Wilkens NO en 'n Ander v Bester (543/95) [1997] ZASCA 9; 1997 (3) SA 347 (SCA); [1997] 2 All SA 386 (A); (13 March 1997)

Wilkens NO en 'n Ander v Bester (543/95) [1997] ZASCA 9; 1997 (3) SA 347 (SCA); [1997] 2 All SA 386 (A); (13 March 1997)

The Supreme Court of Appeal held that the payments made to the respondent prior to the liquidation of the pension fund, although irregular and ultra vires, were intended by both the Fund and the respondent to partially discharge the Fund's obligation to him. The liquidators did not seek to recover the payments, and the respondent did not tender to return them. The law must recognize the factual reality that the respondent has already received the payments, and permitting him to claim the full pension share would result in double recovery. The advance payments must be set off against his pension entitlement, and he is not entitled to receive the same amount twice. The appeal succeeded, and...

Citation
[1997] ZASCA 9
Parties
Appellant: Wilkens NO; Respondent: Bester
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 March 1997
Case Number
543/95
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal upheld with costs; cross-appeal dismissed with costs as against the first appellant; the order of the court a quo is set aside and replaced.
Judges
Van Heerden, Marais JA
Legal Topics
Pension Fund Liquidation, Condictio Indebiti, Ultra Vires Payments, Insolvency Act Section 23 7, Pension Funds Act Section 37b
Civil Procedure Commercial and Corporate Pension Fund Liquidation Condictio Indebiti Ultra Vires Payments Insolvency Act Section 23 7 Pension Funds Act Section 37b

Case Brief

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Parties

Wilkens NO

Appellant

Bester

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Whether payments made to the respondent from the pension fund prior to liquidation were valid pension payments or irregular payments subject to recovery.
  2. 2 Whether the respondent is entitled to claim the full value of his pension share despite having received advance payments.
  3. 3 Whether the liquidators of the pension fund may set off the advance payments against the respondent's pension entitlement.

Ratio Decidendi

The Supreme Court of Appeal held that the payments made to the respondent prior to the liquidation of the pension fund, although irregular and ultra vires, were intended by both the Fund and the respondent to partially discharge the Fund's obligation to him. The liquidators did not seek to recover the payments, and the respondent did not tender to return them. The law must recognize the factual reality that the respondent has already received the payments, and permitting him to claim the full pension share would result in double recovery. The advance payments must be set off against his pension entitlement, and he is not entitled to receive the same amount twice. The appeal succeeded, and...

Court Disposition

Appeal upheld with costs; cross-appeal dismissed with costs as against the first appellant; the order of the court a quo is set aside and replaced.

Orders

  • The appeal is upheld with costs.
  • The cross-appeal is dismissed with costs as against the first appellant.