Sentinel Retirement Fund and Another v Masoanganye (1003/2017) [2018] ZASCA 126 (27 September 2018)

Sentinel Retirement Fund and Another v Masoanganye (1003/2017) [2018] ZASCA 126 (27 September 2018)

Section 37A(1) of the Pension Funds Act protects pension benefits from attachment or execution while they remain assets of the Fund. The benefit only becomes realisable property once paid out to the member. The restraint order under POCA cannot attach the benefit while it is held by the Fund, but once the member elects payment and ceases to be a member, the protection falls away and the benefit becomes part of the member's estate. Payment to a curator bonis, as authorised by the restraint order, is permissible and does not divest the member of ownership; the curator administers the funds on behalf of the member under court supervision. The Fund is not precluded from paying the benefit...

Citation
[2018] ZASCA 126
Parties
Appellant: Sentinel Retirement Fund; Appellant: Gary Meyer; Respondent: Richard Masoanganye; Respondent: Linda Martin Ndebele; Respondent: National Director of Public Prosecutions
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 2018
Case Number
1003/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg
Outcome
Appeal dismissed except as to costs; high court order amended regarding costs and payment instructions.
Judges
Lewis, Cachalia, Saldulker, Mbha, Makgoka
Legal Topics
Pension Fund Protection, Restraint Order, Curator Bonis, Prevention of Organised Crime Act, Attachment and Execution
Civil Procedure Banking and Finance Pension Fund Protection Restraint Order Curator Bonis Prevention of Organised Crime Act Attachment and Execution

Case Brief

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Parties

Sentinel Retirement Fund

Appellant

Gary Meyer

Appellant

Richard Masoanganye

Respondent

Linda Martin Ndebele

Respondent

National Director of Public Prosecutions

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Johannesburg

Legal Issues

  1. 1 Whether payment of a pension benefit to a curator bonis appointed under a restraint order issued in terms of the Prevention of Organised Crime Act is precluded by section 37A(1) of the Pension Funds Act.
  2. 2 Whether a pension benefit, once accrued and elected for payment, remains protected from attachment or execution under section 37A(1) of the Pension Funds Act.
  3. 3 Whether the Fund is obliged to pay the benefit into the member's personal account or may pay it to an account designated by the curator bonis.

Ratio Decidendi

Section 37A(1) of the Pension Funds Act protects pension benefits from attachment or execution while they remain assets of the Fund. The benefit only becomes realisable property once paid out to the member. The restraint order under POCA cannot attach the benefit while it is held by the Fund, but once the member elects payment and ceases to be a member, the protection falls away and the benefit becomes part of the member's estate. Payment to a curator bonis, as authorised by the restraint order, is permissible and does not divest the member of ownership; the curator administers the funds on behalf of the member under court supervision. The Fund is not precluded from paying the benefit...

Court Disposition

Appeal dismissed except as to costs; high court order amended regarding costs and payment instructions.

Orders

  • The appeal is dismissed except as set out below, with no order as to costs.
  • The applications in Parts A and B are dismissed.