Trustees African Explosives Pension Fund v New Hotel Properties (Pty) Ltd; Trustees African Explosives Pension Fund v Nestel

• Jurisdiction: South Africa
• Judge: Ludorf J
• Judgment Date: 03 May 1961
• Citation: 1961 (3) SA 245 (W)
• Hearing Date: 02 May 1961
• Court: Witwatersrand Local Division

Ludorf, J.:

There are two matters before me, which, to a large extent, G fall within the same compass. The first is an action in which a summons for provisional sentence has been issued in the name of 'The trustees for the time being of The African Explosives Pension Fund' in which provisional sentence is sought on two mortgage bonds; in respect of the latter, interest only is claimed. On behalf of the defendant objection has been taken to the form of the summons, because it is contended that H the proper plaintiff is not before the Court. In the second matter the same persons, in their capacity as applicants, applied against the respondent for an order in like terms to the prayers in the summons for provisional sentence, arising out of a deed of suretyship in which the respondent guaranteed the obligations of the defendant in the first action in respect of the same bond.

The plaintiffs are trustees of a fund known as 'The African Explosives

Ludorf J

Pension Fund'. There are before me the rules and constitution of that Fund and it appears from those rules that the trustees have the administration exclusively of the Fund, and whether the Fund be a body corporate or not, for the purposes of legal proceedings the rules A provide that the trustees may proceed both in the name of the Fund, or in their own names or in the names of some of them.

Mr. Schwartz has raised the contention that because of the terms of the Pension Funds Act, 24 of 1956, proceedings can only be brought in the name of the Fund as the plaintiff, or applicant, and not in the name of the trustees, even though the rules may provide for such a procedure.

B It is common cause that this Fund is what is known as 'a pension fund organisation', and it is common cause that this Fund has been registered in terms of the Act and that sec. 5 (1) (a) and (c) are applicable to the Fund. These sections read:

'Upon the registration under this Act -

(a)

C of a fund which is a pension fund organisation in terms of para. (a) of the definition of 'pension fund organisation' in sub-sec. (1) of sec. 1, the fund shall, under the name by which it is so registered, and in so far as its activities are concerned with any of the objects set out in that definition, become a body corporate capable of suing and being sued in its corporate name and of doing all such things as may be necessary for or incidental to the exercise of its powers or the performance of its functions in...