CASE LAW UPDATE 2016

1. CASE LAW UPDATE 2016 Alec Freund SC Karin MacKenzie

2. Tellumat (Pty) Ltd v Appeal Board, Registrar of Pension Funds [2015] ZASCA 202 • The Context • DB Fund proposed to outsource pensioner liabilities to an insurer, and sought the Registrar’s approval, in terms of s14 of the PFA, for this “transfer of business”. • Registrar gave approval, notwithstanding objections raised by a group of pensioners. • FSB Appeal Board upheld the pensioners’ appeal against the Registrar’s decision. • An application by the employer to review and set aside the Appeal Board’s decision failed in the High Court and it appealed to the SCA. Neither the application nor the appeal were opposed. • ctnd

3. Tellumat(continued) • Leaving aside the administrative law niceties, the fundamental question was whether the Registrar erred in granting the s14 approval. • (ii) The facts in a little more detail • The Fund was a defined benefit fund, closed to new members. • There were two groups of pensioners in the Fund. One group had brought with them to the Fund a guarantee of a minimum 3% annual pension increase. • cntd

4. Tellumat(continued) • After extended negotiations, the trustees agreed on a surplus apportionment; agreed that the pensioners’ liability would be outsourced; and agreed that each pensioner would have the right to choose one of three options offered: • First option: the member’s interest would be invested on a “with profits” basis, with no minimum increase guarantee but a once off enhancement of the existing pension of 32%. • Second option: the member’s interest would be invested on a “with profits” basis, but with a 3% guarantee and a once off enhancement of 26%. • Third option: the member’s interest would purchase an inflation-linked pension, with a once off enhancement of 10.47%. • cntd

5. Tellumat(continued) • Section 14 of the PFA • In terms of s14(1)(c)(i) the Registrar must be satisfied that scheme for the proposed transaction: • “…is reasonable and equitable and accords full recognition- • (i) to the rights and reasonable benefit expectations of the members…” • A group of pensioners led by Mr Roy objected that the outsourcing transaction failed to secure the members’ reasonable benefit expectation and ignored the fact that the Fund would inevitably be liquidated. • They relied on s15I, which provides that, on liquidation, the rights and reasonable benefit expectations of members must be secured by any credit balances in the members’ surplus account and in the employers’ surplus account. They argued that the employer surplus account should contribute to the cost of the 3% guarantee and the cost of meeting all reasonable benefit expectations (inflation increases). • cntd

6. Tellumat(continued) • (iv) SCA’s decision • The SCA criticised the Appeal Board’s approach of separately considering whether the scheme “accords full recognition to the rights and reasonable benefit expectations of the members” and whether the scheme is “reasonable and equitable”: • “I am less than certain that these requirements are in truth distinct. If the scheme gives full recognition to the rights and reasonable benefit expectations of members, it will ordinarily be reasonable and equitable… The Registrar is obliged when considering a scheme to assess whether the members and pensioners will receive everything that they could reasonably expect to receive from the Fund. But that is all.” • cntd

7. Tellumat(continued) • The SCA held that “reasonable benefit expectations” must be founded either on the Funds “established practices, say in regard to pension increases” or on undertakings given by the Fund to members about their future treatment. • SCA held that the Appeal Board: • “…failed to give sufficient consideration to the fact that the s14 application was part of a broader scheme of distribution agreed upon by the trustees in 2007 when they were dealing with the apportionment of the surplus.” • The SCA dismissed the argument based on the right of some pensioners to a guaranteed 3% increase: “…the people who were complaining were those who by their own election had decided to forego a guaranteed 3% increase”. • cntd

8. Tellumat(continued) • More fundamentally, the SCA held that the three choices offered to members were “precisely in accordance with the rules” because the rules (as amended) authorised the Fund to offer members an annuity, the terms of which were to be agreed between the pensioner and the insurer on terms approved by the trustees. The SCA held: • “And, once an annuity had been purchased in accordance with the member’s choice, their rights and reasonable benefit expectations were those embodied in that annuity and not in provisions of the rules that they had elected to forego.” • The SCA held that the Appeal Board was wrong in taking s15I into account, noting that: • “…assuming there was to be a dissolution, this was only contemplated after the implementation of the specific terms of the distribution scheme as agreed to by the trustees…” • cntd

9. Tellumat(continued) • The SCA found that if the correct principles were applied, the Appeal Board would inevitably have to dismiss the pensioners’ appeal to it. • The SCA judgment also finally and clearly established that the decision by the FSB’s Appeal Board on an appeal against a decision by the Registrar is “administrative action”, which is reviewable on the grounds set out in PAJA.

10. Registrar of Pension Funds v Financial Services Appeal Board [2015] ZASCA 203 • This judgment concerned an appeal by the Registrar which ran in tandem with the last appeal. Like the employer, the Registrar brought the Appeal Board’s decision on review. Unlike the employer’s appeal, the Registrar’s appeal was dismissed. • The SCA held that the Registrar has no locus standito challenge on review a decision of the Appeal Board with which he or she does not agree. • The SCA accepted that where the Appeal Board endorses a decision by the Registrar and an aggrieved party then brings review proceedings (in which it is customary to cite the Registrar and the Appeal Board as parties) it is open to them to participate in the review and defend the challenged decision. • cntd

11. Registrar of Pension Funds v Appeal Board (continued) • “But the present case is different. Here the Registrar is adopting an adversarial position towards the Appeal Board. The dispute is not between the Registrar and an outside party aggrieved by the decisions. It is an internal quarrel between the Registrar and the Appeal Board over the correctness of the Registrar’s decision.” • Permitting the Registrar to adopt an adversarial position viz-a-viz the Appeal Board “would be inconsistent with the role of the Registrar as an impartial regulator acting in the interests of the industry generally… I find it difficult to see on what basis the Registrar can become a party to the merits of the decision in an adversarial sense when that decision is taken on appeal.” • “Recognising that the Registrar has locus standi to challenge the decision by the Appeal Board would upset the statutory relationship between the two as set out in the FSB Act. It would inconsistent with the purpose of creating the Appeal Board and has the potential to undermine it in performing its function. • cntd

12. Registrar of Pension Funds v Appeal Board (continued) • An argument that the Registrar has locus standi“acting in the public interest” was rejected. • The SCA distinguished its earlier decision in Pepkor, in which it held that, where the Registrar had issued a s14 certificate on the basis of information that was inaccurate and misleading and then applied to set the certificate aside, he or she had the required locus standi. That principle still stands. • If one of the parties affected by it is unhappy with the decision by the Appeal Board, they are free to review it. Recognising an independent right in the Registrar would permit of challenges to a decision accepted by the parties affected thereby.” • Where does this leave the Registrar when the Appeal Board decides a point of law which the Registrar thinks is wrong? Should the Registrar (who has expert insight) not be heard if a review determining the law is before the High Court? • cntd

13. British American Tobacco Pension Fund v Howie N.O. and Others [2015] 3 All SA 55 (GP) • Appeal against a decision by the Registrar rejecting the Fund’s 2007 statutory actuarial valuation. • The Fund’s scheme for an apportionment of surplus as at March 2002 (in terms of s15B of the PFA) had been approved by the Registrar, but this had not yet been implemented. • The Fund subsequently went into deficit and the actuary used part of the amount allocated to the members’ surplus account to reduce the deficit. The Actuary relied on s15H(1), which provides: “If a Fund has credit balances in the members’ surplus account or the employer surplus account and the Fund is found to have a deficit following an actuarial valuation such credit balances shall be reduced in the same proportion by the amount of the deficit…” • cntd

14. British American Tobacco (continued) • However, s15D(1) provides that any credit balance in the member surplus account “may only” be used for the purposes there specified (improved benefits, reduced contributions etc.); and s15D(2) provides that the credit balance in that account “must be used as specified in the scheme submitted in terms of s15B(1)” (i.e. the initial surplus apportionment scheme). • The Registrar took the view that s15H had no application to an initial surplus distribution (of a 2002 surplus); and that there would not have been any credit balance on the member surplus account if effect had been given to s5D. • In dismissing an appeal by the employer, the Appeal Board held: • “It would be inimical to the scheme and the legislature’s intention were it possible for the subsequent deficit to eliminate the MSA balance in question and so defeat the purpose for which it was allocated.” • cntd

15. British American Tobacco (continued) • It also held: • “Section 15H was clearly intended to deal with the deficit at a later time when, by necessary implication, the purpose of the scheme referred to in s15D(2) had already been implemented.” • The Fund took the Appeal Board’s decision on review to the High Court and won. • The High Court rejected the Registrar’s argument that the Fund’s 2002 surplus scheme required immediate back-to-back accounting, i.e. credit the members’ surplus account and then immediately debit this account to classes of members, former members and pensioners’ accounts. The Court held that there is nothing in the Act indicating that back-to-back accounting must take place. • The Court held that the language of s15H is clear and unambiguous and is not confined only to the period of the first apportionment in terms of s15B. • cntd

16. British American Tobacco (continued) • The Court held: • “In considering the provisions of s15 as a whole, I cannot find that the legislature had the intention to make s15H applicable to only future surpluses…” • Section 15H is not, in the language of the provision, subject to s15D. There is no reason to read in that s15H is subject to s15D. • The Court therefore directed that the Fund’s appeal against the Registrar’s decision be upheld. • Comment • It is difficult to reconcile this decision with the language of s15D(2) and, possibly, with the differential treatment by the PFA of 2002 surpluses and later surpluses. • An appeal has been noted.

17. City of Johannesburg & Others v SALA Pension Fund and others [2015] JOL 32956 (SCA) • The Fund, three trade unions and a few employees brought an application before the High Court for an order setting aside the employers’ decision to cease participation in the Fund (a defined benefit fund) with effect from1 January 2005. • Their case was that the employers acted in breach of obligations resting on them in statute, contract, administrative law and labour legislation when they decided to terminate their contributions to SALA and that the decision was in consequence a nullity. • The application succeeded before the High Court and came on appeal to the SCA. • The primary question considered by the SCA was a point in limine raised by the employers, that the employees who were members of SALA at the time of the decision should have been joined as parties to the application. • cntd

18. City of Johannesburg (continued) • The applicable legal principle is that a court will refrain from deciding a dispute unless and until all parties who have a direct and substantial interest in both the subject matter and the outcome of the litigation have been joined as parties. • The SCA commented that, on the merits of the dispute as to whether the employers’ decision to terminate the contributions to SALA was validly taken, the Fund and the unions were “probably correct.” • Nonetheless the appeal succeeded because the SCA found that the order sought and obtained from the High Court would probably have a detrimental effect on the rights and interests of at least some of the terminating members, so that they should have been joined. • When the employers stopped contributing to SALA their employees effectively ceased to be active members of SALA and at least some of them became contributing members of eJoburg (a provident fund). • cntd

19. City of Johannesburg (Continued) • The SCA questioned whether, if the present application succeeded, the employees might also become liable to pay their arrear contributions, despite the fact that they had in the meantime paid their contributions to eJoburg. It also questioned what might happen if SALA were to insist that the employers deduct employees’ contributions from the salaries of the members. • Not having been joined as parties to the present application, the employees would be entitled to revisit the question as to whether the employers’ withdrawal from SALA was invalid. There would be a risk of a contrary finding on this question by another court. This possibility illustrated why it was essential for the employees to be joined as parties to the present application. • Though three trade unions had been cited as applicants before the High Court, only some of the terminating members belonged to those trade unions. It was therefore unnecessary to decide what the law regarding locus standiwould have been if all the employees concerned had been members of the trade unions joined as applicants to the application. • cntd

20. City of Johannesburg (continued) • S7C(2) (which obliges a fund’s board to protect the interests of members) does not entitle a fund or its board to litigate on behalf of its members. • The SCA ordered that the application be stayed for three months pending the joinder of the Fund’s affected members and former members.

21. Sasol Limited v Chemical Industries National Provident Fund 20612/2014 2015 ZASCA 113 7 September 2015 • Rules amended to permit members to transfer to another approved Fund subject to certain conditions. 2444 members conveyed that they wished to transfer to another Fund. • The employer deemed the transfer date to be 1 March 2013, after which it ceased paying contributions to the Fund despite objections and concerns raised by the Fund. • The High Court upheld an application by the Fund for an order declaring that the members remained members of the Fund and that the employer remained obliged to pay member contributions and employer contributions. • An appeal by the employer to the SCA was dismissed, on an interpretation of the Fund’s rules. • cntd

22. Sasol (continued) • The rule stated that the Fund had to be satisfied that a transfer was reasonable and equitable. On the facts, it had never taken a decision to this effect. • The SCA confirmed that the transfers of the 2444 affected members had not (in law) taken place and that the employer’s contributions to the Fund had to continue. • Note: The “non-joinder” issue which was decisive in the SALA matter was neither raised nor decided in Sasol.

23. Kitshoff v Fedsure Staff Pension Fund and Another, unreported judgment of the High Court (GS) Case No 1825/2011, 7 January 2016 • Fund A, to which the employee and employer belonged, gave notice to the employer that it would not be accepting any further contributions. • With effect from 1/7/02 the employer ceased contributing to Fund A and in due course started contributing to Fund B. • On 30/6/03 the employee was retrenched. If he remained a member of Fund A at that point, he was entitled to enhanced benefits. • On 24/7/03 the Fund applied to the Registrar for approval in terms of s14 of the PFA to transfer its business relating to the employer’s membership to Fund B, with retrospective effect from 1/7/02. • cntd

24. Kitshoff(continued) • On 9/7/04 the Registrar approved the s14 transfer, after which Fund B paid out certain (lower) benefits to the employee. • The employee complained to the Adjudicator but she found that she did not have jurisdiction because, in her view, the complaint related to the validity of a scheme which had been approved by the Registrar in terms of s14. She held that the appropriate route would have been an appeal to the FSB’s Board of Appeal. • The employee appealed to the High Court. • The Court found that the Adjudicator was correct in finding that she had no jurisdiction. The crux of the complaint could not be dealt with separately from the validity of the s14 scheme, which had approved by the Registrar, with retrospective effect. • cntd

25. Kitshoff(continued) • The Court also went on to find against the employee on the merits. It found, on an interpretation of Fund A’s rules, that, once the employer ceased paying contributions to it, it ceased to be a “participating” employer. It had thereby “withdrawn” from the Fund. • The Court found that the date on which the employer ceased making payments to Fund A was the date for determining eligibility for employee benefits. • The Court also invoked a rule which governed the position where a participating employer wishes to transfer members to another Fund. • An appeal is pending, in which it will be argued that both the Fund and the employer acted in breach of the Fund’s rules. • cntd

26. Kitshoff(continued) • Some questions arising: • What would have happened if the employee had appealed to the Appeal Board against the Registrar’s approval of the transfer? • Can retrospective approval of a transfer defeat a “vested” right in terms of the rules? • Where an employer stops contributing to a fund in a manner not permitted by its rules, does this deprive the member of his/her rights? Compare this judgment to the SCA’s Sasol judgment. • cntd

27. South African Local Authorities Pension Fund v Mthembu and Another 20649/2015 [2015] ZASCA 205 • meaning of ‘full-time student’ for purposes of child’s pension • fund disqualifying child registered with UNISA on the basis that it was long-distance learning and therefore not full-time • was attempting course completion within the conventional 3 year period • SCA upholding HC decision that she qualified for child’s pension

28. BL v FL and another 2015 (4) SA 271 (FB) • Non-member spouse disputing calculation of pension interest paid to her by the member after his benefit accrued • fund not responding to requests for information concerning the benefit paid to the member and the pension interest at date of divorce (previous statement suggesting it was some R400 000 more than she received from the member) • proceedings launched in the form of a mandatory interdict obliging the fund to divulge the information sought – was not opposed by the fund • Court holding that the divorce order read with the relevant provisions of the Divorce Act established a clear right to the information and that there was no other remedy • Fund directed to furnish the information

29. Maswanganye v BaloyiNO (in her capacity as executrix in estate late Maggie Baloyi NO) and another [2015] JOL 34005 (GP) • requirements for customary law adoption • court had to decide whether the applicant had been adopted by her aunt in terms of African customary law in order to determine whether she was the sole heir to her estate • obvious implications for s37C allocations – may shift the basis from factual dependency (or no dependency) to s1(b)(iii) dependency • court heard expert evidence and held main requirement is that of publicity in the form of a symbolic ceremony to mark the life-altering consequences of such an event

30. in this case there was no suggestion the parents were unable or unwilling to take care of the applicant • mere fact of residence is insufficient and applicant failed to prove adoption had occurred • court held that giving away a child for adoption should not easily be inferred and stated • “Therefore, when considering a case of alleged adoption outside the statutory framework, especially where the biological parent(s) of a child are alive, a court should hesitate long, and be slow, to conclude in a given situation, that there has been an informal, de facto adoption.” Maswanganye continued

31. Rose v Rose and others, unreported judgment of the High Court (WC) Case No 14470/2011 dated 29 January 2015 • validity and consequences of an Islamic marriage when spouse is already party to a civil marriage (relevant to s7(7) orders assigning pension interest on divorce and possibly s37C) • parties married according to Islamic law, but husband also party to a civil marriage and it was therefore polygamous; annulment of the Islamic marriage already obtained • the parties submitted the legal questions as a stated case and the Court was required to determine whether: • (1) the Islamic marriage was valid; • (2) if proprietary relief was competent on divorce, and • (3) if the parties could competently obtain a ‘divorce’.

32. Rose v Rose (continued) • Court held • the marriage was invalid in terms of SA law; • however, following the Constitutional Court decisions in Daniels and Hassam, a marriage contemplated in the Divorce Act must include an Islamic marriage; • there should be no distinction between a monogamous and polygamous Islamic marriage • the prior civil marriage therefore did not constitute a bar to proprietary relief on divorce, including a claim for assignment of pension interest;

33. Rose v Rose (continued) • the parties were entitled to obtain a divorce even though the marriage had been dissolved by the Muslim Judicial Council • This was to ensure that the spouse was not deprived of the protection of the proprietary consequences of divorce

34. Distinctive Choice v Pension Funds Adjudicator and others, unreported decision of the High Court (WC) case no 19166/2014, 12 February 2015 • Fund repudiating death benefit as claim submitted 3 years late - employer unaware member had died, assuming he had absconded. • Adjudicator directing employer to pay amount of benefit, but no proof that complaint or determination ever served on employer. • Adjudicator declining to rescind determination. • On s30P appeal, court prepared to admit new evidence in respect of employer’s defence. Finding that there was no basis for liability under the rules or otherwise it disimissed the claim against it. • Matter remitted to the Adjudicator to consider relief against fund or insurer

35. Msimango v Ekurhuleni Metropolitan Municipality [2015] ZAGPPHC 559 s37D(1)(d)(ii) – fund withholding member’s benefit pending employer’s claim for loss caused by reason of dishonest conduct – member dismissed for misconduct on a charge of embezzlement The employer had instituted criminal proceedings shortly after the member’s dismissal but civil proceedings had not yet been instituted. Member alleged employer was deliberately delaying. Court in determining whether fund had exercised discretion properly held that, while there had been considerable delay in instituting civil proceedings, it would not be unjust to delay payment of the benefit pending the outcome.

36. Msimango (continued) • Comments: • court remarked that criminal proceedings could not determine the liability of the member under s 37D(1)(d)(ii). This is incorrect in view of s300O of the Criminal Procedure Act which enables a criminal court to issue a compensation order which is deemed to be a civil judgment • the facts which underpinned the fund’s decision to withhold the benefit are not evident from the judgment (other than that the member had been dismissed for misconduct and a criminal charge had been laid)

37. Sentinel Retirement Fund v Mtambo and others [2015] ZAGPPHC 423 Deduction for future maintenance in a lump sum s37D(1)(d)(iA) reads: ‘A registered fund may deduct from a member’s or deferred pensioner’s benefit, member’s interest or minimum individual reserve, or the capital value of a pensioner’s pension after retirement any amount payable in terms of a maintenance order as defined in s1 of the Maintenance Act, 1998’ (my emphasis) The courts have progressively extended the provisions to include orders for the deduction of future maintenance (see Mngadi, Zozoetc)

38. Sentinel v Mtambo(continued) • Here the fund was faced with duplicate and contradictory orders from the Maintenance Court which included a claim for future maintenance in a lump sum to the respondent. • held that, though orders concerning future maintenance may be made in specific circumstances, it was not competent for the fund to make it as a lump sum payment to the respondent, and the order was stayed. • not clear whether this amounts to a prohibition on lump sum payments in general or only in this case

39. Sentinel v Mtambo(continued) • This must be correct, but the judgment does not add clarity to the applicable principles. • the court was clearly not aware of s37D(1)(d)(iA) (governing deductions for maintenance, inserted after Mngadi was decided), and (erroneously) tried to accommodate the deduction under the proviso to s37A(1) • leads to a strained and unclear analysis of the interaction between the Maintenance Act and the Pension Funds Act • what is the test to order retention of a benefit for future maintenance payments (mala fides, unlikelihood of payment?) – in this case there was a dispute as to the bona fides of the maintenance debtor which could not be decided on affidavit

40. Sentinel v Mtambo(continued) • The Court also stated that the fund ought to have been joined in the proceedings • the fund must obviously be cited as the entity subject to the attachment or ‘garnishee’ order, but must it be ‘joined’ – ie given notice if the order does not seek to interdict it from making payment of a benefit? • is it required to participate in the proceedings • may it later apply to have the order suspended if it does not participate? • what are the practical implications of this for funds? (enormous administrative and cost burden – is this justified when it is simply an ‘agent for payment’?)

41. Sentinel Retirement Fund v Gilbert and others, unreported judgment of the High Court (GN) case No 61639/14, dated 29 May 2015 • Unlawful deduction in terms of s37A – fund successfully interdicting respondents from executing on a writ which did not • name the fund as the judgment debtor, and • would have contravened s37A as there was no legal basis for the deduction

42. Herbstv Sanlam Life Insurance Ltd [2014] ZAWCHC 30 • A divorce order granted in 1998 purported to assign future benefits that would accrue to the member in terms of his (fund-owned) retirement annuity policy. The fund was the Central Retirement Annuity Fund, underwritten by Sanlam. The order further provided that the applicant’s interest in the policy must be endorsed by Sanlam. • When the member retired from the fund, the fund: • deducted and paid to the applicant 50% of the member’s ‘pension interest’ calculated in terms of the formula in s1 of the Divorce Act • paid a cash benefit to the member, and • transferred the balance to a living annuity under ‘Glacier Plan’ for the benefit of the member

43. Herbst(continued) • The member subsequently died, and the balance of the annuity devolved on his appointed beneficiary. The applicant applied for a declarator that she was entitled to 50% of the proceeds of the living annuity and that ‘Sanlam’ was bound to give effect to the terms of the divorce order. • Held: • the terms of the divorce order were in conflict with the provisions of s37A and s37D insofar as they sought to bind the fund • Sanlam was obliged to act as it did (refusing to make payment of the ‘balance’ in terms of the court order)

44. Herbst(continued) • Comments: • (in passing) why did the fund pay out on the defective order at all? – this is a clear case where rectification would have been necessary • there is no clear distinction between the legal entities or the different frameworks that govern them (the fund is subject to the Pension Funds Act and a member-owned living annuity to the Long-term Insurance Act) • it is not apparent in what capacity Sanlam was acting – it was not the fund, it had no standing as fund administrator, and it is not clear whether or not it was the annuity provider – the court stated ‘Glacier Plan’ was a separate legal entity which should have been joined

45. Herbst(continued) • The outcome is undoubtedly correct, but the reasoning is open to criticism. The claim was launched to obtain payment from the entity providing the living annuity • if Sanlam was not the provider of the living annuity then that ought to have been the end of the matter – the applicant sued the wrong party • if Sanlam was the provider, then it is the provisions of the LTI Act and regs which must govern the dispute, not the PFA – the question is whether the divorce order directed a deduction in terms of the LTI framework, and, if so, whether this was permissible (it is not)

46. Mantshov Municipal Employee Pension Fund & Others [2015] ZAGPPHC 408 • The Adjudicator directed the Fund to provide the complainant with certain information and to pay a withdrawal benefit. • The complainant alleged that the Adjudicator’s order had not been complied with and sought orders in the High Court holding various persons in contempt of her order. The Court was requested to sentence the respondents to pay a fine, failing which an order of imprisonment should be imposed. • Section 30O(1) of the PFA provides: • “Any determination of the Adjudicator shall be deemed to be a civil judgment of any court of law…” • cntd

47. Mantsho(continued) • Section 30O(2) provides that a writ or warrant of execution may be issued and executed by the Sheriff after the expiry of a six week period. • The Court found that, in order to establish whether there was indeed contempt of court, it was important to establish whether the Adjudicator “can be accorded the status of a court”. It found that the Adjudicator is not a High Court or any other court. • “Accordingly, I am of the view that the Pension Fund’s Adjudicator is not a public judicial officer and his determination is not an order of court. Therefore there can be no contempt of court.” • The Court referred in passing to Wright v St Mary’s Hospital, which was about whether the (old) Supreme Court had jurisdiction to commit someone for contempt of an order of the (old) Industrial Court. Section 17(15) of the LRA, No 28 of 1956 provided that a decision of the Industrial Court “may be executed as if it is a decision…made by the Supreme Court.” • cntd

48. Mantsho(continued) • It was held in Wright that this provision did not convert an order of the Industrial Court into an order of the Supreme Court; and that the Supreme Court had no jurisdiction to commit someone for contempt of an Industrial Court order. • Comment: • Does a complainant have no remedy where a non-financial award of the Adjudicator is ignored? • In Wright, the Court held that s17(15) of the old LRA entitled the Industrial Court itself to commit for contempt anyone who is shown wilfully to have discharged one of its orders because (in its view) committal for contempt is a manner of “enforcing” an order. • Might the same apply to the Adjudicator? Or was Wright wrong? • cntd

49. Mantsho(continued) • Section 30V of the PFA provides: • “Any person who…(d) in connection with a complaint does anything which, if done before a Court of Law, would have committed contempt of court, shall be guilty of an offence…” • Is this applicable? If so, presumably a prosecution would lie (at the instance of the National Prosecuting Authority) before the ordinary criminal courts.

50. University of Pretoria Provident & Pension Fund v Du Preez, unreported judgment of the High Court (GN) Case No 49755/14, dated 15 September 2015 • The Funds’ board of trustees was not “satisfied” that the respondent was an “eligible spouse”, in terms of its rules. • The respondent’s appeal to the Adjudicator was upheld on the basis that she disagreed with the board’s application of the Fund’s rules to the facts of the case. • The Funds’ appeal to the High Court against the Adjudicator’s decision was upheld. • The Court found that the board reached its decision having “applied its mind” to all the relevant factors, particularly factual circumstances of the relationship between the respondent and the deceased. • cntd