Natal Joint Municipal Pension Fund v Endumeni Municipality

• Jurisdiction: South Africa
• Judgment Date: 16 March 2012
• Citation: 2012 (4) SA 593 (SCA)

Natal Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593 (SCA)

2012 (4) SA p593

Citation	2012 (4) SA 593 (SCA)
Case No	920/2010; [2012] ZASCA 13
Court	Supreme Court of Appeal
Judge	Farlam JA, Van Heerden JA, Cachalia JA, Leach JA and Wallis JA
Heard	February 23, 2012
Judgment	March 16, 2012
Counsel	KJ Kemp SC (with HS Gani) for the appellant.; M Pillemer SC (with P Blomkamp) for the respondent.

Flynote : Sleutelwoorde B

Statute — Construction — Proper approach to interpretation of documents — Process objective, not subjective, and unrelated to whatever intention those selecting words had — Point of departure language of provision itself, C read in context and with regard to purpose and background of document's preparation and production — Where more than one meaning possible, each possibility to be weighed in light of these objective factors.

Local authority — Pension fund — Claim for payment of adjusted contribution made by local authority — Whether permitted by regulations — Whether D proviso to relevant regulation valid and permitting fund's claim — Whether requirements for invocation of proviso satisfied — Pension Funds Act 24 of 1956, s 12(1).

Headnote : Kopnota

Over the last century there have been significant developments in the law relating E to the interpretation of documents, both in this country and in others that follow similar rules to our own. The present state of the law can be expressed as follows: Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole F and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed; and the material known to those responsible for its production. Where more than one meaning is possible, each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible G meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. Judges must be alert to, and guard against, the temptation to substitute what they regard as reasonable, sensible or businesslike for the words actually used. To do so in regard to a statute or statutory instrument is to cross the divide between interpretation and legislation; in a contractual context it is to make a H contract for the parties other than the one they in fact made. The 'inevitable point of departure is the language of the provision itself', read in context and having regard to the purpose of the provision and the background to the preparation and production of the document. If interpretation is, as all agree it is, an exercise in ascertaining the meaning of the words used in the I statute and is objective in form, it is unrelated to whatever intention those responsible for the words may have had at the time they selected them. (Paragraphs [18] and [23] at 603E – 604D and 608E – F.)

The court identified the 'primary question for determination' as the meaning of the proviso to the definition of 'pensionable emoluments' in reg 1(xxi)(h) of the regulations governing the operations of the fund concerned. It reads as follows: J

2012 (4) SA p594

A 'Provided further that, should at any time the pensionable emoluments of a member including a section 57 contract employee, increase in excess of that assumed by the actuary from time to time for valuation purposes in terms of Regulation 13, then the committee on the advice of the actuary, may direct that the local authority employing such member pay an adjusted contribution in B terms of Regulation 21 to the Fund. . . .'

Applying the proper approach as set out above to the construction of the proviso, the court found for the appellant: that in terms of the proviso it was entitled to direct the respondent to pay an adjusted contribution to the fund arising out of the increase in the member's pensionable emoluments. C (Paragraphs [27] – [44] at 610D – 617C).

Cases Considered

Annotations:

Case law

Southern Africa

Associated Institutions Pension Fund and Another v Le Roux and Others 2001 (4) SA 262 (SCA): dictum in para [16] compared D

Barkett v SA Mutual Trust & Assurance Co Ltd 1951 (2) SA 353 (A): dictum at 363 applied

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): dictum in paras [135] – [139] compared

Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School 2008 (5) SA 1 (SCA): dictum in paras [16] – [19] applied

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [90] applied E

Bertie van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978): dictum in para [31] applied

Ebrahim v Minister of the Interior 1977 (1) SA 665 (A): dicta at 677 – 678 compared F

Government of the Republic of South Africa v Ngubane 1972 (2) SA 601 (A): dictum at 608D – E compared

Hanekom v Builders Market Klerksdorp (Pty) Ltd and Others 2007 (3) SA 95 (SCA): dictum in para [7] applied

Jaga v Dönges NO and Another; Bhana v Dönges NO and Another 1950 (4) SA 653 (A): dictum at 662G – 663A applied G

KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) ([2009] 2 All SA 523): dictum in para [39] applied

Manyasha v Minister of Law and Order 1999 (2) SA 179 (SCA): dictum at 185B – C compared H

Melmoth Town Board v Marius Mostert (Pty) Ltd 1984 (3) SA 718 (A): dictum at 728F – H applied

Mphosi v Central Board for Co-operative Insurance Ltd 1974 (4) SA 633 (A): referred to

Protective Mining & Industrial Equipment Systems (Pty) Ltd (formerly Hampo Systems (Pty) Ltd) v Audiolens (Cape) (Pty) Ltd 1987 (2) SA 961 (A): dictum at 991F – H compared I

Rex v Detody 1926 AD 198: dictum at 203 applied

Rex v Schonken 1929 AD 36: dictum at 42 applied

S v Sweers 1963 (4) SA 163 (E): compared

S v Zuma and Others 1995 (2) SA 642 (CC) (1995 (1) SACR 568; 1995 (4) BCLR 401): dictum in paras [17] and [18] applied J

2012 (4) SA p595

Shell and BP South African Petroleum Refineries (Pty) Ltd v Murphy NO and Others A 2001 (3) SA 683 (D): referred to

South African Airways (Pty) Ltd v Aviation Union of South Africa and Others 2011 (3) SA 148 (SCA) ([2011] 2 BLLR 112): dictum in paras [25] – [30] applied

Standard Bank v Estate Van Rhyn 1925 AD 266: referred to B

Summit Industrial Corporation v Claimants against the Fund Comprising the Proceeds of the Sale of the MV Jade Transporter 1987 (2) SA 583 (A): dictum at 596G – 597B compared

Swart v Smuts 1971 (1) SA 819 (A): referred to

TEK Corporation Provident Fund and Others v Lorentz 1999 (4) SA 884 (SCA) ([1999] 4 All SA 297): dictum in para [16] compared C

Town Council of Springs v Moosa and Another 1929 AD 401: referred to

Venter v Rex 1907 TS 910: applied.

England

Aron Salomon v A Salomon & Co Ltd [1897] AC 22 (HL): dictum in para [38] applied

Chartbrook Ltd v Persimmon Homes Ltd and Another [2009] UKHL 38 ([2009] 4 All ER 677 (HL)): D dicta in paras [14] and [15] applied

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98 (HL): dictum at 114 – 115 applied

R v Secretary of State for the Environment, Transport and the Regions and Another, Ex parte Spath Holme Ltd [2001] 2 AC 349: dictum at 395 applied E

Rainy Sky SA and Others v Kookmin Bank [2011] UKSC 50 ([2012] Lloyds Rep 34 (SC)): dicta in paras [21] and [28] applied

Re Sigma Finance Corp [2008] EWCA Civ 1303 (CA): dictum in para [98] applied

Re Sigma Finance Corp (in administrative receivership) and In Re the Insolvency Act 1986 [2009 UKSC2 ([2010] 1 All ER 571 (SC)): dictum in para [12] applied. F

Australia

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ((1985) 157 CLR 309): dictum at 315 applied

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228: dictum in paras 430 – 433 applied G

Richardson v Austin [1911] HCA 28 ((1911) 12 CLR 463): dictum at 470 applied

Singh v The Commonwealth [2004] HCA 43 ((2004) 222 CLR 322): dictum in para [19] applied.

Case Information

Appeal from KwaZulu-Natal High Court, Pietermaritzburg, against H finding that appellant not allowed to direct respondent to pay adjusted contribution to pension fund.

KJ Kemp SC (with HS Gani) for the appellant.

M Pillemer SC (with P Blomkamp) for the respondent. I

Cur adv vult.

Postea (March 16).

Order

1.

The appeal succeeds with costs, such costs to include those consequent upon the employment of two counsel. J

2012 (4) SA p596

2.

A The order of the trial court is set aside and replaced by the following order:

'Judgment is granted in favour of the plaintiff and against the defendant for:

1.

Payment of the sum of R2 573 740;

2.

B Interest on the said sum of R2 573 740 at a rate of 15,5% per annum from 15 October 2007 to the date of payment;

3.

Costs of suit, such costs to include those consequent upon the employment of two counsel.'

Judgment

Wallis JA (Farlam JA, Van Heerden JA, Cachalia JA and Leach JA C concurring):

[1] Two pension funds, the Superannuation Fund and the Retirement Fund, [1] and one provident fund, the Provident Fund, [2] established by legislation for employees of local authorities in KwaZulu-Natal, are managed in terms of a single set of regulations. They are referred to...