IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

In the matter between:

KUZIKKATTU MATHEW PHILIP

VARKEY BABY KOCHUKAROTTU

MARAMMA PHILLIP

ANNAMMA PHILLIP

GEORGE MATHEWS

GEORGE PAREKKADAVIL

BABY MATHEW P AREKKADA VIL

PALAMOOTTIL KURIAN-ABRAHAM

THRESIAMMA JACOB

CHIRA THALATTU OOLAHANNAN NINAN

CASE NO: 71722/2016

Not Reportable

Not of interest to other Judges

First Applicant

Second Applicant

Third Applicant

Fourth Applicant

Fifth Applicant

Sixth Applicant

Seventh Applicant

Eighth Applicant

Ninth Applicant

Tenth Applicant

GIGIMOL NINAN

GRASAMMA BABY

KOSHY ALEXANDER

ELIZABETH ALEXANDER

PUTHENVEETIL GEORGE PIDLIP

PURAMADATHIL MA THAI KURIAKO

CHACKO MA THEW PANICKER

SARAMMA MATHEW

and

GOVERNMENT PENSIONS ADMINISTRATION

AGENCY

GOVERNMENT EMPLOYEES PENSION FUND

MINISTER OF BASIC EDUCATION

PREMIER OF THE LIMPOPO PROVINCE

MEMBER OF THE EXECUTIVE COUNCIL

FOR EDUCATION: LIMPOPO PROVINCE

THE MINISTER OF FINANCE

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Eleventh Applicant

Twelfth Applicant

Thirteenth Applicant

Fourteenth Applicant

Fifteenth Applicant

Sixteenth Applicant

Seventeenth Applicant

Eighteenth Applicant

First Respondent

Second Respondent

Third Respondent

Fourth Respondent

Fifth Respondent

Sixth Respondent

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JUDGMENT

MAKGOKAJ

(1] The applicants, all former temporary teachers employed by the Lebowa

department of education, seek, in the main, an order reviewing and setting aside

the decisions of the first respondent, the Government Pensions Administrative

Agency (GP AA) and the second respondent, the Government Employees Pension

Fund (the GEPF) on 15 March 2016 declining their applications to be the

beneficiaries of the government's pension redress program (the pension redress

program). They also seek the declaratory orders that: they are eligible applicants in

terms of the pension redress program; they are employees of the Government of

the Republic of South Africa since 3 June 1994; and they became entitled, since

1 9 April 1996 to belong to the GEPF.

(2] Upon such declaratory orders, they seek an order directing the third

respondent, Minister of Basic Education (the Minister), the fourth respondent, the

Premier of Limpopo Province (the Premier) and the fifth respondent, the Member

of the Executive Council for Education in Limpopo (the MEC) to make pension

contributions to the GPAA and the GEPF, in respect of all of them within 90 days

of the granting of the declaratory orders referred to above. Such contributions are

to be retrospective from 19 April 1996 to the dates when they were permanently

employed as government employees and /or when they started contributing to the

GEPF.

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[3] The applicants do not seek any relief against the sixth respondent, the

Minister of Finance, and he has been joined to the extent he might have an interest

in the matter. The application is opposed by the GP AA and GEPF. The MEC has

filed a notice to abide.

[4] The GPAA is a public entity responsible for the administration of the public

pensions listed in terms of the Public Finance Management Act 1 of 1999. The

GEPF is a pension fund established in terms of the Government Employees

Pension Law 21 of 1996. As its name suggests, it caters for the government

employees.

[5] The applicants immigrated from India to South Africa in the early 1990s.

They were employed as temporary teachers at various schools in the former so­

called self-governing territory of Lebowa by that territory's department of

education. As temporary teachers, they were not eligible to belong to a pension

fund. On 3 June 1994 the employees of the so-called self-governing territories,

became employees of the South African government, following the promulgation

of the Public Service Act 103 of 1994 (the Public Service Act), which repealed the

whole of the Lebowa Public Service Act, 1972. All government staff, including

temporary staff, were from 3 June 1994, regarded as employees of the government

in terms of section 8(2) of the Public Service Act.

[6] The Government Employees Pension Law 21 of 1996 was promulgated on

19 April 1996 in terms of which the GEPF was established. The date of

commencement was 1 May 1996. In terms of the section 4 thereof, and its

regulations, the national department of education (later renamed the department of

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basic education) and the provincial department of education in the Limpopo

provincial government were obliged to deduct pension contributions from the

employees' salaries as government employees from 19 April 1996. It is common

cause that all government employees, except political office-bearers, must belong

to the GEPF.

[7] During 1998 and 2002 the Public Service Coordinating Bargaining Council

(the bargaining council) passed two resolutions, respectively, resolution 7 of 1998

and resolution 12 of 2002, regarding, among others, government employees'

pensions. The resolutions constitute collective agreements. The 1998 agreement

applies to the government as the employer and all government employees and all

employees who fall within the registered scope of the bargaining council. The 2002

binds the government as employer, government employees who are members of

the trade union parties to the agreement and government employees who are not

members of any trade union parties to the agreement, but who fall within the

registered scope of the bargaining council. Both resolutions provide for a dispute

resolution process, in terms of which all disputes arising out of interpretation and

application of the resolutions must be referred to the bargaining council.

[8] The 2012 resolution gave rise to the pension redress program. This is a

special dispensation in terms of which only employees who were in government

service on 2 September 1998 and who suffered specified forms of discrimination

were eligible to receive the benefit under the program.

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[9] During March 2012 the applicants applied to the GEPF for benefit under the

pension redress program. In their view they qualified for the redress program as the

only requirement was for them to have been government employees on

2 September 1998. The applications were only considered a year later, when on 15

March 2016 the GEPF declined the applications. Except for the eighth and

eleventh applicants, the applicants' applications were rejected on the basis that

they were admitted into the GEPF after 2 September 1998. In respect of the eighth

respondent, it was stated that he had exited the GEPF before the above date and in

respect of the eleventh applicant the reason proffered was that she had already been

paid the necessary compensation.

[1 O] The basis on which the applicants' applications were rejected, namely that

they were not members of the GEPF as of 2 September 1998 was wrong. The only

valid requirement for an applicant to qualify in terms of the pension redress

program was that they should have been a government employee on 2 September

1998, which the applicants, undoubtedly, were. This aspect need not detain us

further.

[ 11) That out of the way, the only and real dispute between the parties is whether

this court has jurisdiction to determine the matter. That issue arises in this context.

In their answering affidavit, the respondents assert that the relief sought by the

applicants concerns 'an interpretation and application' of the collective bargaining

agreements. Consequently, so is the contention, the applicants ought to have

referred the matter to the bargaining council for resolution. This argument is

premised on the dispute resolution mechanisms in both collective agreements in

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terms of which any dispute about the interpretation and application of those

agreements should be referred to the bargaining council.

[12] In both written and oral argument it was submitted on behalf of the

respondents that the matter is justiciable before a specialized forum of the Labour

Relations Act 66 of 1995 such as the Labour Court. For this contention, counsel for

the respondents placed reliance on, among others, Chirwa v Transnet. 1 It was also

argued that in any event, on a proper interpretation of the collective agreements,

the applicants fall outside the categories of the employees envisaged in the

agreement.

[13] There are two issues here. First, whether the applicants are parties to the

collective agreements. Second, whether the dispute concerns the interpretation and

application of the collective agreements. I prefer to consider the second issue first,

as it may be dispositive of the matter. In this regard, it is important to identify the

real dispute between the parties, which must be gleaned from the facts of the case,

and not from the characterization by any of the parties. As explained m

Johannesburg City Parks,2 a distinction should be made between an issue in

dispute and the main dispute. See also Health & Others Services Personnel,3 where

it was analogously observed that:

' [18] The mere fact that an express right to be paid during suspension can be derived from a

statute or an individual contract of from a collective agreement is not a critical dimension of the

dispute; rather than it is simply evidence of the right.

1 Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC) . 2 Johannesburg City Parks v Mphahlani NO and Others [201 OJ 6 BLLR 585; (2010) 31 ILJ 1804 (LAC) . 3 Health & Other Services Personnel Trade Union of SA on behalf of Tshambi v Department of Health, Kwazulu-Natal (2016) 37 ILJ 1839 (LAC).

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[ 19] The idea that the breach of a right that derives from a collective agreement is automatically

a dispute contemplated by s 24 is wrong.'

(14] In Public Servants Association obo Strauss4 it was held that although the

dispute in that case arose in the context of a collective agreement, the real dispute

was the fairness of the resolution. Accordingly, it was held thats 24 of the LRA

did not apply. See also Ekurhuleni Metropolitan Municipality v SAMWU 5

[15] Returning to the facts of the present case, as stated earlier, it is common

cause that the only requirement for an applicant to qualify for the pension redress

program is that they should have been government employees on 2 September

1998. The applicants were. There is no issue of interpretation. As correctly

submitted on behalf of the applicants, the mere fact that there is reference to

collective agreements in the papers does not mean the dispute is about the

interpretation of the agreement. What the applicants are aggrieved about, is the

decision of the respondents to dismiss their applications to benefit in terms of the

pension redress program. That, in my view, is a purely administrative decision,

susceptible to review.

[16] Counsel for the applicants also pointed out that in terms of s 158(1)(g) the

Labour Court has jurisdiction subject to s 145 to review the performance or

purported performance of any function provided for in the LRA. It was argued,

correctly in my view, that the functions performed by the respondents, namely to

evaluate the applications for compensation in terms of the pension redress program

4 Public Servants Association on behalf of Strauss & others v Minister of Public Works NO & Others F013) 34 ILJ 2929 (LC).

Ekurhuleni Metropolitan Municipality v SA Municipal Workers Union on behalf of Members (2015) 36 ILJ 624 (LAC).

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is not a function provided for in the LRA despite the fact that the program

originates from a collective agreement. Accordingly, the dispute between the

parties is not one to be determined by the Labour Court as it is not empowered by

the LRA to adjudicate such a dispute, especially in light of the fact that it does not

pertain to an employer-employee relationship. In any event, I am of the view that

even if the Labour Court has jurisdiction, it would not be exclusive, regard being

had to the provisions of s 157 of the LRA, which confers concurrent jurisdiction on

this court in certain instances. The present case, in my view, would fall within the

category of such matters.

[ 1 7] The view I take and the conclusion at which I arrive, make it unnecessary to

consider whether the applicants are parties to the collective agreements.

[18] In all circumstances, I have no difficulty in rejecting the respondents'

contentions as unmeritorious. The applicants have made out a proper case for the

relief sought in the notice of motion. Costs should follow the result. The applicants

have employed senior counsel. Given the issues involved, and the importance of

the matter to both parties, I am of the view that it was prudent to do so.

[19] In the result the following order is made:

1. The resolutions of the first and second respondents made on 15 March

2016 declining the applicants ' applications to benefit under the pensions

redress program, are reviewed and set aside;

2. It is declared that:

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2.1 the applicants are eligible applicants in terms of the pension redress

program pursuant to resolution 12 of 2002 issued by the Public

Service Coordination Bargaining Council;

2.2 the applicants are employees of the Government of the Republic of

South Africa since 3 June 1994 in terms of the Public Service Act 103

of 1994 as amended;

2.3 the applicants are entitled since 19 April 1996 to belong to the

Government Employees Pension Fund in terms of Government

Employees Pension Law of 1996;

3. The third, fourth, and fifth respondents are ordered to make pension

contributions to the Government Employees Pension Fund in respect of

the applicants within 120 days from the date of this order, with

retrospective effect from 19 April 1996 to the dates on which the

applicants were permanently employed as government employees;

4. The first and second respondents are ordered to process the contributions

mentioned in paragraph 3 above, as well as the applicants' own

contributions within a period of 90 days of receiving such contributions;

5. The first and second respondents are ordered to pay the costs of this

application, such costs to include the costs consequent upon the

employment of two counsel.

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TMMakgoka Judge of the High Court

APPEARANCES:

For the Applicants:

For the First and

Second Respondents:

LS de Klerk (with him JFA Nel)

Instructed by:

Gerard Stoop Attorneys, Pretoria

ZZ Matebese

Instructed by:

Mac Ndhlovu Inc, Pretoria

No Appearance for the Third, Fourth, Fifth and Sixth Respondents

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