of section 24 of the rules, and sections 24(2) and following clearly suppose that it is only an “employee” who may potentially become a member. This is underscored by the absence of provision for any member other than an employee , and also by the fact that the 1st applicant had been established as the “Municipal Employees Pension Fund”, in terms of the Local Government Ordinance, 1939 (Ordinance 17 of 1939).

[59] What the rules do not define is the concept of a “limited period” in relation to the definition of an “employee”. That is an important concept, for as we have seen, an employee who is employed for a limited period is excluded, i.e. may not be, an employee, and thus may not be a member, of the fund.

[60] The 1st respondent’s contract of employment provides in relevant part as follows:

“3.2 Notwithstanding the date of signature hereof, this agreement, and the appointment referred to in 3.1, shall commence and shall in all respects be deemed to have commenced, on the 1st February 2012, and shall endure for a fixed term of 5 (five years) subject to 3.3 below, and terminate on the 31st January 2017.

3.3 It is specifically recorded that at the end of the period referred to in 3.2 the Chief Audit Executive shall be offered an opportunity to renew this agreement before any advertisements for applications are done. The Municipal Manager and/or Executive Authority shall not unreasonably withhold such opportunity.”

[61] The 1st respondent argued that by definition the contract of employment was thus one “for a limited” period as stated in paragraph (iii) of the definition of “employee” in the rules. I agree, for two reasons. First, the extension of the period of employment beyond the first five years is no given. There may be valid reasons for not extending it, reasons that would not justify a retrenchment. And second, even if the agreement were renewed, there is no implication – as the applicants argued – that the renewal position is to be a term of the renewed agreement.

[62] Finally, on this part of the discussion, the question is whether the membership eligibility of the 1st respondent would qualify under any of paragraphs (a) through (d) of the definition of “complaint”. In my view that issue qualifies under all three of paragraphs (a) through (c). I have already indicated my preference for the application of paragraph (a) by underscoring it above.

[63] There it is expressly envisaged that the complaint may allege that the fund was acting “in excess of the powers of that fund”, after “purportedly taken in terms of the rules”. The acceptance by the fund of a person as a member despite that person being non-eligible, would par excellence be conduct “purportedly taken in terms of the rules”, but “in excess of the powers of that fund”.

[64] But further, take paragraph (b): A complainant who asserts that she has sustained prejudice in consequence of the “maladministration of the fund” could very well include a complainant would alleges that despite being non-eligible, she was ostensibly accepted as a member of the fund and such acceptance constituted “maladministration”. After all, the word “maladministration” is of wide reach and import, and not susceptible to the kind of limitation advanced on behalf of the applicants.

[65] Take paragraph (c): Again, the reference to “a dispute of fact or law” without any limitation is of wide reach and import. It is and has to be limited, otherwise the pension funds adjudicator could simply duplicate as a court. But on a proper interpretation, text, context and purpose borne in mind, the words “relating to the administration of a fund, the investment of its funds or the interpretation and application of its rules” in the introductory portion of the definition of “complaint” serves as the limiting factor.

[66] Paragraph (d) relates to the obligations of an employer and does not have pertinence in the present case.

[67] It will therefore be evident that I have come to the conclusion that the adjudicator did have jurisdiction to dispose of the complaint. The applicants referred me to an unreported judgment by Bhoola, AJ in this division delivered on 13 December 2018, in the matter between the same applicants and Ramaphakela and others, case no 2016/40359. There the court held that once the adjudicator came to the conclusion that the complainant was in fact not a member of the pension fund, she had no jurisdiction further to deal with the matter.

[68] With respect to the learned judge, I do not agree with that conclusion, which I believe is clearly wrong. Once it is established

that the complaint qualifies as a complaint, the adjudicator has jurisdiction, for reasons set out above, and she must then “dispose” of the complaint in terms of section 30D of the Act, by making any order a court of law could have made, as stated in section 30E(1)(a)

of the Act.

[69] The learned judge apparently reasoned that if a complainant is not a member of a fund, there is no jurisdiction. But the court appears not to have been referred to paragraph (d) of the definition of “complainant”, which includes a person who has an interest in a “complaint” as defined. And as I have indicated, that interest does not include membership of a fund.

The relief granted by the pension fund adjudicator

[70] Moving on to whether relief in the form of repayment of contributions could have been awarded: As pointed out, the Act provided the pension funds adjudicator has jurisdiction following on the definition of “complaint”, the adjudicator has the power to make any order that a court of law could have made. And if a court of law could have ordered the repayment of contributions made on the basis that they were not owing, then so could the pension funds adjudicator.

[71] Two issues must be dealt with briefly here. The first is the argument that enrichment was not established, on the basis that in fact the 1st applicant was on risk and so the 1st respondent was not impoverished by the contributions. But I have found that in law the 1st applicant was not on risk because the 1st respondent was not a member, and so the prima facie inference of enrichment/impoverishment which follows on the showing on a payment made without cause, has not been disturbed.

[72] The second point is that the claim for repayment on the basis of the condictio indebiti has prescribed. But it has not, since – apart from the fact that prescription was not raised before the adjudicator - the complaint was lodged within three years of the 1st respondent becoming aware that she might not actually be eligible as member of the 1st applicant; and in terms of section 30H(3) of the Act, that interrupted the running of prescription.

[73] It will have been inferred from what goes before that in my view the determination of the pension funds adjudicator was correct,

irrespective of whether her reasons could conceivably have been framed differently. There is of course a prior issue raised by the applicants, being that the adjudicator did not afford them a proper hearing; she should have informed the applicants that the 1st respondent’s complaint was that she was in truth not a member of the pension fund, but she did not.

[74] Here the argument was that properly construed the 1st respondent’s claim was one for payment in terms of the rules of the fund, thereby implying that she was a member and wished relief on that basis. No doubt the 1st respondent claimed more than her entitlement by insisting on interest at 22%. But a reading of the whole of her complaint, as I have set out above, clearly shows that her complaint was that she should not have been admitted as a member, whereas the applicants contended the opposite.

[75] The applicants were given the complaint, and were thus fairly apprised of her case. They were in a position to assess what relief a court could potentially grant on those facts. It follows that in my view the review on that basis cannot succeed.

[76] The applicants sought to review the determination on four grounds: lack of jurisdiction; no rational connection between the information before the adjudicator and the determination; errors of fact and of law; and procedurally unfair determination. I have dealt with the first ground and have held against it. As to the second ground, I have concluded that the adjudicator was correct in her conclusion and determination. And I have held against the third and fourth grounds.

Conclusion

[77] It seems to me therefore that the pension funds adjudicator had the power to make the determination that she did and in my view it cannot be faulted. It would follow that the review, whether under PAJA or under the principle of legality (even if there were, in this case, scope for such), nor the appeal, is successful. The application in convention therefore has to fail; but so too the application in reconvention. Costs must follow the event of the application in convention.

[78] The application in reconvention was conditional on the application in convention succeeding. Given the applicants’ main point, that of jurisdiction, the application in reconvention was an appropriate precaution, one which was intrinsically tied up with the application in convention. In my view it is fair that the costs of the latter follow the fortunes of the costs of the former.

[79] There was no argument put before me that the pension fund adjudicator’s determination was too vague and uncertain properly to qualify as a court order, nor that it left open an issue which still needed to be determined.

[80] In the result I make the following order:

(a) The application in convention is dismissed.

(b) The application in reconvention is dismissed.

(c) The applicants are to pay the costs of the application in convention and in reconvention, jointly and severally, the one paying the other to be absolved.

WHG van der Linde

Judge, High Court

Johannesburg

Date heard: 27 May 2019

Date judgment: 4 June 2019

For the applicants:

Adv JPV McNally SC

Instructed by:

Webber Wentzel

Applicants’ Attorneys

90 Rivonia Road

Sandton

2196

Tel: +27115305867

Fax: +27115306867

Email: vlad.movshovich@webberwentzel.com

Kalinka.eksteen@webberwentzel.com

Ref: V Movshovich/K Eksteen / 3024321

For the respondents:

Attorney WP Schöltz

Schöltz Attorneys

55 James Moroka Avenue

Stad Sentrum

Suite 5

Potchefstroom

2531

Tel: (018) 293 2822

Fax: (018) 293 2847

[1] I accept that this pension fund is one envisaged under section 4 of the Act, and not section 4A, being one to which the State

contributes financially.

[2] The applicants implicitly accept this by their bringing an application to review the decision of the pension funds adjudicator

under PAJA. And that acceptance is, in my view, correct, because the adjudicator does more than simply investigate; that office also makes a determination which has the effect of a court order. Compare in this regard, Companies and Intellectual Property Commission v Yacoob 2017 JDR 0740 (GJ).

[3] Meyer v Iscor Pension Fund, 2003 (2) SA 715 (SCA).

[4] The letter is included as page ten of the record of the determination provided by the adjudicator.

[5] Page 18 of the record of the adjudicator’s determination.

[6] Davis J has remarked that too strict a view of the procedure to be adopted in matters before the adjudicator ought to be avoided:

Central Retirement Annuity Fund v Adjudication of Pension Fund and another (Financial Services Board Intervening), [2006] 4 All SA 251 (C).

[7] A helpful discussion of the definition appears in Armaments Development and Production Corporation of SA Ltd v Murphy NO and

others 1999 (4) SA 755 (C).

[8] The adjudicator has accepted in other matters that s/he had jurisdiction to determine whether or not an employee was a member of a fund: Essrich v Anglogold Pension Fund and Another [2003] 8 BPLR 5054 (PFA); Annandale v Commercial Union of South Africa Staff Pension Fund and Another (2) [2000] 7 BPLR 708 (PFA).

[9] An instance in which the interaction between the rules and the employment contract was applied, is De Waal v Armscor and Another

[1999] 11 BPLR 258 (PFA).