Mashazi v African Products Retirement Benefit Provident Fund and Another

• Jurisdiction: South Africa
• Judge: Hussain J
• Judgment Date: 06 November 2001
• Docket Number: 12853/2001
• Court: Witwatersrand Local Division
• Hearing Date: 06 November 2001
• Citation: 2003 (1) SA 629 (W)

Hussain J:

The applicant, in his capacity as father and natural guardian of his minor children, Sifiso Mashazi and Buyile Mashazi (to whom I shall refer to as 'the minor children'), brought an application against the first and second respondents, claiming the following relief. I quote from the notice H of motion:

'(a)

That first respondent shall show cause why the decision of the board of trustees, taken on 12 February 2001 in respect of the allocation of deceased estate of Samuel Mashazi should not be set aside;

(b)

that first respondent supply the registrar/applicant with a copy of the transcript of the proceedings at I which the decision was taken;

(c)

that any benefits distributed by first respondent arising from the estate of Samuel Mashazi (deceased) be frozen pending the granting of a final order herein;

(d)

that respondent pay the costs of this application.'

What appears from the notice of motion is that the applicant: J

Hussain J

(1)

seeks a review of the first respondent's decision; and A

(2)

seeks an interdict against the first respondent.

The facts are as follows, all of which are either common cause or not seriously challenged:

1.

The applicant's brother, Samuel Mashazi (to whom I shall refer as 'the deceased'), was a member of the first respondent. In his lifetime the deceased completed what is known as 'a beneficiary B nominee form'. This document was signed on 17 December 1998 (I shall refer to this document as 'the nomination form').

2.

The nomination form, inter alia, provides for four columns, wherein the following information must be filled in:

'Name', 'Relationship to member', 'Date of birth' and 'Percentage of benefit'. The deceased filled out the required C information as follows: The minor children, in relation to the deceased, are described as 'son' and 'daughter'. Their dates of birth are filled in, and each was left 40% as a percentage of the benefit. The second respondent is named as 'Thandazile Mashazi'. She is described as 'wife', and was left 20% of D the benefit.

3.

In addition the nomination form contains the following declaration by the deceased:

'In the event of my death I designate the nominees below to receive the percentage of my benefit next to his/her/their names. I understand I may at any time change this nomination. I confirm that I E am aware that the trustees, in terms of s 37C of the Pension Funds Act, are obliged to ascertain who are my dependants at the date of my death, and to award a part of the benefit to my dependants in such proportions as the trustees may determine, having regard to the circumstances which apply at the time of my death. As a guide to the trustees I list my dependants hereunder, and also recommend the proportion of the benefit that each dependant should receive.' F

The significance of this declaration will become apparent elsewhere in this judgment.

4.

In the last paragraph of the nomination form the following is stated:

'In the event of underaged children (ie under 21 G years) being nominated as beneficiaries, state guardians.'

Thereafter follows the name, first names, identity number and relationship to the member of the said guardian. In this regard the deceased filled in the name of the second respondent as guardian to the minor children, and the relationship to the member is noted as H 'wife'.

5.

The deceased passed away on 12 May 2000. He did not leave a will.

6.

At a meeting of the trustees of the first respondent on 5 April 2001, the first respondent distributed the deceased's death benefit as follows: Sifiso Mashazi 20%, Buyile Mashazi 20%, second respondent 40%, Mrs Ngetheni Mashazi 20%. I

7.

The minor children were not the children of the deceased. According to the first respondent the children were 'given' to the deceased by the...