Page 1
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
Case No: 117/11 In the matter between:
PHUMLA RUTH PATRICIA NGEWU First Applicant WOMEN’S LEGAL CENTRE TRUST Second Applicant and
POST OFFICE RETIREMENT FUND First Respondent MINISTER OF COMMUNICATIONS Second Respondent MINISTER OF FINANCE Third Respondent MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Fourth Respondent MAWETHU NGEWU Fifth Respondent
PRACTICE NOTE ON BEHALF OF THE FIRST AND SECOND RESPONDENTS
HEARING DATE: 07 February 2013
COUNSEL FOR THE FIRST PJ Pretorius SC AND SECOND RESPONDENTS: (082 8509741)
S Yacoob (083 3056173)
Page 2
COUNSEL FOR APPLICANTS: I Goodman
NATURE OF PROCEEDINGS:
Application for direct access, and for a declaration of invalidity of the rules of the Post Office Retirement Fund, the Pension Funds Act, 24 of 1956, and the Divorce Act, 70 of 1979, on the basis that they do not make the “clean-break principle” applicable to the Post Office Retirement Fund.
The applicants seek different relief in an affidavit filed on 29 January 2013, that is, the declaration of invalidity of the rules of the Post Office Retirement Fund, and a reading-in of amendments to the Rules and to the Post Office Act, 44 of 1958.
THE ISSUES THAT WILL BE ARGUED:
There is no dispute as to the merits of the differentiation complained of by the applicant. The only question to be determined is the appropriate relief. In view of the fact that an amendment of the Post
Page 3
Office Act and the Fund’s rules is imminent, the question arises whether the matter should be heard on 7 February 2013, or postponed to permit finalisation of the amendments. If the matter is heard, the only question is whether a declaration of invalidity should be suspended, or whether a reading-in remedy is appropriate.
PARTS OF RECORD NECESSARY FOR THE DETERMINATION OF THE MATTER:
Due to the late production of the index, these references may be inaccurate, for which we seek the Court’s indulgence.
1. The notice of motion in the High Court, pages 1-4, volume 1 of the High Court Record.
2. The notice of motion in this Court, pages 1-7, volume 1 of the Record.
3. The first and second respondent’s answering affidavits in the High Court, pages 69-116, volume 1 of the High Court Record, and pages 203-225, volume 3 of the High Court Record.
Page 4
4. The first respondent’s supplementary affidavit, pages 259-270, volume 3 of the High Court Record.
5. All the affidavits filed in this Court, listed in the main index of the record.
ESTIMATED DURATION OF ARGUMENT:
Two hours.
SUMMARY OF THE ARGUMENT ON BEHALF OF THE RESPONDENTS:
It will be argued on behalf of the first and second respondents that:
1. There is no substantive issue to be determined, as the unfair nature of the differentiation complained of is common cause. An amendment to the Post Office Act remedying the defect has already been gazetted for public comment, and the first
Page 5
respondent has drafted a rule amendment to implement the
“clean-break principle”
2. The matter should be postponed for a further eight months to permit the finalisation of the legislative amendment and the implementation of the rule amendment. This would avoid unnecessary expenditure of costs, and the Court’s time and resources.
3. Alternatively, any declaration of invalidity should be suspended for eight months, for the same reason.
4. Neither the first nor the second respondent has delayed in procuring a remedy to the defect, nor have they opposed this matter in a manner that is unreasonable.
5. No order for costs should be made by this Court.
