Meuman & Heyneke (Pty) Ltd v Joint Municipal Pension Fund

• Jurisdiction: South Africa
• Judge: Cohen AJ
• Judgment Date: 05 May 1978
• Citation: 1978 (4) SA 652 (W)
• Hearing Date: 03 May 1978
• Court: Witwatersrand Local Division

Cohen AJ:

The defendant has excepted to, and in the alternative applied to strike out, the plaintiff's amended claim as formulated in para 2 of the particulars of plaintiff's claim and para 1 (a), (b) and (c) of its replication.

H The claim, as originally pleaded, was that the defendant, a statutory body "established under the Local Government Superannuation Ordinance 16 of 1958 (T)", contracted with the plaintiff in an exchange of letters over the period 22 July 1974 to 7 August 1974 to guarantee payment to the plaintiff for work done by it under a building contract with Bree Holdings (Pty) Ltd and is obliged to pay the claim.

In para 3 (c) of its plea, the defendant alleged:

Cohen AJ

"(i)

The powers of the defendant are defined and limited by the terms of the Local Government Superannuation Ordinance 1958 (T), including in particular s 8 thereof.

(ii)

In terms of the said Ordinance it was at all material times A beyond the powers of the defendant, or of the committee or of any officer of the defendant, to enter into the said agreement.

(iii)

Alternatively, it was at all material times beyond the powers of the defendant, or of the committee, or of any officer of the defendant to do so without the approval of the Administrator of B the Transvaal, which approval was not obtained."

The plaintiff thereafter amended its claim to allege that the defendant was

"established under s 79 ter of the Local Government Ordinance 17 of 1939 (T) read with the regulations made thereunder with effect from 1 July C 1974, and promulgated in the Provincial Gazette Extraordinary 3724(A) dated 12 November 1974".

The plaintiff replicated to the aforesaid plea that:

"(a)

At all times material to this action the powers of the defendant have been defined by the terms of the regulations relating to the D Joint Municipal Pension Fund (T), which were duly made by the Administrator with effect from 1 July 1974 and promulgated in the Provincial Gazette Extraordinary 3724(A) dated 12 November 1974.

(b)

In terms of s 2 (3) of the said regulations the defendant is a body corporate capable, inter alia, of performing all acts which E may be necessary for or ancillary to the exercise of its powers or the performance of its functions in terms of the said regulations.

(c)

In terms of s 8 (1) (e) of the Local Government Superannuation Ordinance 16 of 1958 (T), the committee of management of the defendant had duly invested monies of the defendant on first F mortgage bond upon the property referred to in para 3 (a) of the particulars of plaintiff's claim.

(d)

In terms of s 7 (p) of the Local Government Superannuation Ordinance 16 of 1958 (T), alternatively in terms of s 15 (1) (p) of the aforesaid regulations, and in either case read with s 2 (3) of the regulations, it was within the powers of the defendant, and G more particularly its committee of management, to enter into the said agreement.

(e)

Accordingly the plaintiff denies the allegations contained in para 3 (c) of the defendant's plea."

This led to the exception which raises the issue whether the defendant's H powers are to be determined by reference to the regulations promulgated in the Provincial Gazette Extraordinary 3724(A) of 12 November 1974, as Notice 473 of 1974, and which I will refer to as the "74 regulations", or the Local Government Superannuation Ordinance 1958 which I shall refer to as the "58 Ordinance".

The determination of this issue depends upon the validity of the repeal of the 58 Ordinance and the promulgation of the 74 regulations.

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