THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case Nos. 623/98
627/98
In the matter between:
M P DALI & 47 OTHERS
Appellant
v
THE GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA
First Respondent
THE PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
Second Respondent
Coram:
GROSSKOPF, MARAIS, ZULMAN, STREICHER JJA and
MTHIYANE AJA
Heard:
11 MAY 2000
Delivered:
31 MAY 2000
Privatisation Venda Pension Fund - amounts due - retrospectivity of S 8 of Proc 9 of 1993(V)
JUDGMENT
STREICHER JA/

STREICHER JA:
[1] The appellants were members of the Venda Government Pension Fund
(“the Venda Pension Fund”). During 1992 each of them received payment of
an amount from the fund. A portion of those amounts was subsequently repaid
under pressure and under protest. In the court a quo the appellants claimed,
in separate actions,  payment of the amounts so repaid, on the basis that those
amounts were not owing to the Government of the Republic of South Africa,
first respondent (“the first claim"). The claims of 46 of the appellants were at
least partially successful, while those of two of the appellants, M S Madzhie
and P J Nembambula, were dismissed. In the same action the appellants also
asked that Proc R56 of 5 June 1995 (V) (“the second claim") and s 4(3) of
Proc 21 of 1996 (RSA) (“the third claim") be declared unconstitutional and of
no force and effect. These claims were also dismissed. With the leave of the court

a quo the respondents now appeal against its judgment in respect of the first
claims of the appellants who were successful; appellant P J Nembambula
appeals against the dismissal of his first claim; appellants P N L Mutshekwa,
G M Mutsila, L M Ramabulana, U M Ramaiite and S L Ramavhoya appeal
against the amount awarded to them in respect of their first claims; and all the
appellants appeal against the dismissal of their second and third claims.
[2] The Venda Pension Fund was established in terms of the Venda
Government Service Pensions Act 4 of 1979 (V) (“the Pension Fund Act”).
During 1990 a Council of National Unity took control of the government and
administration of the Republic of Venda. The Council assumed the power to
legislate for the Republic of Venda by way of proclamation in the Republic of
Venda Government Gazette. The legality of the Council and of its legislation
in the aforesaid manner is not in issue in this matter.

[3] On 14 February 1992, by way of Proc 2 of 1992 (V), the Pension Fund
Act was amended by the insertion of a s 10A. The section provided that any
active member of the pension fund, whose annual pensionable emoluments
exceeded the amount determined by the Director General for the Department
of Finance and Economic Affairs (“the Director General”) from time to time,
would have the right to elect that his accrued benefit be transferred, by means
of a lump sum payment, from the fund, for his benefit and in his name, to an
investment plan providing retirement benefits. Furthermore, it provided  that on
payment or transfer of a person’s accrued benefit and interest thereon, such
person’s membership of the pension fund would be regarded as terminated.
“Accrued benefit” was defined as the amount computed by the Director
General to have been the actuarial interest of the member in the pension fund
as on the date the option was elected. All the appellants exercised the option

and had amounts transferred to investment plans providing retirement benefits.
This scheme will be referred to as the first privatisation scheme.
[4] In terms of Proc 12 of 1992 (V), published on 8 May 1992, s 10A was,
with effect from 1 April 1992, amended by the addition of a ss 7 which
provided that members having exercised the option referred to would
automatically rejoin the fund as new members.
[5] S 2 of Proc 9 of 1993 (V) issued on 28 June 1993 substituted a new s
10A(1) for the existing s 10A(1). In terms of the new s 10A(1) all active
members of the pension fund were given the right to elect that his or her
actuarial share of the fund be transferred, by means of a lump sum payment,
for his or her own benefit and in his or her name to any investment plan or be
paid to him or her free of tax. “Actuarial share of the fund” was defined as the
value of each member’s share of the pension fund and stabilization account as

at 31 March 1992. S 7 of the proclamation provided that payments of benefits
would be made in accordance with a revised actuarial formula which would be
based on parameters that were consistent with a valuation to be performed by
an independent actuary and which would be published in the Government
Gazette on the day it was received from the independent actuary. In terms of s 4
any overpayment of money made to any active member, arising out of the
privatisation scheme, was to be recovered by the Government from such a
member, in a lump sum, as soon as practicable. This scheme will be referred
to as the second privatisation scheme.
[6] On 23 February 1994 Proc 1 of 1994 (V) was published in the Republic
of Venda Government Gazette. This proclamation purported to amend Proc
9 of 1993 inter alia so as to empower the councillor of any department to
place on leave without pay any active member who failed to repay an

overpayment and to deprive the courts of jurisdiction in respect of such action
against a member. On the same day a revised formula for privatiation in respect
of the pension fund, effective from 29 June 1993, was published in
Government Notice 3 of 1994 (V). According to the notice the funding level
of the pension fund had, for the purposes of the privatisation scheme, been
fixed at 75% of the actuarial reserves.
[7] Each of the appellants repaid a portion of the amount received as a result
of their election in terms of Proc 2 of 1992 (V). These payments were made
under protest as a result of  pressure exerted on them.
[8] In terms of s 230 of the Constitution of the Republic of South Africa,
Act 200 of 1993 (“the interim Constitution”), which came into operation on 27
April 1994, the Status of Venda Act 107 of 1979 (RSA), and which had
declared the territory known as Venda a sovereign and independent State, was

repealed and Venda became reincorporated into the Republic of South Africa.
It is common cause that as a result of such reincorporation the liabilities of the
Government of Venda became the liabilities of the Government of the Republic
of South Africa, the first respondent.
[9] During June 1994 each of the appellants received a second payment from
the Venda Pension Fund. The amounts of these payments were calculated by
the actuaries of the pension fund. They had been instructed to determine an
equitable final distribution amount for all the members of the fund.
[10] The Venda Supreme Court, on 6 June 1994, declared both Proc 1 of
1994 (V) and Government Notice 3 of 1994 (V) to be of no force and effect
(see Mulaudzi v Chairman, Implementation Committee 1995 (1) SA 513
(VSC).
[11] During March 1995 each of the appellants instituted an action against the

first respondent in terms of which payment of the amount repaid was claimed.
Subsequently the appellants conceded that the additional amounts received by
them in 1994 had to be deducted from their claims. All these actions were tried
together and it is in respect of these actions that the judgment under appeal was
given.
[12] In his opening address to the court a quo counsel for the appellants
informed the court that the appellants’ claim was based on the condictio
indebiti. Furthermore, he made it clear that the appellants contended that the
condictio indebiti was available in the case of a payment under duress of an
amount which was indebitum. In the result the main issues canvassed in the
court a quo in respect of the first claim were whether the payments made were
indebitum and whether they were made under duress.
[13] In the particulars of claim it was alleged that as a result of acts of

intimidation and threats by the Venda Government the repayments made by the
appellants were made under protest and without any admission of liability. A
number of the appellants testified as to the pressure exerted on them, inter alia
by the Government of Venda, to make these repayments. Eventually it was
conceded by the respondents that all the appellants paid under pressure and
under protest. During the argument before us the question was raised, from the
bench, whether, in the light of the admission, it was necessary for the
appellants, in order to recover the amounts repaid by them, to prove that they
were indebitum.  It may well be that, because of the admitted pressure it was
unnecessary for the appellants to prove that the repayments were made
indebitum. However, in the light of the fact that the case had all along been
conducted on the basis that the appellants’ cause of action was the condictio
indebiti we cannot be satisfied that the respondents would not be prejudiced

if the case were now to be decided on a basis never pleaded and not contended
for in the court a quo or in the heads of argument filed in the appeal. Should
the case be decided on that basis some of the appellants would succeed in
recovering substantially more than they are entitled to on the basis of a
condictio indebiti. The excess may have formed the subject of a counterclaim
had the appellants claimed repayment of the full amount on the basis of duress.
[14] The amounts paid to the appellants during 1992 were calculated on the
basis that they were only entitled to 91% of  the present value of the benefits
which they expected to become entitled to in respect of their period of service
i.e. 91% of their accrued benefits or actuarial interest. That was done because
the funding level of the pension fund was considered to be relevant and
because the funding level of the fund was assumed to be 91%. Some of the
appellants nevertheless received more and some less than the amounts they

were entitled to on the aforesaid basis. That was a result of the wrong data
having been used in the calculations. However, during the trial agreement was
reached on the amounts which were payable on the aforesaid basis as also on
the amounts received by the appellants in 1992, the amounts received in 1994
and the amounts repaid by each appellant.
[15] The respondents contended in the court a quo that a member’s actuarial
interest in terms of Proc 2 of 1992 had to be calculated by reference to the
funding level of the pension fund; that the funding level at the time of election
by the appellants had not been established; and that it can therefore not be
determined what amount was payable to them and hence whether or not the
amount repaid was not owing.
[16] The judge a quo held that the funding level was irrelevant and that the
appellants were, in terms of Proc 2 of 1992, entitled to 100% of their accrued

benefits. He nevertheless determined the extent to which repayments were not
owing by the appellants on the basis of figures which represented only 91% of
their accrued benefits. He did so because, in his words, “calculations (were)
for practical purposes . . . made on the 91% basis mistakenly and incorrectly
used when the initial payments were calculated”.
[17] It was not argued before us that the funding level of the pension fund
was relevant or, except in so far as bought back pensionable service had been
taken into consideration in the calculation of the benefits payable, that the
amounts awarded to the appellants were not indebitum. The finding by the
judge a quo that the appellants were entitled to 100% of their accrued benefits
was clearly correct. A member’s interest in the fund at a given time was the
present value of the benefits which he or she expected to  become entitled to
in respect of his or her period of service. A member’s actuarial interest could

not have been anything other than his or her aforesaid interest in the fund
determined according to actuarial principles. That is in my view the grammatical
meaning of the words “actuarial interest in the pension fund” and there is no
indication to be found in Proc 2 of 1992 that the legislature had a different
meaning in mind. According to an actuary, Prof Marx, whom the appellants
called as a witness, that is also how an actuary would have interpreted the
words . No evidence was tendered by the respondents to gainsay this evidence.
The benefits payable in terms of the Pension Fund Act and the regulations
thereto were independent of the funding level of the pension fund. It follows
that a member’s accrued benefit or actuarial interest in the fund was not
dependent upon the funding level of the fund.
The respondents’ appeal against the judgment in respect of the first

claim
[18] Three arguments were advanced by the respondents in respect of the
first claim. I shall deal with these arguments in turn.
[19] The respondents’ first argument was that the Venda Pension Fund had
a separate legal identity and personality; that it was the true receiver of the
appellants’ payments; and that it alone should have been sued.  In my view it
is not necessary to decide whether the Venda Pension Fund was a body with
a separate legal personality. The appellants alleged in their particulars of claim
that the repayments were made to the Government of Venda. Like most of the
other allegations by the appellants the respondents denied that allegation on the
basis that they had no knowledge thereof. At the commencement of the trial in
the court a quo the appellants undertook to produce a document setting out
what they considered to be the issues in respect of each individual claim. The

respondents’ counsel undertook, upon receipt of the document and in order
to define the issues more narrowly, to agree where he could and disagree where
he could not. Subsequently the appellants compiled a list of the points of
dispute on the pleadings. One of the disputes was what the amounts were that
had been calculated by the Director-General in terms of the first privatisation
scheme. Another one was that each appellant repaid the amount claimed from
him to the Department of Finance. Thereupon the respondents dealt with the
list as if it contained a request to indicate where they stood in respect of these
points. That appears clearly from the fact that their answer was either an
admission, a denial, a statement that they could not make the admission or that
the point was not admitted, a statement that the point remained an issue or in
dispute, or a reference to a document. In respect of the first of the
aforementioned questions the answer was: “See annexure ‘B’ already handed

to plaintiffs”. In respect of the second of the aforementioned questions the
answer was: “See annexure ‘B’”. Annexure “B” consists of four columns
headed “Plaintiff”, “Case No.”, “Amount Transferred 1992" and “Amounts
Repaid 1994". In the circumstances it is, in my view, clear that the reference to
annexure “B” was intended to be an admission that the amounts stated in
annexure “B” in the column “Amounts Repaid 1994" had been repaid in 1994.
In the light of the fact that the issue was whether these amounts had been
repaid to the Government of Venda, the admission that these amounts had been
repaid, in my view, by implication constituted an admission that they had been
repaid to the Government of Venda. That is also how the parties understood
the position as is clear from the fact that it was not submitted in the court a
quo that it had not been proved that the repayments had been made to the
Government of Venda.

[20] On behalf of the respondents it was submitted that it appears from the
evidence, and particularly the documentary evidence, that the repayments were
made by cheques in favour of the Venda Pension Fund and that the
Government of Venda acted merely as agent or administrator of the fund in
receiving the cheques. Furthermore, it was contended that this court was not
bound by the admission that the Government of Venda was repaid but could
decide the matter on the true facts before the court. Counsel for the
respondents submitted that the appellants would not be prejudiced if that was
done as it was clear, so they submitted, that the appellants could not have
tendered evidence to the effect that the Government and not the Venda Pension
Fund was the true receiver, had the admission not been made.
[21] The admission that the specified amounts were repaid to the Government
of Venda eliminated that fact as an issue in the action (see Water Renovation

(Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588 (A) at 605H-606B). Such
an admission can, if the plaintiff does not agree to an amendment involving the
withdrawal of the admission, only be withdrawn with the leave of the court. In
such cases the court will generally require to have before it a satisfactory
explanation of the circumstances in which the admission was made and the
reasons for seeking to withdraw it (see Bellairs v Hodnett 1978 (1) SA 1109
(A) at 1150G).
[22] However, counsel for the respondents submitted that the facts in this
case were not distinguishable from the facts in Minister van Justisie v Jaffer
1995(1) SA 273 (A) at 280E-H. In that case this court decided that the
respondent was not bound by an implied admission in his plea that he had
received payment of the money which was claimed by way of a condictio
indebiti. One Hoessein was the depositor of bail money for the benefit of an

accused. In terms of the Criminal Procedure Act 51 of 1977 he, and not Jaffer,
the respondent, was entitled to payment of the money upon the the accused
being rearrested. At Hoessein’s request, the registrar, in the mistaken belief that
the accused had been rearrested, drew a cheque for the payment of the bail
money in favour of Jaffer and handed the cheque to Jaffer. The court held that
the payment was made to Hoessein and not to Jaffer. As regards the admission
by Jaffer that payment had been made to him the court said (at 381 I) that there
could be no objection to the application of the correct legal principle to the
undisputed facts. The court was probably satisfied that the only reason for the
admission was a misunderstanding of the legal principle involved, that the facts
were incapable of disputation, known to both parties and that justice would be
best served by not holding Jaffer bound  to the admission in his plea. In these
respects the case is distinguishable from the present case.

[23] The admission in the present case may have been made deliberately with
full knowledge of the facts, on the basis that the relationship between the
Venda Pension Fund and the first respondent was such that it made no
practical difference whether the Venda Pension Fund or the first respondent
was ordered to repay the amounts claimed. Had the respondents raised in the
court a quo  the argument that the Venda Pension Fund was a separate juristic
person and that it, and not the Government of Venda, was the true receiver, as
they should have (assuming it to be a valid argument), the appellants would in
all probability have applied to join the Venda Pension Fund or, at a later stage,
its successor, the Government Employees Pension Fund. Such an application
may have necessitated a postponement of the matter. This may be the reason
why the argument was not raised at that stage. However, one can only
speculate as to the reason for the admission. By the time the respondents raised

the argument that the Venda Government was not the true receiver of the
money repaid by the appellants, the record of the proceedings in the court a
quo as well as the appellants’ heads of argument had already been filed in this
court.  By then it was too late for the appellants to seek to join the Venda
Pension Fund or its successor as an alternate defendant. In the circumstances
it would, in my view, be unfair to the appellants not to hold the respondents
bound to the admission made by them.
[24] There is also another factor distinguishing the present case from Jaffer.
During the trial the parties concluded an agreement recorded in a deed of
settlement in which they agreed that the court was to regard the facts stated in
“annexures A and B” as correct. The document referred to as “annexures A
and B” consists of a number of columns, inter alia, columns headed
“Plaintiff” and “Amounts Repaid 1994" . Except in the case of appellants S S

Dzumba and S P Nethamba the amounts agreed were the same as those
previously admitted by the respondents. For the same reasons why the
aforesaid admission of the amounts repaid constituted an admission that those
amounts had been repaid to the Government of Venda, the agreement
constituted an agreement that the amounts repaid were repaid to the
Government of Venda. This agreement, for as long as it stood, put it beyond
the power of the respondents to deny that the amounts repaid were repaid to
the Government of Venda.
[25] Whatever the reason may have been, the present case was conducted in
the trial court, by the appellants as well as the respondents, on the basis that the
Venda Pension Fund was not a juristic person separate from the Government
of Venda. For this reason the appellants would also not have been entitled, and
never contended that they were entitled, to claim that the full amounts repaid

to the Government of Venda were indebitum by reason of the fact that they
may have been owing to the Venda Pension Fund but not to the Government
of Venda. In the court a quo the case was therefore decided on the basis that,
in so far as any amount was owing by the appellants to the Venda Pension
Fund, the amount was owing to the Government of Venda and should, in my
view, in this court be decided on the same basis (cf A J Shepherd (Edms) Bpk
v Santam Versekeringsmaatskappy Bpk 1985 (1) SA 399 (A) at 413F - 415D).
[26] For purposes of his second argument counsel for the respondents
assumed that the Venda Pension Fund was not a juristic person and that the
Venda Government received the amounts repaid on behalf of that fund and
kept them separate from the balance of its monies. On that basis he submitted
that even if the amounts repaid were repaid to the Government of Venda the
liability to repay them would have passed to the Government Employees

Pension Fund. In this regard he relied on s14(2) of the Government Employees
Pension Law, 1996 in terms of which all liabilities of the Venda Pension Fund
passed to the Government Employees Pension Fund, which, in terms of that
law, is a juristic person.
[27] In the court a quo the issue was whether the repayments by the
appellants had been made to the Government of Venda and whether the
amounts repaid were owing to the respondents. It was never contended in the
pleadings or otherwise that if they were so paid, and if a liability on the part of
the Government of Venda arose to refund the amounts paid to the extent that
they were not owing by the appellants, such liability, subsequently, and
because of some statutory provision, passed to another person. Whether it did
so was therefore never an issue in the case and cannot, at this late stage, be
made an issue. Supreme Court Rule 22(2) requires a defendant to clearly and

concisely state all material facts on which he or she relies. In Yannakou v
Appollo Club 1974 (1) SA 614 (A) at 623G Trollip JA said in respect of the
similarly worded Magistrates’ Courts’ Rules:
“Hence, if he [the defendant] relies on a particular section of a statute,
he must either state the number of the section and the statute he is relying
on or formulate his defence sufficiently clearly so as to indicate that he
is relying on it . . .”
[28] I shall now deal with the respondents’ third argument in respect of the
appellants’ first claim.
S 8 of Proc 9 of 1993 read as follows:
“(1)
For the purposes of the privatization scheme no period of any
buy back of pensionable service shall be taken into consideration
in the calculations of the benefits payable to any active member
of the Fund in terms of this Proclamation: Provided that any
period of service which is considered for privatization, shall be
excluded for any new buy back of pensionable service or
retirement.
(2)
The admission to the Fund by any active member shall be

reckoned from the date not earlier than the date of engagement or
assumption of duty.”
[29] At the time when Proc 9 of 1993 was issued the appellants had already
made an election in terms of Proc 2 of 1992 and had already received payment
of what was considered to be their accrued benefits. The periods of
pensionable service bought back by them were taken into account in
determining these amounts. Counsel for the respondents submitted that
although Proc 9 of 1993 was in part devoted to the consequences of the future
publication of the “revised formula”, s 8(1) thereof was retrospective in its
terms and effect with the result that to the extent that the amounts paid to the
appellants included accrued benefits as a result of bought back service those
amounts were repayable by the appellants.
[30] Proc 9 of 1993 introduced a new privatisation scheme in terms of which

a member could elect to have his actuarial share of the Venda Pension Fund
transferred in his or her name to an investment plan or to have it paid by
cheque. “Actuarial share” in terms of this proclamation was something quite
different from the “actuarial interest” the appellants were entitled to in terms of
Proc 2 of 1992. It had to be determined as at 31 March 1992 in accordance
with a revised formula which was to be calculated on parameters that were
consistent with a valuation (presumably of the funding level of the fund) by an
independent actuary. The actuarial interest in terms of Proc 2 of 1992, on the
other hand, had to be determined as at the date of the election and was, as
already indicated, not dependent on the funding level of the fund. It is a general
rule of statutory interpretation that a provision in a statute should not be
interpreted as having retrospective effect unless there is an express provision
to that effect or that result is unavoidable on the language used (see National

Iranian Tanker Co v MV Pericles GC 1995 (1) SA 475 (A) at 483H-484A).
There is no express provision in Proc 9 of 1993 to the effect that s 8 was to be
applied retrospectively and the language of the proclamation contains no
indication to that effect. To interpret the section retrospectively would be
prejudicial to the appellants, not only because it would deprive some of them
of a vested right, but also because, having invested the amount received, they
would be penalized for having to terminate the investment prematurely. If the
proclamation was intended to achieve that result one would have expected the
legislature to have made it clear. A further indication that that was not the
intention is to be found in the fact that in s 12, where the legislature wanted the
section to operate retrospectively, it specifically said so. It is therefore my view
that the section did not operate retrospectively.
[31] In the result the respondents’ appeal in respect of the first claim should

be dismissed.
The appeal of appellants Nembambula, Mutshekwa, Mutsila,
Ramabulana, Ramaiite and Ramavhoya against the judgment in respect
of the first claim
[32] It is common cause between the parties that appellants Nembambula,
Mutshekwa, Mutsila, Ramabulana, Ramaiite and Ramavhoya all received more
than what they would have been entitled to if their actuarial interest had to be
calculated on the basis that it had to be reduced pro rata to the assumed
shortfall of 9% in the funding level of the fund. Although the court a quo found
that no such reduction should have been made the amount awarded to each
appellant was determined on that reduced basis because the calculations by the
actuary Marx, of the amount to which each of the appellants was entitled, had
been done on that basis. In this regard the court a quo erred. Each appellant
was entitled to 100% of his or her actuarial interest and to judgment in an

amount  calculated on that basis, but not exceeding the amount repaid or
claimed by such appellant less the additional amount received in 1994. The
calculation   can still be done on the basis of the agreed figures. It should be
done as follows:
100/91 x “1992 Herberekening Van Wat Bedrag Behoort Te Gewees
Het” (column 4 of the “Hersiene aanhangsel ‘B’ prepared by Marx)
Minus
“Amount transferred 1992" (as per the agreed annexures A & B)
“Plus amount received 1994" (as per the agreed annexures A & B)
“Minus amounts repaid 1994" (as per the agreed annexures A & B).
So calculated appellant Nembambula was entitled to judgment in an
amount of R72 146,30, Mutshekwa to R62 593,13, Mutsila to R170 080,88,
Ramabulana to R68 030,67, Ramaiiti to R614 472,00 and Ramavhoya to

R327 864,00.
[33] The appeal of appellants Nembambula, Mutshekwa, Mutsila,
Ramabulana, Ramaiite and Ramavhoya should therefore succeed.
Appellants’ appeal in respect of the second claim
[34] On 5 June 1995 the President of the Republic of South Africa, the
second respondent, issued Proc 56 of 1995 in terms of which he purported to
make regulations under s 11 of the Venda Government Service Pensions Act,
1979. He stated that he was acting under powers vested in him under s 235(7)
of the interim Constitution. Sections 2 and 3 of this proclamation read as
follows:
“2
Any member of the fund, who made an election in terms of
section 10A(1) of the Act, shall be paid from the Fund, an
amount equal to his or her accrued benefit in the Fund.
The payment of any amount in terms of regulation 2, shall be

subject to -
(1)
the premise that the funding level of the Fund is, and at all times
was 75%.”
[35] The appellants thereafter amended their particulars of claim so as to add
an additional claim, the second claim,  namely that Proc 56 of 1995 be declared
unconstitutional and of no force and effect. The court a quo dismissed the
appellants’ claim. It held that the appellants were not affected by the
proclamation.
[36] Proc 56 of 1995 provides a formula for the calculation of an actuarial
share. “Actuarial share” is defined as an amount calculated by means of a
formula which in turn is, by definition, based on emoluments as at 29 March
1992. Read with the Pension Fund Act and Proc 9 of 1993 the actuarial share
referred to was the actuarial share of a member as at 31 March 1992. Proc 56
of 1995 does not provide a formula for the calculation of the plaintiffs’

“actuarial interest” as at the date of their election in terms of Proc 2 of 1992 to
have that interest transferred. It did not affect any of the appellants. They had
already made an election in terms of Proc 2 of 1992. Having made their election
to have their accrued benefits transferred to an investment plan, thereby
terminating their membership (only to be reinstated as members as from 1 April
1992), they no longer had an actuarial share in the fund as at 31 March 1992.
No case has been made out by the appellants that they were in any other way
affected by the proclamation. In the circumstances the court a quo correctly
dismissed the appellants’ claim that Proc 56 of 1995 be declared
unconstitutional. The appellants’ appeal in respect of claim 2 should therefore
be dismissed.
Appellants’ appeal in respect of the third claim

[37] On 19 April 1996 and in terms of Proc 21 of 1996 the second
respondent, purporting to act in terms of s 237(3) of the interim Constitution,
promulgated the Government Employees Pension Law, 1996 and determined
that it would commence on 1 May 1996. In terms of s 14 (1)(a) a previous fund
(which by definition in s 14(5) included the Venda Pension Fund) was to be
discontinued with effect from a date determined in respect of that fund by the
Minister of Finance. The Minister determined 1 May 1996 as the date from
which the Venda Pension Fund would be discontinued. S 4(3) provides as
follows:
“Any person who immediately before the date determined in terms of
14(1)(a) in respect of a previous fund, is a member or pensioner of tha
fund, shall with effect from that date be a member or pensioner of the
Fund.”
“The Fund” is the Government Employees Pension Fund previously known as

the Government Service Pension Fund established by s 3 of the Government
Service Pension Act, 1973. S 14(2) provides as follows:
“All assets, including any right to claim any amount, and all liabilities,
including any obligation to pay any pension, related benefit or any other
amount in terms of any law, of a previous fund in respect of which a
date is determined under subsection (1), shall with effect from that date
pass to and vest in the Fund.”
[38] As a result of these provisions the appellants amended their particulars
of claim so as to add a third claim in terms of which they asked that s 4(3) be
declared unconstitutional. They alleged that s 4(3) of the Government
Employees Pension Law,1996 was unconstitutional in that the appellants were
being prejudiced and discriminated against vis-à-vis public servants who
remained in the Venda Pension Fund and who did not take part in the
privatisation of the fund and because it did not make provision for the payment
of a fair pension to the appellants. The appellants were allegedly prejudiced

because they had not been warned that they would receive only 91% of their
accrued benefits and could even, presumably in terms of the subsequent
proclamations referred to, have to repay some of what they received.
[39] There is no merit whatsoever in these contentions. The appellants were,
in terms of Proc 2 of 1992 entitled to 100% of their accrued benefits, and they
themselves never contended otherwise. Furthermore, the subsequent
proclamations referred to did not affect the appellants' entitlement in terms of
Proc 2 of 1992. In any event, if appellants find themselves in a worse position
than civil servants who had not elected to take part in the privatisation schemes,
that is a result of their election to take part therein and not of the provisions of
s 4(3) of the Government Employees Pension Law, 1996. The court a quo
therefore correctly dismissed the appellants’ third claim.
Costs

[40] The appellants asked that the respondents’ appeal in respect of the first
claim be dismissed with costs on the attorney and own client scale. Counsel
for the appellants submitted that such an order was justified because
unfounded points, at variance with the manner in which the case was
conducted in the court a quo, were, for the first time, raised on appeal.
Appellants specifically objected to the raising of a new point in revised heads
of argument which were received by them less than 48 hours before the hearing
of the appeal.
[41] In my view it was not improper of the respondents to raise the new
points.  They did not do anything underhand in the process. It is for the court
to decide whether there is merit in the points raised. In any event, there was
considerably more substance in the points so raised than the arguments
advanced by counsel on behalf of the appellants in the appellants’ appeals in

respect of their second and third claims. Furthermore, the revised heads of
argument were of assistance to the court in that a multitude of points raised in
the heads of argument originally filed, were discarded. In the circumstances the
appellants are not entitled to a special costs order.
[42] Counsel for the appellants also submitted that, in the event of the
appellants being unsuccessful in their appeal in respect of their second claim,
costs should not be awarded against them. They submitted that the second
claim was necessary because the respondents had contended that Proc 56 of
1995 also applied to the appellants’ election in terms of Proc 2 of 1992. There
is no merit in this submission. The appellants’ answer to the respondents’
contention should simply have been that Proc 56 of 1995 did not apply to their
election.
[43] In the result the following order is made:

The respondents’ appeal against the court a quo’s judgment in
respect of the first claim is dismissed with costs, including the
costs of two counsel.
2.1
The appeals of appellants,  Mutshekwa, Mutsila,
Ramabulana, Ramaiite and Ramavhoya in respect of the
first claim is upheld with costs including the costs of two
counsel.
2.2
Par (1) of the order of the court a quo in respect of their
first claims is replaced with the following order:
(1)
Claim 1: Defendants are ordered to pay to plaintiff
an amount of R62 593,13 (in the case of
Mutshekwa), R170 080,88 (in the case of Mutsila),
R68 030,67 (in the case of Ramabulana), R614

472,00 (in the case of Ramaiite) and R327 864,00 (in
the case of Ramavhoya) together with mora interest
thereon at the applicable rate from 4 March 1994 to
date of payment.
3.1
The appeal of appellant Nembambula in respect of
the first claim is upheld with costs including the
costs of two counsel.
3.2
The order of the court a quo in respect of appellant
Nembambula is replaced with the following order:
(1)
Claim 1: Defendants are ordered to pay to plaintiff
R72 146,30 together with mora interest thereon at
the applicable rate from 4 March 1994 to date of
payment.

(2)
Defendants are ordered to pay plaintiff’s costs
consequent upon claim 1.
(3)
Claims 2, 3 and 4: These claims are dismissed with
costs.
(4)
The implication of the costs orders are set out in
and the reasons for this judgment are given in the
matter of M P Dali v the defendants case no
6528/95.
The appellants’ appeal against the court a quo’s judgment in
respect of the second claim is dismissed with costs including the
costs of two counsel.
The appellants’ appeal against the court a quo’s judgment in
respect of the third claim is dismissed with costs including the

costs of two counsel.
_____________________
P E STREICHER
JUDGE OF APPEAL
AGREE:
GROSSKOPF JA
MARAIS JA
ZULMAN JA
MTHIYANE AJA