THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no: 452/09
In the matter between:

SAMANCOR GROUP PENSION FUND
Appellant

and

SAMANCOR CHROME
First Respondent

THE PENSION FUNDS ADJUDICATOR
Second Respondent

THE REGISTRAR OF PENSION FUNDS
Third Respondent

GERHARDUS SWANEPOEL
Fourth Respondent

Neutral citation:
Samancor Group Pension Fund v Samancor Chrome
(452/09) [2010] ZASCA 77 (27 May 2010)

Coram:
HARMS DP, MLAMBO, LEACH JJA and GRIESEL, SERITI
AJJA

Heard:
13 May 2010

Delivered:
27 May 2010

Summary:
Pension Funds Act 24 of 1956 – Application to set aside
determination by the pension funds adjudicator – six weeks
period provided for in section 30 P(1) of the Act – Long delay
and part implementation of the adjudicator’s determination
by Samancor Chrome. Doctrine of peremption - Samancor
Chrome
not
allowed
to
challenge
adjudicator’s
determination.

_____________________________________________________
ORDER
_____________________________________________________

On appeal from:
South Gauteng High Court (Johannesburg) (Swart AJ
sitting as court of first instance):

It is therefore ordered as follows:
1.
The appeal is allowed. Samancor (first respondent) is to pay the costs of
the Pension Fund (appellant) and Mr Swanepoel (fourth respondent), which costs
will include the costs of two counsel where so employed.
2.
The order of the high court is set aside and substituted with the following:
’The application is dismissed with costs which will include costs of two counsel
where so employed’.

_______________________________________________________
JUDGMENT
_______________________________________________________

Seriti AJA (Harms DP, Mlambo, Leach JJA and Griesel AJA concurring)

Introduction
[1] This appeal arises from a successful application in the high court to set
aside a determination by the adjudicator appointed in terms of section 30C of the
Pensions Fund Act 24 of 1956, as amended (the Act). The high court refused to
grant leave to appeal and the matter is now before this court with the leave of this
court.

[2] The high court granted an order declaring that the fourth respondent
(Mr Swanepoel) is entitled to compensation in terms of the provisions of rule 6.5
of the Fund Rules, directed the appellant (Pension Fund) to pay Mr Swanepoel

compensation calculated in terms of the Fund Rules and set aside the
determination made by the adjudicator.

[3] The issue in this appeal is whether the high court was correct to make the
order it made, taking into account the provisions of section 30P of the Act and the
delay before bringing the application before the high court.

Background facts
[4] Mr Swanepoel was employed by the first respondent (Samancor) as a
security officer from August 1991. His duties included amongst others, driving the
staff bus and an ambulance.

[5] On 22 March 1996, following a blackout while driving a staff bus, Mr
Swanepoel was sent to Dr Smith for medical examination and evaluation. In his
report dated 22 March 1996, Dr Smith stated that Mr Swanepoel was fit to
perform his duties. Mr Swanepoel was again examined by various medical
practitioners. In a medical report dated 20 November 1997, Drs Kriel, de Wall,
Spoelstra, Smith and Holland stated that he was ‘permanent af siek’ en ‘ongeskik
vir werk’.

[6] Samancor attempted to find a suitable position for Mr Swanepoel in their
company and offered him an alternative position. On 2 December 1997 Mr
Swanepoel wrote a letter to Samancor thanking them for their efforts to find him a
suitable position and advising them that he preferred to be paid out his medical
disability benefits and further that 31 December 1997 would be his last working
day.

[7] On or about 26 February 1998 Samancor submitted, on behalf of Mr
Swanepoel a ‘Notice of Withdrawal’ to the Pension Fund. The notice also
requested that Mr Swanepoel be paid his benefits, which were later paid to him.

[8] During July 1998 Mr Swanepoel sent a letter to Samancor requesting
them to lodge a claim with Sanlam, the underwriters of the fund. A medical report
by Dr Rossouw was attached to the said letter. Thereafter Mr. Swanepoel

communicated with Sanlam. He later found out that no claim was lodged on his
behalf.

[9] On 13 May 2002 Mr Swanepoel lodged a complaint with the adjudicator.
The complaint was against Samancor and the relief sought was that his employer
should ‘submit all the documents in connection with my sickness to the Pension
Fund so that they can make the decision whether I am disabled for work or not’.
After receiving a response from Samancor, on 15 February 2005 the adjudicator
made a determination in terms of which:

(a) Samancor was ordered to submit a disability claim and an ill-health retirement
claim on behalf of Mr Swanepoel to the Pension Fund.
(b) directing the Pension Fund to consider the claim and make a decision on Mr
Swanepoel’s   eligibility for disability and ill – health early retirement benefits;
(c) ordering that in the event that the claim is approved by the Pension Fund,
Samancor is to pay Mr Swanepoel the benefits he is entitled to.

[10] Samancor was advised about the adjudicator’s determination. On 29
August 2005, Mr Barnard, an insurance broker who was assisting Mr.
Swanepoel, sent Samancor the letter from the adjudicator during October 2005.
Samancor sent Mr Barnard disability claim forms for completion by Mr
Swanepoel. On 28 November 2005 the completed documents and statement by
Mr Swanepoel for disability claim to be submitted to Sanlam were sent to
Samancor.

[11]  On 9 February 2006 Samancor forwarded the completed application to the
Pension Fund. On 15 November 2006 the Pension Fund addressed a letter to
Samancor wherein the latter was advised that the trustees have agreed that they
would have approved the disability claim of Mr Swanepoel had it been submitted
at the time of Mr Swanepoel’s illness.

[12] Samancor did not pay Mr Swanepoel as determined by the adjudicator. Mr
Swanepoel had been employed in the Samancor’s chrome division which, in
June 2006 was sold in terms of a complicated scheme involving transactions
between a number of companies. Although the adjudicator’s decision had

ordered Samancor to pay Mr Swanepoel, it alleged that it felt that the new owner
of the chrome division could be responsible for paying him and that it was only in
February 2007 that it ascertained that it was the party obliged to fulfil the
adjudicator’s order. It then unsuccessfully attempted to settle the matter with Mr
Swanepoel. On 7 September 2007 Samancor wrote a letter to Mr Swanepoel
wherein it was stated, amongst others, that they have investigated the matter and
in their opinion, they are not indebted to him. The letter was addressed to Mr
Swanepoel in an attempt to dissuade him from taking the matter any further.

[13] On 1 April 2008, acting on behalf of Mr Swanepoel, Lategan, Viljoen and
Pretorius Attorneys, directed a letter of demand to Samancor. In the said letter
they demanded payment of the amount of about R1.5m as calculated by an
actuary, Dr R Koch, whose report was attached to the letter of demand.

[14] On 12 May 2008, Samancor launched an application to the high court. In
the notice of motion, it sought an order condoning its failure to launch the
application within the time period specified in section 30P(1) of the Act and the
setting aside of the adjudicator’s determination. The application was served on,
amongst others, the Pension Fund and Mr Swanepoel. The Pension Fund did not
participate in the application as no relief was sought against it.

[15] Section 30P(2) stipulates that the division of the high court mentioned in
subsection1 may consider the merits of the complaint made to the adjudicator
and on which the adjudicator’s determination was based and may make any
order it deems fit. The appeal contemplated in this section is an appeal in the
wide sense. It is a complete re-hearing of and fresh determination on the merits.
The court can consider the matter afresh and make any appropriate order it
deems justified by the facts – see Meyer v Iscor Pension Fund.1

[16] On 22 August 2008 the high court granted a rule nisi, calling upon the
Pension Fund to give reasons why it should not be ordered to pay Mr Swanepoel

1 2003 (2) SA 715 (SCA) at para 8.

the ill-health benefits calculated in accordance with rule 6.5 of the Pension
Fund’s Rules.

[17] The Pension Fund filed an opposing affidavit and, on the return date, the
rule nisi was discharged and the matter was argued on the merits. In the
opposing affidavit, the Pension Fund stated that it is a closed defined benefit
fund. It has not taken new members from 1 March 1993 and that it had only 918
members at that time. Much of the benefits payable to members are outsourced
by way of insurance arrangements concluded between the Pension Fund and a
third party insurance company. The Pension Fund pays premiums to the
insurance company and in return the insurance company assumes the risk,
amongst others, of paying employees who retire early due to ill-health. In case of
a possible claim, the Pension Fund must be notified timeously so that it, in turn
may timeously lodge a claim with the insurance company concerned. If the
Pension Fund cannot lodge a claim with the insurance company, then it means
that it should utilise its surplus funds to meet the financial obligation.

[18] The Pension Fund further stated that it is the employer’s duty to ensure
that a claim on behalf of its employees be lodged properly and timeously with it,
so that it can in turn lodge a claim with the insurance company timeously. This
will enable the insurance company to make the necessary payment. In the
present case, Samancor failed to lodge the claim of Mr Swanepoel with the
Pension Fund.

[19] As stated earlier, the high court granted Samancor condonation for the
late launching of the application. Section 30P(1) of the Act stipulates that any
party aggrieved by the determination of the adjudicator may apply to the high
court, within six weeks after the date of the determination, for relief. The
adjudicator’s determination was made on 15 February 2005 and Samancor
launched the application only on 12 May 2008. Samancor launched their
application almost three and a half years after the date of the determination by
the adjudicator.

[20] The high court, because of its inherent jurisdiction, has powers to govern
its own procedures. The said jurisdiction pertains not only to non-compliance with
the Rules of Court but also to statutory time limits – see Toyota South Africa
Motors (Pty) Ltd v Commissioner, SARS.2 In this matter the high court was
entitled to deal with Samancor’s application for condonation. As will appear
hereunder, the high court should not have granted condonation because of
prejudice to the Pension Fund and the fact that the appeal was perempted.

Prejudice to the Pension Fund
[21] When dealing with the application for condonation the high court stated
that the court should exercise its judicial discretion having regard amongst
others, to the degree of lateness, the explanation therefore, the prospects of
success and the importance of the matter to the parties. The high court further
said that if condonation is granted this would cause no prejudice to Mr
Swanepoel.

[22] The high court did not consider any possible prejudice to the Pension
Fund against whom it ultimately granted an order. In its opposing affidavit, the
Pension Fund fully sets out how its members would be prejudiced if it had to pay
a claim out of its funds without resorting to the insurance policies that it had in
place when Mr Swanepoel left the employment of Samancor.

[23] One of the factors that need consideration is the respondent’s interest in
the finalisation of the matter – see Beira v Raphaely-Weiner & others.3 The court
should have also considered the effect of the delay on the Pension Fund - see
Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae).4

[24] The high court did not take into account the interest of the Pension Fund.
It did not consider the unfair negative impact of its decision on the Pension Fund.

2 2002 (4) SA 281 (SCA) at para 10.
3 1997 (4) SA 332 (SCA) at 337 D-E.
4 2008 (2) SA 472 (CC) at para 20.

The Pension Fund, which had an insurance policy to cover the payment that Mr
Swanepoel was entitled to, was unable to lodge a claim with the insurance
company as Mr Swanepoel left the employment of Samancor almost three and a
half years prior to Samancor launching the application. Had the application been
launched within the six weeks period provided for in section 30P(1) of the Act,
the Pension Fund could possibly have lodged a claim with their insurance
company. Clearly the high court erred in granting condonation without taking into
account the interests of all parties involved especially the Pension Fund.

Doctrine of peremption
[25] In Gentiruco AG v Firestone SA (Pty) Ltd5 Trollip JA said: ‘The right of an
unsuccessful litigant to appeal against an adverse judgement or order is said to
be perempted if he, by unequivocal conduct inconsistent with an intention to
appeal, shows that he acquiesces in the judgment or order’. See also Natal
Rugby Union v Gould.6 In Standard Bank v Estate Van Rhyn,7 Innes CJ said:
‘If a man has clearly and unconditionally acquiesced in and decided to abide by
the judgment he cannot thereafter challenge it’.

[26] Section 30O(1) of the Act stipulates that any determination of the
adjudicator shall be deemed to be a civil judgment. In this case, as stated earlier,
the adjudicator made a determination on 15 February 2005. Thereafter
Samancor attempted to implement the adjudicator’s determination but almost
three and a half years later Samancor decided not to finalise the implementation
of the adjudicator’s determination, but rather to bring an application to have the
adjudicator’s determination set aside. It only decided to seek to do so when
execution was threatened. Its attempt to rely on alleged confusion as to whether
it or the new owner of the chrome division was responsible for payment is a red
herring as the sale only took place some 16 months after the adjudicator’s award,
during which time there could be no doubt that it was the responsible party. And
even after the so-called ‘confusion’ on its part in this regard had been cleared, it
never sought to avoid liability. Instead it attempted to settle the debt. In these

5 1972 (1) SA 589 (A) at 600 A-B.
6 1999 (1) SA 432 (SCA) at 443 E-G.
7 1925 AD 266 at 268.

circumstances there can be no doubt that it acquiesced in the adjudicator’s
award and its right to appeal was perempted. Samancor should not have been
allowed to challenge the determination of the adjudicator at the stage it launched
an application to set aside the adjudicator’s determination. To my mind, the high
court should have dismissed the application.

Appropriate Remedy
[27] The high court held that the order of the adjudicator cannot be enforced in
terms of section 30O(1) which deems any determination by an adjudicator to be
a civil judgment of any court of law. I disagree. The liability of Samancor has
been determined in the manner prescribed by the adjudicator and has become
liquidated as a result of the determination of the amount due by the fund. Mr
Swanepoel will be entitled, should Samancor refuse to pay, to issue a warrant of
execution based on the adjudicator’s award together with an affidavit setting out
the amount due in terms of the determination.

[28] For the above reasons, the application of Samancor should have been
dismissed and therefore the appeal must be upheld. As far as costs are
concerned, I can find no reason why the costs should not follow the result.
It is therefore ordered as follows:
1.
The appeal is allowed. Samancor (first respondent) is to pay the costs of
the Pension Fund (appellant) and Mr Swanepoel (fourth respondent), which costs
will include the costs of two counsel where so employed.
2.
The order of the high court is set aside and substituted with the following:
‘The application is dismissed with costs which will include costs of two counsel
where so employed’.

________________

W L SERITI
Acting Judge of Appeal

APPEARANCES:

APPELLANT:

A E Bham SC

Instructed by Mervyn Taback  Inc., Johannesburg

Webbers, Bloemfontein

FIRST RESPONDENT:
D  L Wood (with him J J Meiring)

Instructed by

Knowles Husain Lindsay inc., Johannesburg

McIntyre & van der post, Bloemfontein

FOUTH RESPONDENT: H P Higgins (with him D J van Heerden)

Instructed by Lategan, Viljoen & Pretorius, Pretoria

E G Cooper & Majiedt Inc., Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

27 May 2010

STATUS: Immediate

Samancor Group Pension Fund and Samancor Chrome

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The Supreme Court of Appeal today upheld an appeal against an order of Swart
AJ (South Gauteng High Court) wherein he ordered that the fourth respondent
(Mr Swanepoel) was entitled to compensation by the appellant for payment of
his early retirement benefits due to illness and setting aside the determination
made by the adjudicator.

Mr Swanepoel has been employed by the first respondent (Samncor) as a
security officer since August 1991. After a blackout while at work during 1996
Mr Swanepoel was sent to various doctors for examination and evaluation. One
test conducted by one doctor, Dr Kriel & others concluded that he was
permanently ill. Consequently to these findings Samancor tried to find an
alternative employment for him of whom he later refused and preferred to be
paid his medical benefits and thereafter he resigned.

As a result of his resignation Mr Swanepoel became entitled to his pension
benefits which were later paid to him.  He later lodged a claim to Sanlam which
was the underwriter of the fund for payment of his ill health benefits.

After he found out that there was no claim lodged on his behalf by Samancor he
lodged a complaint with the pension adjudicator and the adjudicator ordered
that his claim be considered and he be paid what is due to him. Samancor later
forwarded all the relevant documents necessary for the consideration of Mr
Swanepoel’s application to the Pension Fund. Samancor thereafter received a
response from the fund advising them that the trustees have agreed that they
will only consider Mr Swanepoel’s claim if it was submitted at the time of Mr
Swanepoel’s illness.

After failed attempts to settle the matter Mr Swanepoel approached some
certain attorneys to institute legal proceedings against Samancor. Subsequent to
that Samancor launched an application to the high court seeking an order
condoning its failure to launch such application within the time prescribed by
the Act and setting aside the adjudicator’s determination.

The high court granted a rule nisi calling upon the pension fund to give reasons
why it should not be ordered to pay Mr Swanepoel the ill health benefits. The
application was later opposed by the pension fund.

The high court granted the condonation as prayed by Samncor and set aside the
adjudicator’s determination.

The SCA found that the high court erred in granting the condonation because of
the prejudice to the Pension fund and because the appeal was perempted. The
SCA further found that Samancor should not have been allowed to challenge
the determination of the adjudicator and the high court should have dismissed
the application. For the above reasons the SCA allowed the appeal by the
Samancor group pension fund.

--- ends ---