CASE NO: 111/11
In the matter between:
MATHILDA LOUISE WIESE Appellant and
GOVERNMENT EMPLOYEES First Respondent PENSION FUND
THE MINISTER OF FINANCE Second Respondent
THE PENSION FUND ADJUDICATOR Third Respondent CORNELIUS JOHANNES MARX Fourth Respondent
WRITTEN ARGUMENT FOR THE FIRST AND SECOND RESPONDENTS
INTRODUCTION
1. The Government Employees Pension Law, Proclamation 21 of 1996 (“the Law”), was declared invalid by the Western Cape
High Court on 1 July 2011.1 Paragraph 1 of the order made by Bozalek J reads:
“It is declared that the Government Employees Pension Law, Proclamation 21 of 1996, is inconsistent with section 9(1) of the Constitution of the Republic of South Africa, Act 108 of 1996, insofar as it fails to afford to former spouses of members of the Government Employees Pension Fund the same rights and advantages as are afforded to former spouses of members of funds subject to the Pension Funds Act, 24 of 1956, more particularly those contained in section 37D(1)(d), (3)(4) and (5), and is invalid to the extent of that inconsistency.”
2. These are confirmation proceedings in terms of section 167(5) and 172(2) of the Constitution, coupled with an appeal against the order made by the High Court. The appellant in this matter was the applicant in the High Court.
3. After the hearing of the matter in the High Court, but before judgment was handed down, a draft Bill amending the Law was published for public comment.
1 The judgment of Bozalek J is at pages 333-350, volume 4 of the Record. In paragraph 1 of the order
4. As set out in the affidavit filed in this Court ON 14 December 2011, the Bill passed through the various legislative processes and was eventually published and came into effect on 14 December 2011, as Act 19 of 2011.
5. It is common cause that the amendment to the Law cures the unconstitutionality of the Law, and, therefore, the invalidity on which this Court would have pronounced.2
6. The affidavit filed on the appellant’s behalf makes clear that she no longer seeks any substantive relief.
7. For these reasons, it is contended by the first and second respondents that the matter is moot and there is no need for this Court to hear the matter, or make any pronouncement thereon.
8. We do not deal with the question of costs in these submissions.
That question will be dealt with in supplementary submissions, in
2 I refer to the various affidavits filed by the appellant and first and second respondents in this matter, which are not yet part of any paginated bundle.
accordance with the direction of the Chief Justice issued on 25 January 2012.
9. These submissions are filed in accordance with the directions issued on 21 November 2011, which have not been amended.
These submissions will focus on the question of mootness. The background to the application and the argument put to the High Court is contained in the written arguments filed in the High Court on behalf of the first and second respondents, and which will be made available to this Court on request.
MOOTNESS
10. This Court has dealt more than once with the question of whether it should make any determination when a provision which has
been declared invalid by the High Court has been repealed or amended.3
11. The fact that there may no longer be a lis between the parties does not mean that the matter is no longer justiciable in this Court. The Court has a discretion whether to consider the matter.4 The essential question is whether “any order it may make will have any practical effect either on the parties or on others”.5
12. Thus, if the Court’s determination in either the confirmation proceedings or the appeal would have an effect on persons other than the parties, it may still exercise its discretion to determine the matter.
3 For example, JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC); President, Ordinary Court-Martial and Others v Freedom of Expression Institute and Others 1999 (4) SA 682 (CC); National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); Member of the Executive Council for Education:
KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC); Netherburn Engineering CC t/a Netherburn Ceramics v Mudau NO 2010 (2) SA 269 (CC).
4 Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at [9].
5 President, Ordinary Court-Martial and Others v Freedom of Expression Institute and Others (above) at [16]
13. In this case, the ultimate outcome sought by the appellant was the amendment of the Law to incorporate the “clean-break” principle on divorce, to bring the Government Employees Pension Fund (“the GEPF”) in line with funds governed by the Pension Funds Act, 24 of 1956 (“the PFA”).
14. To this end, the appellant sought a declaration of unconstitutionality and invalidity of the Law, coupled with a reading-in order.
15. There was no challenge to either the PFA or the Divorce Act, 70 of 1979, to the extent that they do not provide for the clean-break principle to be applied to funds not governed by the PFA. Nor was there any challenge to legislation governing other funds not governed by the PFA.
16. Further, the order made by the High Court does not affect any fund or law other than the GEPF and the Law.
17. Thus, any determination of this matter can only affect former spouses of members of the GEPF. These persons are fully catered for by the amendment of the Law in December 2011.
18. It is submitted, therefore, that there would be no practical effect in this Court hearing or determining this matter.
THE NGEWU MATTER (CCT 117/11)
19. The appellant submits in its heads of argument and the affidavit filed simultaneously therewith that the existence of a “related”
application, the Ngewu matter (CCT 117/11), may require the hearing and determination of this matter.
20. It is submitted that there is no basis on which the Ngewu matter can or ought to artificially prolong the life of this matter. The Ngewu matter is an application for direct access. It is based on a similar fault in legislation governing a pension fund, and relies on
the principle already decided in the High Court to found a basis for direct access.
21. However, the relief sought in that matter is different, and the governing legislation is different from that which was relevant to this matter. It is submitted that, while it may have been convenient to hear the two matters simultaneously while this (Wiese) matter was still alive, that does not mean the Ngewu application cannot and should not be heard independently if the Wiese matter falls away.
22. In addition, it is submitted that the application by the Women’s Legal Centre to be joined as an amicus in these proceedings cannot artificially prolong these proceedings. This would cause the parties to incur costs merely to permit an amicus to make submissions. This would not be in the interests of justice.
CONCLUSION
23. It is submitted that the issue raised in this case has become moot, and there will be no practical effect in this Court either hearing or determining the matter.
24. It is submitted that it is in the interests of justice that this matter be removed from the roll.
PJ PRETORIUS SC
S YACOOB
