NTOMBOXOLO SYLVIA NTSHENGULANA JUDGMENT

Transcription

1 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE LOCAL DIVISION, MTHATHA) In the matter between: CASE NO. : 193/2014 Heard on : 17 April 2014 Date delivered: 29 May 2014 NTOMBOXOLO SYLVIA NTSHENGULANA Applicant And METROPOLITAN LIFE LIMITED / RETIREMENT ANNUITY FUND GOVERNMENT EMPLOYEE PENSION FUND First Respondent Second Respondent JUDGMENT MAJIKI J: [1] The applicant made an urgent application and obtained an interim order on 31 January 2014 for the payment of a sum of R to her by Metropolitan Life Limited/Retirement Annuity Fund. Furthermore, a rule nisi was granted calling on the respondents to show cause why the withholding of applicant s pension money should not be declared to be unlawful. [2] In her founding affidavit she described the first respondent as Metropolitan Life/Retirement Annuity Fund a company duly registered in

2 2 terms of the laws of the Republic of South Africa t/a Metropolitan Retirement Annuity Fund ( MRAF ) an approved retirement fund. [3] The rule nisi reads as follows : 1.3 That a Rule Nisi do hereby issue calling upon the 1 st respondent to show cause if any, on Thursday the 27 th day of February 2014 at 10h00 or so soon thereafter as the matter may be heard why an order should not be made final in the following terms: That the withholding of applicant s pension money be and is hereby declared unlawful That the first respondent be and is hereby directed to release forthwith an amount of R being a portion of applicant s pension money That the balance of the pension money, minus tax payable, be released within three days after the return date. 2. That paragraphs and operate as an interim interdict pending the return date. [4] Subsequent to the said order she instituted proceedings seeking to hold Metropolitan Life/MRAF and its unknown representatives in contempt for failing to comply with the said order. She annexed the return of service of the order effected at No. [.]. According to her Metropolitan Life / MRAF has still not paid the sum of R

3 3 Background [4] The applicant was employed by the Department of Education and resigned on 31 March The applicant, upon the advice of a senior officer of Government Employee Pension Fund (GEPF) instructed GEPF to invest her pension benefit with (MRAF). Subsequently, she was supposed to sign a contract so as to complete the transaction. She was not happy with the final calculation by GEPF and therefore refused to sign the contract documents, even though the transfer of the funds to MRAF had already taken place. [5] MMI Group trading as Metropolitan and MRAF filed their notice to oppose the contempt of court order proceedings. They averred that Metropolitan is a division of MMI Group Limited, and are administrators of MRAF. The answering affidavit to the main application was filed on 27 March 2014, outside the days provided for by the rules of this court. [6] According to the deponent on behalf of the entities opposing of the application, MRAF is a separate legal entity capable of being sued in its own name, it is managed and controlled by a Board of Trustees with an appointed principal officer and is governed in terms of its own rules. Its registered office and main place of business is at Building 5, Parc du Cap Mispel Street, Bellville, Western Cape. [7] MM1 Group Limited is an authorised financial service provider trading as Metropolitan. On 01 July 2012 it purchased Metropolitan Life Limited as a going concern. Its registered address is situated at 268 West Avenue, Centurion, Gauteng. MM1 Group Limited trading as Metropolitan acts as administrator of MRAF.

4 4 Issue [8] The applicant seeks confirmation of the rule nisi of 31 January Furthermore she seeks to hold the first respondent and its representatives in contempt of the court order of 31 January [8] MMI and MRAF aver that Metropolitan Life Limited cited by the applicants no longer exists, even when it did, it existed separately from MRAF. Even MMI Group Ltd t/a Metropolitan is a public company which exists separately from the MRAF. [10] They aver further that the order of 31 January 2014 ought not to have been granted firstly for the reason that Metropolitan Life Limited is no longer in existence. Furthermore, MMI and MRAF registered office and main places of business are not situated within the jurisdiction of this court. They also did not consent to its jurisdiction. [11] The letters of demand have been addressed to Metropolitan Life, Bellville and Mthatha at the addresses of Metropolitan seeking compliance with the order of 31 January Even though the cited respondent does not exist, MMI and MRAF submit that they have legal and substantial interest in the applications. The entities ought to have been joined. Their interests would be prejudicially affected by the court s judgment if rule nisi is not discharged. If the applications are not opposed, there is a real potential that the rule nisi would be confirmed and the applicant could proceed to execute against them. The execution or compliance with the order would result in the breach of MRAF s statutory obligations in terms of Section 1 of the income Tax Act 58/1962. In their view, they have no legal obligation to comply with the aforesaid order.

5 5 [12] The applicant on the other hand argues that the purpose of the citation is that the parties must know that there are legal proceedings instituted against them. In her view the relevant and correct parties are before court. The deponent does not dispute that applicant s money is with Metropolitan Life Limited / Retirement Annuity Fund. [13] With regard to jurisdiction the applicant submits that she resides within the jurisdiction of the court and the negotiations for the transfer of her pension monies took place in Mthatha. The contract about the pension money between her and GEPF was entered into in Mthatha. Furthermore, Metropolitan has a business office with within the court s jurisdiction. The applicant disputes that there is a contract for investment of her monies between her and MRAF. [14] Mr Nabela argued that the correct parties are in court, the order of 31 January 2014 came to the notice of Metropolitan Life Limited / Retirement Annuity Fund. He referred me to the authority of this court in Mzukisi Ndarha v The Administrator, University of Transkei and Another 480/2001. In that case the administrator was appointed to exercise powers vested in the council which is the customary governing body of the University, the council was non existed at the time. Jafta AJP (as he then was) held that the administrator who was cited as first respondent was the only representative of the University who would decide whether the University should be involved in the litigation and he had already opposed the relief sought. He stated as follows to insist that Unitra be formally joined under the circumstances of the present case would constitute nothing else but putting form above substance. Unitra is quite aware of this application and has already authorised that it be opposed. The administrator s affidavit stated that I have been duly authorised by the first

6 6 respondent and indeed Unitra to depose to this affidavit in opposition of the instant proceedings. [15] It is common cause that the applicant s pension value benefit was, with the authorization of the applicant, transferred to MRAF; that MRAF is a separate legal entity, administered by MMI Group Limited t/a Metropolitan and that MMI Group Limited trading as Metropolitan is also a separate legal entity. [16] The applicant resigned on 31 March 2013 therefore the issue of her pension benefits arose after the said date. By that time Metropolitan Life Limited was already not in existence. [17] The facts in casu are distinguishable from the Ndarha case, supra. The Unitra Council which would ordinarily be the functionary for Unitra was nonexistent. The administrator was vested with powers that would ordinarily be exercised by the council. In casu MRAF exists as a separate legal entity so is its administrator MMI Group Limited. [18] The authority in Solenta Aviation (Pty) Limited v Aviation at Pty Limited 2014 (2) SA 106 SCA at paragraphs 14 to 16, clearly dealt with the issue of an incorrectly cited party. at paragraph 14 it is stated that The appellant was sought to be introduced to the proceedings by delition of the word workshops. For the rest of the citation remained unchanged. It is common cause that entities had the same registered address, which was the one given in the combined summons and particulars of claim. The appellant s counsel submitted that the description of the lessor in the contract and the reference to a domicilium ciandi et executandi communicated to the respondent the correct identity of the creditor, viz the appellant. at paragraph 15 Meyer AJA held as follows: To look only at the contents of the contract and to conclude that the respondent must have appreciated, or

7 7 even did appreciate, who the true creditor was, which is essentially what the agreement of the appellant amounts to, can in my view not be conclusive of the enquiry as to whether payment of debt was claimed by the creditor. The parties to an action are cited in combined summons and particulars of claim and the cause of action is set out in the particulars of claim. It is true that the debt the appellant seeks to claim is the same debt that Solenta Aviation Workshop sought to enforce in combined summons that was served upon the respondent. The description of the plaintiff as Solenta Aviation Workshops and of the defendant as work (Pty) Limited on the face of the combined summons and in the particulars of claim and the further averments about the written agreement that was concluded between those two entities make it plain that the appellant was not the creditor that claimed payment in terms of the combined summons notwithstanding the reference to the appellant s name as the lessor in the annexed contract. The citation of the domicilium does not assist the appellant. at paragraph 17 the learned judge found that in applying the objective test the claim made in the combined summons was, on a plain reading, not that of a true creditor, which is the appellant, and the service of that process on the respondent did not interrupt the running of the prescription. [19] The applicant did not cite any of the existing entities nor did she seek to join them as co-respondents in the applications. She therefore failed to make a claim against the true parties that are holding her pension monies. In the circumstances I find no basis to confirm the order of 31 January made against a non-existent respondent. Similarly, the contempt with court order proceedings have been initiated against non-existent respondents. [20] With regard to jurisdiction, the applicant stated that this court has jurisdiction in the matter because she resides in Mthatha within its area of

8 8 jurisdiction. This cannot be the basis on which allege this court s jurisdiction. The appellant has failed to prove that this court has jurisdiction in respect of the transaction with the would have been first respondent, had it been cited correctly. She cannot rely on the contract that may have existed between her and GEPF to seek an order against MRAF. GEPF transferred her pension benefits on her instructions to MRAF. MRAF does not have offices within the jurisdiction of this court. Alternatively, with regard to the cause of action, she did not complete the process of entering into a contract with MRAF. She ought to establish the jurisdiction with regard to her cause of action. [21] Consequently, the main application ought to be dismissed and the order of 31 January be discharged. In the circumstances I find no basis to grant the relief sought by the applicant in the subsequent application. In the result; 1. The rule nisi granted in the main application is hereby discharged. 2. The application seeking to hold the respondents in contempt of court order of 31 January 2014 is hereby dismissed. 3. The applicant is ordered to pay the costs of the contempt application. B MAJIKI JUDGE OF THE HIGH COURT

9 9 Counsel for the applicant : Mr Nabela Instructed by : Messrs Z Ntelezi & Company Office No. 3, Meyers Building Madeira Street MTHATHA Counsel for the respondent : Mr Heunis Instructed by : J F Heunis & Associates 26 Blakeway Road MTHATHA