Nomsenge v Member of the Executive Council for the Department of Education, Eastern Cape Provincial Government and Others (J 230/2020) [2022] ZALCJHB 41 (8 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 230/2020

In the matter between:

KHANGELWA VICTORIA NOMSENGE

Applicant

and

THE MEMBER OF THE EXECUTIVE COUNCIL FOR

THE DEPARTMENT OF EDUCATION, EASTERN CAPE

PROVINCIAL GOVERNMENT First

Respondent

THE DEPARTMENT OF SPORT, RECREATION

AND ARTS AND CULTURE, EASTERN CAPE

PROVINCIAL GOVERNMENT Second

Respondent

GOVERNMENT EMPLOYEE PENSION FUND Third

Respondent

Heard: 27 July 2021

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down are deemed to be 08 March 2022.

JUDGMENT

MAHOSI. J

Introduction

[1] The applicant launched an application in terms of section 158(1)(a)(iii)[1] of the Labour Relations Act[2] (LRA) for an order directing the respondents to rectify her pension contribution date to reflect the commencement date as 20 January 1976 instead of 01 May 1996.

[2] The first, second and third respondents opposed the application.

Background

[3] The applicant commenced her employment with the Department of Education of the then Government of Ciskei as an educator at Ntloko Primary School from 20 January 1976 until 06 April 1995. She resumed her employment with the second respondent on 07 April 1995, where she is currently employed as an Assistant Manager.

[4] In September 2019, the applicant began to make enquiries about her pension because she had reached her retirement age and was contemplating retiring. The records from the third respondent reflect her date of employment as 07 April 1995 and her pension fund contribution having commenced on 01 May 1996.

[5] The applicant disputes this record as incorrect and submits that it does not reflect her contribution for the period between January 1976 and April 1996. She further submits that the first and the second respondents have failed to rectify this error despite all her efforts to do so.

[6] The first respondent did not dispute that the applicant commenced employment with the then Government of Ciskei on 20 January 1976. However, it submitted that the information from the State Information Technology shows that she started contributing to the pension fund from 1986 until approximately 1991. It further submitted that it is unable to access any information prior to 1996 on the PERSAL system and that it had limited information relating to the applicant’s

employment from 1995.

[7] The second respondent denies that the applicant is entitled to the relief sought on the basis of two grounds. The first is that, the applicant’s contribution commenced on 01 September 1986. In this regard, it relies on the information from SITA.

[8] The second ground is that she had a break in service when she took a study leave from 01 January 1990 to 06 April 1995. In this regard, the respondents rely on an internal memorandum written by the applicant on 21 June 2017 and the letter authorising her study leave.

[9] In her internal memorandum, the applicant stated as follows:

‘This serves to confirm that I am a teacher by profession. I started teaching on 20 January 1976 with the then government of Ciskei. I taught for 14 years up to 31 December 1989. In 1989 I applied for study leave which was approved. I started furthering my studies on 01 January 1990. Approval for such leave was accompanied by me receiving a full salary for the whole year of 1990 after which nothing came into my pocket.

After graduating with my 2 Degrees and the Higher Diploma in Education from the University of Fort Hare, I looked for employment to get one on 07 April 1994. It was only then that I came back to the system. My Salary Advise reflects 1994 as the year during which I started working. My concern is on the pension I accumulated during the 14 years with the Ciskei Government…’

[10] The applicant further summarised her work experience by stating that she worked as a teacher for the Department of Education from 20 January 1976 to 31 December 1989, furthered her studies at the University of Fort Hare from 01 January 1990 to 06 April 1995 and worked for the Department of Education Culture and Sport as a DSRAC official from 07 April 1995 to date.

[11] In her replying affidavit, the applicant submits that in 1990 she registered and studied full time whilst she was earning and contributing to her pension. Further that she only resigned as a teacher on 05 April 1995 and resumed her duties as a lecturer at Lovedale College on 07 April 1995, a position she held until she was promoted to Educational Specialist on 07 January 1997. In essence, the applicant alleges that she contributed to her pension from 1976 to date.

[12] The letter of approval of the applicant’s leave from 01 January 1990 to 06 April 1995 states, inter alia, that her teaching post would be reserved for one year only, i.e. 1990 academic year after which it would fall vacant in the event of her not reporting on the opening day in January 1991.

Applicable law and analysis

[13] The third respondent is the Government Employee Pension Fund, which was established in terms of section 2 of the Government Employee Pension Law (GEPF Law). Its purpose is to “provide the pensions and certain other related benefits as determined in this Law to members and pensioners and their beneficiaries.”

[14] Section 4(3) of the GEPF Law defines members of the fund as, inter alia, any person who immediately before the date determined in terms of section 14 (1) (a) in respect of a previous fund, is a member or pensioner of that fund, shall with effect from that date be a member or pensioner of the Fund.

[15] In this case, it is not in dispute that the applicant is a member of the Fund. It is further apparent from the pleadings that whilst the first and the second respondents rely on the SITA’s records to aver that the applicant’s contribution commenced on 01 September 1986, the third respondent's records show that her contribution commenced from 01 May 1996, leaving out the period between 1976 to 1995 when the applicant was employed by the then Ciskei Government and the first respondent. The issue is whether the applicant’s records should record her pensionable service to commence from 20 January 1976 to date.

[16] Section 14 of the GEPF Law provides for the discontinuance of previous funds and the transfer of assets and liabilities as follows:

‘(1) (a) A previous fund shall be discontinued with effect from a date determined in respect of that fund by the Minister. (b) Different dates may be so determined in respect of the different previous funds.

(2) All assets, including any right to claim any amount, and all liabilities, including any obligation to pay any pension, related benefit or any other amount in terms of any law, of a previous fund in respect of which a date is determined under subsection (1), shall with effect from that date pass to and vest in the Fund.

(3) The Minister shall as soon as possible after the determination of a date under subsection (1) in respect of a previous fund, take the necessary steps to indicate on the relevant title deeds or other documents pertaining to the assets which passed to the Fund in terms of subsection (2), the change of ownership or the vesting of any other right.

(4) Any person who has in his possession any financial instrument issued in respect of the investment of money of the Fund, or any document in the form of any stock, debenture, security, equity, insurance policy representing the investment, loan or insurance of any money or interest of the Fund, shall for the purposes of subsection (2) submit such instrument or document to the Minister.

(5) For the purposes of subsection (1) (a) 'previous fund' means­:

(a) the Government Employees Pension Fund of the Transkei, established in terms of the Government Employees Pensions Act, 1978 (Act 15 of 1978), of the former Transkei;

(b) the Transkeian Government Service Pension Fund, referred to in section 2 of the Transkeian Government

Service Pension Fund Act, 1970 (Act 4 of 1970);

(c) the Ciskeian Civil Servants Pension Fund, referred to in the Government Service Pensions Act, 1989 (Act 4 of 1989), of the former Ciskei, as amended by the Government Service Pensions Amendment Decree, 1993, of the former

Ciskei…’

[17] The GEPF Rules regulate the payment of contributions to the Fund and the payment of benefits from the Fund to or in respect of members on their retirement, discharge, resignation or death. Rule 6 requires the member who claims a benefit to provide satisfactory proof of the right to any benefit. It reads as follows:

‘The Board is entitled to require satisfactory proof of the right of any member, pensioner or his or her beneficiaries to any benefit and the Fund is not obliged to pay benefits to a member, pensioner or their beneficiaries until such proof has been submitted to the Board.’

[18] The GEPF Law and the Rules do not provide guidance on what constitutes satisfactory proof. However, in Mmileng v Government Employees Pension Fund and Others[3], the Court relied on Natal Joint Municipal Pension Fund v Endumeni Municipality to hold that the phrase “sufficient proof” must be interpreted in the context of the Rules as a whole and so as to give it commercially sensible meaning. The Court further stated that the question is not whether the proof is subjectively considered to be sufficient, but whether the proof supplied would satisfy a reasonable man in the position of the Board.

[19] In casu, the respondents’ refusal to rectify the applicant’s records is mainly based on the lack of historic pensionable service record. Whilst the third respondent should guard against the risk of paying benefits to members who are not entitled to such benefits, the rights of the members should not be prejudiced. Thus, although Rule 6 requires the members to provide sufficient proof of the right to benefit, the Constitution requires respondents to “exercise their powers and perform their duties in a manner that does not encroach the geographic, functional or institutional integrity of government in another sphere.”

[20] It is apparent that the first respondent has failed to keep adequate employment and contribution records of the Ciskeian Civil Servants Pension Fund. As such, it is unable to provide such information to the third respondent. The applicant provided a payslip of October 1989 that shows that she commenced employment with the then Ciskei Government on 20 January 1976, which is not disputed. To an extent that there is no allegation or proof that the applicant withdrew her pension fund, I am satisfied that her pensionable service before 1996 should be considered when calculating the benefit due to her.

[21] What complicates the applicant’s case is the circumstances surrounding the period she was on leave. In her founding affidavit, the applicant did not disclose the fact that she took a study leave. After it being raised by the respondents in their answering affidavit, the applicant submitted in her replying affidavit that she registered and studied full time whilst she was earning and contributing to her pension. In her heads of arguments, she submitted that from 1991 until 1995 she was studying part-time and still continued earning a salary and contributing to the pension fund. This is in contradiction to her internal memorandum, in which she stated that her salary was paid in full only in 1990 and that upon completing her studies she looked for employment which she found on 07 April 1995.

[22] It is apparent from the above that the applicant is either not taking this Court into her confidence or she brought this application hastily and prematurely without having gathered sufficient information to enable her to set out a clear basis for her claim. From the pleadings and the supporting documents, I find the applicant’s version that she looked for employment after her studies more probable as it is consistent with the letter of approval, which states, inter alia, that her teaching post would be reserved for one year only. When the applicant continued studying beyond 1990, her position became vacant. As such, the applicant had a break in service.

[23] In light of the above, it is my view that the applicant has shown that she has a clear right to have her benefit calculated from 20 January 1976 to 31 December 1990 and from 07 April 1995 to the date of her termination of service. To an extent that she failed to establish that while she was furthering her studies between 1991 and 06 April 1995, she contributed to the Ciskeian Civil Servants Pension Fund, this period cannot be included in calculating the benefits due to her.

Costs

[24] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[25] In the circumstances, the following order is made:

Order

1. The respondents are ordered to rectify the applicant’s pension contribution to reflect the commencement to be from 20 January 1976 until 31 December 1990 and from 07 April 1995 to the date of her termination of service.

2. There is no order as to costs.

_____________

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Advocate M.H. Mhambi

Instructed by: Mashiyi Attorneys

For the respondent: Advocate L. Ah Shene

Instructed by: State Attorney, Port Elizabeth

[1] Section 158(1)(a)(iii) – The Labour Court may make an appropriate order including an order directing the performance of any particular act which order, when implemented, will remedy wrong and give effect to the primary objects of this relief.

[2] Act 66 of 1995 as amended.

[3] (7397/16) [2016] ZAGPPHC 1067 (15 December 2016).