---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case Number: 20042/2021

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED: YES

DATE: 22 NOVEMBER 2024

SIGNATURE

 

In the matter between:

 

G[...] S[...] M[...]                                                                        APPLICANT

 

And

 

GOVERNMENT EMPLOYEE PENSION FUND                       RESPONDENT

 

JUDGMENT

THOBANE, AJ

 

Introduction and background

[1]        The applicant seeks a declaratory order directing the respondent, the Government Pension Fund (GEPF), to pay to the applicant 50% of a pension interest of B[...] I[…] M[...] (the deceased), within 30 days of the order of this court as well as costs of suit.

 

[2]        By way of background, the applicant and the deceased got married in community of property on 13 April 1991. In circumstances that the applicant describes as ‘behind her back’ and ‘fraudulent’ in that she was never served with summons, divorce proceedings took place on 22 January 2015, seemingly unbeknown to her. At the time of the divorce the deceased was a member of the Government Employees Pension Fund and had an interest in it. By virtue of the deceased’s marriage to the applicant, which was in community of property, she too had a 50% interest in the pension, it was submitted on her behalf.

 

[3]        When the parties were divorced, the decree of divorce issued the following orders;

 

“1. That the bonds of marriage subsisting between the plaintiff and the defendant be and are hereby dissolved;

 

2. That the joint estate shall be dissolved;

 

3. That there is no order as to costs.”

 

[4]        On 13 March 2015, just less than two months after the divorce, the deceased married Duduzile Princess Nombika by civil rites. Four months later on 26 July 2015 the deceased died. His then wife lodged claims for herself and two dependants with the GEPF between July and October 2015 culminating in the allocation of percentages to the claimants in June 2021.

 

[5]        It must be mentioned that the founding affidavit was very scant and did not disclose much. It was in fact the respondent’s answering affidavit that disclosed more facts, which were helpful in the adjudication of this matter.

 

[6]        In the respondent’s answering affidavit and this became common cause at the hearing, the respondent pleaded that the applicant approached the Regional Court, Pietermaritzburg seeking to interdict the respondent from paying out the pension proceeds or benefits. The order obtained reads as follows;

 

“1. The Government Employee Pension Fund is hereby interdicted, restrained and prevented from distributing and/or paying out the Late BI M[...] (membership number ………) benefit pending finalisation of the rescission application before this court;

 

2. Alternatively, the Government Employees Pension Fund be and is hereby directed to withhold the member’s benefit held under membership number ……., pending the finalisation of the rescission application before this Court;

 

3. The Old Mutual Group Scheme, be and is hereby interdicted, restrained and prevented, from distributing and or paying out the Late BI M[...] with identity number …………. group scheme-benefit pending the finalization of the rescission application pending before this honourable court;

 

4. There is no order as to court;

 

5. Paragraphs 1,2, and 3 will operate (illegible manuscript) as interim interdict return date 07 February 2018.”

 

[7]        It was not disclosed by the applicant what happened on the return date, that of 07 February 2018, nor did the respondent say anything in that regard. On 06 September 2019, nevertheless, the application for rescission was dismissed and the costs were awarded against the applicant.

 

[8]        The applicant contends that by operation of the law half the pension interest belonged to her but was wrongly paid to the deceased’s wife. In these proceedings the applicant therefore is seeking an order directing the respondent to pay to her what she calls her “half share”. It must be mentioned that the pension benefits were paid over to the deceased’s new wife and other beneficiaries (the applicant’s children), after GEPF calculated the percentages. I will return to the parties’ submissions in due course.

 

Issues

 

[9]        The issue for determination in this matter is whether the applicant has made out a case for an interdict. The contention by the applicant is that as of right and by operation of the law, half the pension proceeds, at the time of divorce, belonged to her. Counsel for the applicant submitted that there was no dispute about the chronology. Further that the nub of the dispute was among others the provisions of section 7(7)(a), 7(8)(a) of the Divorce Act[1]

 

[10]      Counsel for the respondent on the other hand accentuated a number of huddles which in his view the applicant will struggle to clear, namely;

 

·         That the applicant has relied on incorrect legislation;

 

·         That the applicant utilised the Pension Fund Act[2] read together with the Divorce Act instead of the Government Employees Pension Law;

 

·         That there is a non-joinder of the correct entity that adjudicates or adjudicated over claims as well as the surviving spouse and

 

·         That the applicant failed to refer the matter for arbitration insisting instead to proceed with litigation.

 

Submissions

 

[11]      Both counsel prepared comprehensive heads of argument for which this court is grateful and also made full submissions in open court. Ms. Mbanjwa gave the factual matrix of the matter from the time of marriage between the deceased and the applicant up until the time of his death. The applicant in the founding affidavit does not say when exactly she became aware for the first time that she had been divorced without her knowledge. Attached to the affidavit however is the court order interdicting the payment of the pension interest. The date depicted thereon is 28 December 2017. The further submission by counsel was that as soon as the decree of divorce was granted, by operation of the law, her 50% of the pension benefits accred to her and that the respondent was well aware of this. That since the chronology, as filed on CaseLines, is not disputed, the respondent would have been aware as far back as 28 December 2017 and 10 December 2020 that her share was due to her.

 

[12]      She submitted further that the applicant was a beneficiary of half the pension proceeds both in terms of section 37 the Pension Fund Act as well section 7(7) read with section 7(8) of the Divorce Act. To the extent that it is argued by the respondent that there is a non-joinder, counsel was of the view that on the authority of Ndaba v Ndaba[3] it was not necessary. The surviving spouse has not been joined in this application because at the time of divorce she was not in the picture, it was submitted. The source of the right remains even if the court does not issue a specific declarator. The failure to rescind the divorce order was said to be of no moment. Lastly, that there was no need to join GPAA in these proceedings, as no case exists against them. The case that exists is against the GEPF as the “custodian” of the funds.

 

[13]      Mr. Maputla submitted on behalf of the respondent that the law which is applicable in this instance is the Government Employees Pension Fund Law, 1996 as amended and not the Pension Fund Act as submitted by counsel for the applicant. He submitted that in terms of the Government Employees Pension Law, the pension fund for government employees is to be administered by Board of Trustees established in terms of that Act. The administrative arm of the GEPF however is the Government Pensions Administration Agency (the GPAA). Moreover, the deceased’s wife has also not been joined. In the absence of them in these proceedings, the applicant’s application is doomed, he submitted.

 

[14]      Counsel further made the point that the GEPF or the GPAA, cannot be compelled to pay when there has not been proper compliance with the GEPF Law or applicable regulations promulgated in terms of that Law. The facts in Ndaba, which were heavily relied upon by the applicant, he argued, are different to those of this case. In Ndaba the Supreme Court of Appeal was called upon to determine whether it is necessary for a court granting a decree of divorce to specify, as contemplated by sections 7(7)(a) read with 7(8)(a) of the Divorce Act, that a pension interest be paid to the member spouse.

 

Legal principles

 

[15]      It is convenient to first deal with the respondent’s application for condonation of the late service and filing of its answering affidavit. The deponent to the answering affidavit states therein that he a Legal Advisor: Legal Services who serve both the GEPF and GPAA. Litigated matters emanating from the GEPF, are dealt with by them but within the GPAA. The grounds in support of the application for condonation are set out in the affidavit. The applicant listed five which are summarised as follows;

 

·         The respondent did not wish for the matter to proceed to litigation but the applicant pressed on with litigation;

 

·         As early as 23 June 2021 the respondent was desirous of settling the matter. Towards that historical documents were sourced as this matter was complex in nature dealing with important issues, unfortunately COVID-19 struck;

 

·         Documents were sourced from the Regional Court, Durban for the period 2015, being the year of divorce and 2021, the year of correspondence from the applicant’s legal representatives;

 

·         2020 and 2021 were the so called COVID years. During those years the investigation process was seriously hampered, as the Disaster Management Act gripped everyone;

 

·         That the respondent will demonstrate that there is a full defence to the application launched by the applicant and

 

·         That there will be no prejudice to the applicant.

 

[16]      The applicant briefly dealt with the approach in a condonation application, emphasising that it all is within the court’s discretion in the end. In addition, stating that in this matter there is a reasonable explanation for the default or delay. Further that, in the case of the applicant in this matter; they (respondent) have shown a clear indication, it was submitted, that there is a bona fide case on the merits of the matter; that there exists a clear indication that the granting of the indulgence will not unduly prejudice the applicant.

 

[17]      The principles for granting condonation are trite. Simply put, an application for condonation must set out justifiable reasons for non-compliance. In Melane v Sanlam lnsurance Co Ltd[4], Holmes JA stated the principle as follows:

 

“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the fact and, in essence, is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation thereof, the prospect of success, and the importance of the case. Ordinarily these facts are interrelated,· they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion...”

 

[18]      The court possesses wide discretionary powers which it exercises judicially in the evaluation of relevant factors in a condonation application. The factors for consideration in a condonation application are closely related, a reasonable explanation for the delay coupled with a good prospect of success may augment the chances of success of the application for condonation; a weak explanation, but good prospect of success and the importance of the case will permit for the granting of an application for condonation. The interests of justice underpin the court's exercise of its discretionary powers. A good explanation without prospect of success on the merits warrants a refusal of condonation.

 

[19]      The court may grant condonation despite a poor explanation for the delay where doing so will be in the interests of justice. This will be the case for example  where an appellant seeks an erroneous judgment and order to be set aside, but had failed to comply with the time frames provided for the lodging and prosecution of the appeal. The interests of justice will necessitate the granting of condonation.

 

[20]      The respondent has in my view made out a case for condonation. The late filing of the respondent’s answering affidavit is condoned.

 

[21]      It is not easy to immediately discern, in exact terms, the true nature of the relief sought by the applicant, whether it is a mandatory interdict or a mandamus. This is because the main relief that the applicant seeks is couched in the following terms;

 

“Respondent must pay Applicant 50% of the pension fund interest of the deceased B[...] I[...] M[...], Identity number (…………….) within 30 days of this order.” (The underlining is my emphasis).

 

Given the facts of the matter it however does not matter. In his seminal work Interdicts[5] Johan Meyer says the following; “A mandamus and a mandatory interdict is one and the same thing. There is no difference except to indicate the involvement of a public or governmental body on the one hand and a private person on the other hand. Except for this there is no reason to differentiate. A mandamus is an interdict. The requisites for interdicts considered in chapter C, apply to all three kinds of interdicts…”

 

[22]      What this means though is that the applicant, in order to succeed in this application, must show that the requirements for a final interdict have been met and that she is entitled to an order. It is trite that the three requirements for a final interdict  as mentioned above are, a clear right; a threat to breach such right (in the case of a prohibitory interdict) or a refusal to act in fulfilment of such right (in the case of a mandatory interdict) and no other remedy. (See Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others [2004] ZACC 20; 2005 (2) SA 359 (CC) para 107- 108). A declaratory order is an order by which a dispute over the existence of a legal right is resolved which right can be existing, prospective or contingent. I will return to the nature of the relief sought in due course.

 

Non-joinder

 

[24]      On the topic of non-joinder, the principles applicable are trite. In order to determine whether a party, who is not part of the proceedings before court, should have been joined, one must ask if that person had a direct and substantial interest in the order sought. The question as to whether all necessary parties have been joined depends not on the nature of the subject matter of suit but upon the manner in which as well as extent to which the court’s order may affect the interest of third parties. The test is simply whether or not a party has a direct and substantial interest in the subject matter of the action or suit. The interest envisaged is a legal interest in the subject matter of the litigation which may be negatively impacted on by the judgment or order sought from the court[6].

 

[25]      The principle is that a person is a necessary party and should be joined if such a person has a direct and substantial interest in any order the court might take or if such an order cannot be sustained or carried out or put into operation without prejudicing that party[7].

 

Analysis

 

[26]      The nub of the applicant’s submission in so far as being married in community of property to the deceased and being divorced subsequently is concerned, is that by operation of the law, as soon as the deceased obtained the decree of divorce, half the pension interest accrued to her. The deceased’s wife therefore ought not to have been paid a share, so the argument goes by the respondent, the pension interest which rightly belonged to her. What I consider to be the starting point of which very little was said by the applicant, is the assertion that the deceased obtained a decree of divorce behind her back. It can be so only if the decree of divorce was obtained under fraudulent circumstances. This is so because it is trite that a divorce summons must be served personally on the defendant and if that service cannot be achieved, then a court order should be obtained for court sanctioned non-personal service.

 

[27]      The fact that the summons was not served personally on the applicant, on the face of it, is not an indication of fraud nor does it point to something untoward. If a plaintiff does not know the whereabouts of the defendant, the court can be approached for an order of substituted service. The applicant however did not say much about the return of service other than to say in the founding affidavit; “It is common cause in the divorce papers that there was no return of service indicating that I was served with the divorce papers”.[8]

 

[28]      According to the founding affidavit, the applicant abandoned the common household in 2001, she says it was due to the abuse she suffered at the hands of the deceased. In 2004 she left KwaZulu Natal for Gauteng. It cannot be ruled out therefore that the summons was served by way of substituted service as her whereabouts may have been unknown to the deceased at the time.

 

[29]      It is awkward that the applicant did not disclose in the founding affidavit that she obtained interim relief to restrain the respondent from paying out the pension benefits, pending as application to nullify the divorce. Further that an application to nullify the divorce was heard in the Regional Court, Durban and was dismissed. It was in fact the respondent that gave the relevant and detailed historical perspective.

 

[30]      It is not in dispute that the administration arm of the respondent is the GPAA which operates through a Board of Trustees in accordance with regulations or rules that came into operation on 01 May 1996. It is also common cause that the Board of Trustees manages the Pension Fund and exercises the powers, performs the functions and carries out the duties conferred upon, assigned to or imposed upon it, in accordance with the Regulations[9]. After assessing the claim the Board of Trustees decided to award death benefits as follows; 50% to the surviving spouse Duduzile M[...], the balance that of 50% was allocated to the children of the applicant, Z[…] and S[…] M[...] in equal shares (25% each). The relief sought by the applicant is a declaratory order that the respondent “must pay applicant 50% of the pension fund interest of the deceased B[...] I[...] M[...],………. within 30 days,,,”. The applicant knows however exactly how the pension interest was distributed by the GEPF which included payment to two of her own children. The remaining 50% was paid to the surviving spouse. An order directing the GEPF to pay the applicant 50% of the deceased’s pensionable interest, when the applicant knows that the GPAA decided otherwise and in fact that all the benefits were paid out including her 50% portion, will affect the GPAA being the decision maker, the surviving spouse Duduzile M[...] and the applicant’s own children Z[…] and S[…] M[...], the three being the recipients of all the pension or the beneficiaries. Counsel for the applicant was flippant about the non-joinder argument, stating that there was no need to join the GPAA as the administrator because it is the GEPF who are the custodians of the funds. The order sought by the applicant will indubitably prejudice them all. The decision maker as well as the beneficiaries have a direct and substantial interest, yet they are not before court. I find that a case has been made for non-joinder.

 

[31]      The proposition by counsel for the applicant that upon divorce, by operation of the law, her 50% accrued to her, is in line with the law. Sections 7(7) and (8) of the Divorce Act 70 of 1979 read as follows;

 

“(7)(a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets.

 

(b) The amount so deemed to be part of a party's assets, shall be reduced by any amount of his pension interest which, by virtue of paragraph (a), in a previous divorce ─(i) was paid over or awarded to another party; or

 

(ii) for the purposes of an agreement contemplated in subsection (1), was accounted in favour of another party.

 

(c) . . .

 

(8) Notwithstanding the provisions of any other law or of the rules of any pension fund ─

 

(a) the court granting a decree of divorce in respect of a member of such a fund, may make an order that ─

 

(i) any part of the pension interest of that member which, by virtue of subsection (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member; 

 

(ii) the registrar of the court in question forthwith notify the fund concerned that an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party and that the administrator of the pension fund furnish proof of such endorsement to the registrar, in writing, within one month of receipt of such notification;

 

(b) . . . .”

 

[32]      In Ndaba the Supreme Court of Appeal had occasion to deal with section 7 and 8 of the Divorce Act. The pertinent issue that was before that court was framed as follows at paragraph 11;

 

“[11] As indicated, the real issue on appeal is therefore whether a non-member spouse in a marriage in community of property, is entitled to the pension interest of a member spouse in circumstances where the court granting the decree of divorce did not make an order declaring such pension interest to be part of the joint estate.”.

 

[33]      The court went further to consider judgments from various divisions[10] which pertain to sections 7(7)(a) and 8 of the Act. Although the facts may have differed here and there, the common thread was the legal principle which had to be analysed. One of the cases referred to is that of Kotze where the Full Court said the following;

 

“[32] I am of the view that where parties who were married to each other in community of property in subsequent divorce proceedings do not deal with a pension or provident fund interest which either or both of them may have had in separate pension or provident funds either by way of a settlement agreement or by an order of forfeiture, each of them nonetheless remain entitled to a share in the pension or provident fund to which the other spouse belonged to and such share is to be determined as at the date of divorce by virtue of the provisions of section 7(7)(a) of the Divorce Act 70 of 1979.”

 

Counsel for the respondent submitted that whereas the applicant relied on section 37D(1)(d)(i) of the Pension Act 24 of 1956 which makes reference to section 7(8)(a) of the Divorce Act, the correct applicable legislation is the Government Employees Pension Law. While it might be so that section 37D of the Pensions Act gives effect to section 7(8)(a)(i) of the Divorce Act, so does section 21 of the Government Employees Pension Law. The following was said in Ndaba;

 

“[13] Section 21(1) of the Government Employees Pension Law 1996 which came into operation on 1 May 1996 is to the same effect. The section reads:

 

‘Subject to section 24A, no benefit or right in respect of a benefit payable under this Act shall be capable of being assigned or transferred or otherwise ceded or of being pledged or hypothecated or, save as is provided in . . . section 7(8) of the Divorce Act, 1979 (Act 70 of 1979), be liable to be attached or subjected to any form of execution under a judgment or order of a court of law.’”

 

[34]      Section 24A of the Government Employees Pension Law reads as follows;

 

“24A Payment of pension interest upon divorce or dissolution of customary marriage

 

(1) The Board shall direct the Fund to reduce a member's pension interest by any amount assigned from the member's pension interest to the member's former spouse in terms of a decree of divorce granted under section 7 (8) (a) of the Divorce Act, 1979 (Act 70 of 1979), or a decree for the dissolution of a customary marriage.

 

(2) (a) Subject to paragraph (j), for purposes of section 7 (8) (a) of the Divorce Act, 1979 (Act 70 of 1979), the portion of a member's pension interest assigned to the member's former spouse in terms of a decree of divorce or a decree for the dissolution of a customary marriage is deemed to accrue to the member on the date on which the decree of divorce or the decree for the dissolution of a customary marriage is granted.”

 

[35]      On the authority of Ndaba, the pathway to a pension interest of or by a non-member spouse after a decree of divorce is obtained, for purposes of division of the joint estate is both section 97D of the Pensions Act as well as section 24A of the Government Employees Pension Law. The respondent was well aware of this because in a letter addressed to the applicant’s erstwhile legal representatives, VB Tshabalala Attorneys dated 07 August 2015, the respondent advised the applicant’s legal representative as follows;

 

“You are hereby informed that the final Decree of Divorce has been received in this office and as it does not comply with section 7(8)(a)(i) and (ii) of the Divorce Act, 1979, as amended, no endorsement has been made against the Fund.

 

For the GEPF to comply with section 7(8) of the Divorce Act 70 of 1979, the following requirements must be adhere to

 

·         Identify the Fund;

 

·         Identify the parties correctly;

 

·         Indicate a percentage or amount to be paid to the ex-spouse;

 

·         Direct the Fund to pay the ex-spouse pension interest; and

 

·         The pension benefit value must still accrue to the member at time of Divorce.

 

Payment of the pension interest is therefore regarded as a personal agreement between the two parties and must be dealt with as any other asset in the estate of the parties.”

 

The contention on behalf of the applicant that there ought to be specific reference in the decree of divorce specifically dealing with the provisions of sections 7 and 8 of the Divorce Act, for entitlement of the 50% pension to be triggered, is therefore not meritorious.

 

[36]      The Supreme Court of Appeal having briefly analysed the conflicting decisions as well as the law applicable thereto, succinctly stated the correct legal position as follows;

 

“[31] In the result those decisions which held that if there is no reference in the divorce order of parties married in community of property to a member spouse’s pension interest, the non-member spouse is precluded in perpetuity from benefitting from such pension interest as part of his or her share of the joint estate, were wrongly decided…”

 

The upshot of this is that the decree of divorce as it currently stands, dissolving the marriage and ordering division of the joint estate, without making reference to the provisions of section 7 and 8 of the Divorce Act, is sufficient for purposes of entitling the applicant to 50% of the pension of the deceased as at the date of divorce. Thus a clear right has been established.

 

[37]      It must be noted that the relief sought by the applicant, that of directing the respondent to pay to her 50% of the deceased’s pension at the time of divorce, begs the question whether such an order is competent in light of the fact that all the pension proceeds have been allocated, calculated and distributed. An order directing the respondent to pay the applicant in these circumstances would in my view be incompetent particularly when all those stand to be affected by such an order, namely, the decision maker and the beneficiaries are not before court.

 

[38]      Which brings me to the question whether the applicant is without alternative remedies. In light of my posture on the non-joinder issue, the fact that the applicant is by law entitled to 50% of the pension interest as well as the common cause fact that the pension benefits have been distributed, an order dismissing the application will in my view not be appropriate as it my channel the applicant’s case on a trajectory which will be costly, protracted and which may not necessarily result in a just finding. The applicant has other alternative remedies.

 

[39]      The applicant had all the information at her disposal to direct the case properly and ensure that all those with a direct interest in the relief sought are joined in these proceedings. The applicant should therefore be mulcted with costs.

 

Order

 

[40]      In the result the following order is made;

 

1.    The application is struck from the roll;

 

2.    The applicant is directed to pay the costs.

 

 

SA THOBANE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

For the Applicant:               Ms. Mbanjwa

Instructed by:                     Mbanjwa Incorporated,

Pretoria.

 

For the Respondent:           Adv. Maputla

Instructed by:              Bonoko & Maphokga Attorneys,

                                   Pretoria.

 

Heard:                                  20 May 2024

Judgment:                            22 November 2024

 

This judgment was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on Caselines.  The date for  hand-down is deemed to be 22 November 2024.

---

---