IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH CASE NO: 228/2015 Date heard: 30 July 2015 Date delivered: 4 August 2015 In the matter between NOMALUNGISA MPOFU Applicant And GOVERNMENT EMPLOYEES PENSION FUND Respondent Application to compel payment of pension interest respondent s defence based on alleged failure of employer to submit relevant claim documents rejected respondent s failure to take steps to process payment of pension benefits after being alerted to claim by applicant constituting breach of statutory obligation respondent ordered to take all steps necessary to process payment in terms of s 26 of Government Employees Pension Laws, 1996. JUDGMENT GOOSEN, J. [1] The applicant applies for an order setting aside the failure by the respondent to take a decision regarding the payment of the applicant s pension benefit. She also seeks an order directing the respondent, effectively, to pay out to the applicant. The pension benefits due to her. The respondent opposes the application on the basis that it has not received certain documents from the applicant s erstwhile employer, the Department of Education, Eastern Cape (hereinafter the Department ). The point is also taken that the applicant has failed to join the Department.
2 [2] The applicant was employed by the Department as an educator. She resigned from this position with effect from 31 March 2013. It is not in dispute that during her tenure as an employee of the Department she was a member of and contributed to the respondent. [3] The applicant s founding affidavit sets out in some detail the background facts which gave rise to her resignation. It is not necessary for present purposes to set out those facts in any detail. It is sufficient to record that the applicant and husband were working in Kimberley. Although the family home is situated in Port Elizabeth. At some point, the husband was transferred to Port Elizabeth. The applicant then applied for a transfer to Port Elizabeth. These requests were met with no response. Despite various efforts to elicit consideration of the application. The applicant s health deteriorated and she was diagnosed as suffering from a Generalised Anxiety Disorder. She then applied for Temporary Incapacity Leave on more than one occasion. The applications were declined. She states that the oppressive conduct of the Department resulted in her tendering her resignation in January 2013. [4] Subsequent to her resignation the applicant received a formal response to three separate applications for temporary incapacity leave. Each of these applications was refused. In response, the applicant s attorney requested access to relevant documents. When these had not yet been received by June 2013 she instructed her attorney to launch legal proceedings. In consequence certain documents were eventually received on 24 June 2014. These documents included documents relevant to her resignation and pension benefit payments. [5] In the meantime the applicant had received no communication from the respondent relating to the payment of her pension benefits. The applicant accepted that the Department would have submitted the relevant documents to the respondent. On 24 July 2014 the applicant s attorneys wrote to the respondent enquiring when her pension benefits would be paid to her. Included with this letter were the documents
3 received from the Department on 24 June 2014. These documents the Z102 form for withdrawal of funds from the pension fund contain details furnished by the employer in relation to a claim for a withdrawal from the pension fund. They are signed by an official of the employer and the applicant and are dated 22 and 23 May 2013. Significantly these documents include a letter addressed to the applicant on 19 February 2013 in which she is requested to supply a certified copy of her identity document and to complete certain forms, namely the Z864 and Z894. These completed forms are attached to the Z102 form referred to above as is a certified copy of her identity document. [6] No response was received to the letter of 24 July. A further letter was sent on 7 October 2014 and a third letter on 28 October 2014. No response was received to any of these letters. As a result the applicant telephoned the respondent s offices on 28 November 2014. She was informed that the Department had submitted no exit documents to it. The applicant conveyed this to her attorneys who immediately wrote to the respondent. Copies of the previous correspondence including the documents previously submitted were attached to the letter. [7] On 22 January 2015 the applicant launched this application. The respondent opposed the application and eventually filed an answering affidavit in May 2015. At the hearing of the matter condonation was sought for the late filing of the answering affidavit and was granted. [8] The respondent takes the stance that it is reluctantly opposing the application. Its position is that it has not received any documents from the Department and therefore that it has not failed to take any steps to process the payment of the applicant s pension benefits since there is no proper claim before it. The respondent goes further and states that the applicant has failed to join the Department, which apparently has a material interest in these proceedings. On this basis the respondent prays that the application be dismissed.
4 [9] What is striking about the respondent s answering affidavit is the failure to deal with specific allegations made by the applicant. There is no answer to the allegation that the correspondence was sent to the respondent and that the correspondence included all of the relevant Z102 documents. The respondent ignores the allegation that it did not reply to this correspondence. Also absent is a denial that the Z102 documents provide a sufficient basis for the processing of the payment of the pension benefits due to the applicant. The only basis for opposition is that these documents were not received from the Department. [10] There is also no legal basis pleaded to suggest that a benefit payment and/or a withdrawal from the fund may only be processed at the instance of an employer and upon receipt of documents from that employer. [11] Insofar as the alleged non-receipt of documents from the Department is concerned, it was submitted that the factual allegations of the respondent must to be accepted and therefore that the applicant cannot succeed in establishing any breach of her rights entitling her to relief. [12] An examination of the respondent s answering affidavit and the documents annexed thereto, however, casts very serious doubt upon the respondent s claim that it has not received documents. In answer to the allegation regarding the applicant s communication with the respondent regarding the processing of her claim, the respondent says the following: Applicant by her own admission in paragraph 14, she is assuming that her former employer has submitted exit forms and this is not the case. I deny that the nonjoinder employer has submitted exit documents and I put the Applicant to the proof thereof. To take this Honourable Court to (sic) the respondent s confidence, I annex hereto a screen print out record of Applicant s filing, marked LL 2 which shows that to date no exit documents have been submitted. [13] Annexure LL2 contains a number of entries relevant to the data held by the respondent in respect of the applicant. The entry that the respondent relies on
5 indicates Termination cd: Persal Z102 await. No doubt this indicates that the Z102 documents are awaited. Yet, immediately above that entry the following appears: Termination dat: 2013/03/31 [14] The applicant s termination date appears in paragraph 17 of the Z102 documents annexed to the papers and in her letter of resignation included as a supporting document to the Z102 claim form. It indicates that the date of service termination is: 2013/03/31. [15] The respondent offers no explanation for how it could have come to know that the termination date was 31 March 2013 without having received notification of that date by receipt of relevant documentation from the Department. The only inference that can be drawn is that the respondent received information in a form upon which it relied in order to make the entry on the applicant s file which LL2 represents. Since it was argued that the respondent cannot process any claim on the basis of copies of the Z102 received from the applicant, those documents cannot be the source of the information upon which the respondent relied. Accordingly, the denial of receipt of the Z102 or other exit documents from the Department cannot be accepted. [16] In any event, even if it were to be accepted, it cannot avail the respondent. There is no provision in the Government Employees Pension Laws 1996 (hereinafter the GEPL ) which states it as a requirement for the payment of a pension benefit that the employer is obliged to submit the appropriate claim form. Counsel could refer to no such provision. Nor is there any provision in the Rules of the Fund, which appear as a Schedule to the Act, which contains such obligation. [17] Section 26 (1) of the GEPL provides that: Notwithstanding anything to the contrary in any law contained, a benefit payable in terms of this Law shall be paid to the member, pensioner or beneficiary entitled to such benefit within a period of 60 days from the benefit becoming payable to
6 the member, pensioner or beneficiary, which 60 days shall be calculated from the day following the date on which the benefit becomes payable: Provided that a benefit shall become payable to a member, pensioner or beneficiary on the last day of service at the employer or that member or pensioner or the death of that pensioner. [18] The section establishes that a benefit becomes due and payable on the last day of service and imposes an obligation upon the Fund to effect payment within 60 days of that date. [19] Counsel sought to rely on Rule 8 and Rule 22. The former deals with the collection of contributions to the Fund and is of no application to the present matter. Rule 22 deals with communication between the Fund and employers. It provides as follows: For purposes of communication in regard to membership of the Fund, payment of member and employer contributions to the Fund, payment of other monies owing by members and the employer to the Fund, and related matters, the Fund shall communicate with the departments, administrations, institutions and bodies where members are or were in service: Provided that where any such matter or any other matter cannot be effectively dealt with by means of such communications the Fund shall communicate with the Minister: Provided further that a member or pensioner shall have the right to communicate direct with the Fund in regard to any matter which affects him or her personally. All factors and interest rates to be decided by the Board after the required consultation processes, as set out in the rules, shall be communicated to the employer and the members in accordance with the provisions set out above. (Emphasis added) [20] The second proviso makes it clear that a member has the right to communicate directly with the Fund in relation to any matter that affects him or her personally. Rather than restrict communication to that between the respondent and an employer, the Rule clearly sanctions the sort of communication that the applicant entered into with the respondent in this instance in order to secure payment of her pension benefits. [21] The respondent is generally obliged to conduct itself in a manner that is consistent with the provisions of the Constitution. It must promote the spirit, purport and objects of the Constitution. As a pension fund, established by government to
7 administer the funds of state employees who are its members, it is obliged to act with fidelity and the utmost good faith in the interests of its members. It cannot adopt an obstructive and obfuscating approach to the processing of claims made by or on behalf of members of the Fund. Nor can it choose to ignore communications from a member who seeks to protect his or her interests. The respondent s conduct in this matter amounts to precisely this. [22] There is no merit in the contention that there has been a material non-joinder of the Department. Even if it is accepted that the Department has been recalcitrant in its obligations, there is no excuse for the respondent having taken no steps at all since it was, on its version, alerted to the issue by the applicant in July 2014. There is no explanation on the respondent s papers as to what steps the respondent took to secure the Department s co-operation. Instead it sought to shield itself behind the Department s alleged inaction. [23] In my view the words of Zacoob J in Njongi v MEC, Department of Welfare, Eastern Cape 1 are apposite: It is always open to the provincial government to admit without qualification that an administrative decision had been wrong or had been wrongly taken and consequently to expressly disavow that decision altogether. Indeed government at every level must be encouraged to re-evaluate administrative decisions that are subject to challenge that are subject to challenge and, if found to be wrong, to admit this without qualification and to disavow reliance on them. [24] In this instance the respondent could, assuming that it had not received the relevant documents from the Department, have elected to act upon the documents received from the applicant and have taken steps to ensure that the information provided therein is accurate. It chose not to. Instead it ignored correspondence and took no steps to facilitate payment of the pension benefits due to the applicant. [25] In my view the applicant has succeeded in establishing that the respondent has failed to act in accordance with its statutory and Constitutional obligations. 1 2008 (4) SA 237 (CC) at 260G-H
8 Although the applicant seeks to review certain conduct and direct payment of the pension benefit, it seems to me necessary only to issue an order compelling the respondent to fulfill its obligations in terms of the GEPL. [26] I therefore make the following order: (1) The respondent is ordered forthwith to take all steps necessary to process the applicant s claim for payment of pension benefits due to her in accordance with s 26 of the Government Employees Pension Law, 1996. (2) The respondent is ordered to pay the costs of the application. G. GOOSEN JUDGE OF THE HIGH COURT Appearances: For the Applicant Adv. I. Bands Instructed by Michael Randell Attorneys For the Respondent Adv. M. W. Nobotana Instructed by Simpiwe Jacobs & Associates Inc.