RETIREMENT FUND COLLECTIVE AGREEMENT – HIGH COURT JUDGEMENT: APPLICATION FOR LEAVE TO APPEAL
Members were previously advised that the High Court issued a Judgement, on 20 February 2023, setting aside the Retirement Fund Collective Agreement (RFCA), except for clause 8 thereof.
The SALGBC and its parties (which include IMATU) subsequently applied for leave to appeal the judgement.
The Municipal Employees Pension Fund (MEPF) filed a cross-appeal, and the Municipal Retirement Organisation (MRO) filed a (Rule 42) application to vary the judgement.
These applications were heard by the High Court on 10 July 2023, and judgement was handed down on 17 July 2023.
In terms of the judgement, the SALGBC’s application for leave to appeal was granted. The High Court found that the matter is of such profound importance and there are other compelling reasons to grant the SALGBC’s application.
This means that the SALGBC may now proceed to file an application for appeal to the Supreme Court of Appeal.
The MEPF’s cross-appeal application, arguing that clause 8 of the RFCA should also have been set aside. MEPF claim that clause 8.1 provides that new employees must join accredited defined contribution funds and regulates employer contribution rates to accredited funds. Since the High Court set aside the RFCA’s accreditation procedure, clause 8 should also have been set aside. The MEPF’s cross-appeal was granted. This means that the MEPF, and its co-applicants, may now also proceed to file an application for appeal to the Supreme Court of Appeal.
However, the MRO’s Rule 42 application was dismissed. A Rule 42 application is essentially an application to rescind or vary a judgement that was erroneously granted. Essentially, the MRO argued that the court made a mistake and should therefore vary the judgement. The mistake in the judgement, that the MRO referred to, was to retain the word “accredited” in clause 8. This is where reference is made to new employees being allowed only to join accredited defined contribution funds and where it regulates employer contribution rates to accredited funds (same as the MEPF’s case). The MRO essentially argued that the judgement should be varied to include a phrase that all references to accredited funds in clause 8 be deemed to have no force and effect.
The High Court, however, found that the Rule 42 application is misplaced and not appropriate for these proceedings. Accordingly, the MRO’s Rule 42 application was dismissed.
The result of this judgement is that the SALGBC and the MEPF and its co-applicants may file applications for appeal to the Supreme Court of Appeal and these are the parties that will be involved in that process.
The Executive Committee of the SALGBC previously resolved to file an application for appeal should leave to appeal be granted.
Accordingly, the next step is for the SALGBC to file the application for appeal and to oppose the cross-appeal of the MEPF and its co-applicants.
Members will be notified when the appeal is set down for hearing and if there are any other relevant developments.
