THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case No: 20612/2014

In the matter between:

SASOL LIMITED
FIRST APPELLANT
SASOL PENSION FUND

SECOND APPELLANT
SACWU NATIONAL PROVIDENT FUND             THIRD APPELLANT
SASOL NEGOTIATED PROVIDENT FUND     FOURTH APPELLANT

and

CHEMICAL INDUSTRIES NATIONAL
PROVIDENT FUND
RESPONDENT

Neutral citation: Sasol Limited v Chemical Industries National Provident
Fund (20162/2014) [2015] ZASCA 113 (7 September 2015)

Coram:
Mpati P, Cachalia and Mhlantla JJA and Gorven and
Baartman AJJA

Heard:

16 August 2015

Delivered:
7 September 2015

Summary: Pensions ─ transfer of membership from respondent fund to
appellant funds ─ interpretation and application of rules of respondent fund
relating to transfer ─ partial compliance with rules insufficient ─ no valid
transfer.

__________________________________________________________________________

ORDER

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Mayat J sitting as court of first instance): judgment reported sub nom Chemical
Industries National Provident Fund v Sasol Limited & others (22869/2013)
[2014] ZAGPJHC 90, 2014 (4) SA 205 (GJ)
The appeal is dismissed with costs, including those occasioned by the
employment of two counsel.

JUDGMENT

Gorven AJA (Mpati P, Cachalia and Mhlantla JJA and Baartman AJA
concurring):
[1] This matter concerns transfers of members between funds governed by
the Pension Funds Act.1 Prior to 1 December 2011, most employees of the first
appellant (Sasol) who were members of the respondent fund (the CINPF) were
not entitled to terminate their membership of the CINPF while they remained in
service. The rules of the CINPF prohibited it. A number of Sasol employees
wished to transfer to other funds. This led to complaints to the Pension Funds
Adjudicator (the Adjudicator). An amendment to rules 3.4.1 and 10.2 of the
CINPF followed.2 Sasol says that after this amendment and with effect from
1 March 2013, the fifth to 2448th respondents (the 2444) in the court below have
withdrawn from the CINPF and are now members of one of the second to fourth
appellants (the new funds). Sasol consequently ceased paying employer and
member contributions to the CINPF from that date. The CINPF says that no

1 Pension Funds Act 24 of 1956.
2 The amendment was adopted by the trustees of CINPF on 20 November 2011 with effect from 1 December
2011 and was approved by the Registrar of Pension Funds by letter dated 12 July 2012.

such withdrawal has taken place and the 2444 remain members of the CINPF.
The contributions should have continued. The parties agree that the outcome of
this dispute and, thus, this appeal, turns on the interpretation of the amended
rules 3.4.1 and 10.2 of the CINPF and its application to the facts. The dispute
arose as follows.

[2] The Registrar of Pension Funds approved the amendment on
12 July 2012. In response to pressure from employees to transfer, Sasol decided
to offer them an opportunity to do so during a „window period‟. Consequently,
on 31 August 2012, Sasol wrote to the CINPF. It recorded that many employees
wished to transfer and that a window period would open from 1 October 2012 to
30 November 2012 during which employees would be permitted to transfer. An
objection period would run from 1 to 31 December 2012. In order to inform
employees of the benefits offered by the different funds, they would be given an
opportunity to attend information sessions during the window period at which
presentations would be made by all the relevant funds. On 13 September 2012,
Sasol instructed all of its plants to display a notice informing employees of the
window period and the forthcoming information sessions. In the notice, Sasol
set 1 January 2013 as the transfer date.

[3] On 18 September 2012, Sasol sent an email to the CINPF and the new
funds, informing them of the venues and scheduled dates for the proposed
information sessions, beginning on 26 September 2012. The email requested
each fund to send representatives to the information sessions to present
information about their fund. The CINPF replied to this email on the same day.
It advised Sasol that the CINPF would respond to the request after the board
met in November 2012.

[4] On 19 September 2012, Sasol wrote expressing concern that the CINPF
would not participate in the information sessions. These nevertheless
commenced as scheduled. On 2 October 2012, the CINPF wrote to Sasol
advising that its unilateral decision to grant its employees a window period to
transfer from the CINPF was „disturbingly inappropriate‟. It requested a list of
those members wishing to be transferred. It recorded that there had been
„malicious and misleading‟ information conveyed to employees with housing
loans that, if they transferred to one of the new funds, their housing loans would
be settled. The CINPF also asserted that its trustees alone could take a decision
to transfer members. Sasol could do no more than request the trustees to open a
window period.

[5] Sasol responded on 11 October 2012 contending that it had complied
with the rules of the CINPF and that members of the CINPF were now
permitted to transfer to another fund. Sasol undertook to furnish a list of those
employees wishing to transfer from the CINPF once the window period was
over. On 12 October 2012, the CINPF advised Sasol that, following a special
board meeting, representatives would make presentations at the remainder of
the scheduled information sessions.

[6] More than 90 information sessions were conducted countrywide. After
15 October 2012, the CINPF was represented at 53 of them. Employees who
intended to transfer were given a document drafted by Sasol which set out a
comparison of the funds in tabular form. This document had been supplied to
the CINPF prior to the commencement of the information sessions. Despite an
invitation to correct or supplement the document, no response was received
from the CINPF. After each session, employees were asked to sign declaration
forms in which they indicated whether they elected to transfer and, if so, to
which of the new funds.

[7] On 7 December 2012, the CINPF and its legal representatives met with
representatives of Sasol. It was agreed that they would co-operate with each
other by sharing all necessary information so as to facilitate transfers in terms of
the rules of the CINPF. On 13 December 2012, the attorneys of the CINPF
requested a list of members wishing to transfer from the CINPF. The request for
a list was repeated in an email of 7 January 2013. On 10 January 2013, Sasol
informed them that it was not in a position to provide the requested information.
It explained that 14 January 2013 had been set as the final date for submission
of declaration forms. Numerous errors in existing forms had been identified and
it had therefore become necessary for each application to be validated. Finally,
Sasol informed the CINPF that, due to these factors, the transfer date had been
put back to 1 March 2013. On 1 February 2013, Sasol provided the requested
list. On 4 February 2013, Sasol made copies of the signed forms available.

[8] On 21 February 2013, the CINPF requested copies of the presentations
made to the employees during the information sessions. In addition, it asked
Sasol whether the new funds had a home loan facility and how it intended
dealing with members who had outstanding loans. Sasol responded on the same
day. It said that it had been made clear to employees that, if they wished to
transfer to one of the new funds and had a home loan with the CINPF, the loan
would have to be settled. The balance of that member‟s fund credit would be
transferred to the new fund once the process under s 14 of the Act3 had been

3 Section 14(1) reads as follows:
(1) Subject to subsection (8), no transaction involving the amalgamation of any business carried on by a
registered fund with any business carried on by any other person (irrespective of whether that other person is or
is not a registered fund), or the transfer of any business from a registered fund to any other person, or the
transfer of any business from any other person to a registered fund, shall be of any force or effect unless-
(a)   the scheme for the proposed transaction, including a copy of every actuarial or other statement taken into
account for the purposes of the scheme, has been submitted to the registrar within a prescribed period of the
effective date of the transaction;
(b)   the registrar has been furnished with such additional particulars or such a special report by a valuator, as
he may deem necessary for the purposes of this subsection;
(c)   the registrar is satisfied that the scheme referred to in paragraph (a) is reasonable and equitable and
accords full recognition-

approved. On 23 February 2013, the CINPF noted that the majority of the
declaration forms did not indicate which investment portfolio the member had
chosen. It further highlighted differences in the home loan policies and core
benefits of the different funds. The CINPF concluded that the trustees „would
not be carrying out their fiduciary duties . . . should they approve these transfers
without seeking clarity and/or explanations why members would agree to
transfer to funds where they are prejudiced‟. Sasol was requested to address
those concerns so that the trustees could consider the application. Sasol
responded on 28 February 2013 in terse and somewhat dismissive terms.

[9] In an eight page letter dated 27 March 2013, the CINPF motivated in
detail the concerns mentioned on 23 February 2013. No response was received.
The CINPF again called for a response to the queries and expressed its disquiet
that Sasol had ceased to pay contributions to the CINPF despite the „objections
and concerns‟ raised by the CINPF. After further correspondence failed to
resolve the matter, the CINPF approached the court below.

[10] It claimed the following relief against Sasol and the new funds:
„1. Declaring that the 5th to 2448th respondents were not validly transferred from the CINPF
with effect from 1 March 2013 and remain members of the CINPF.
2. Declaring that since 1 March 2013 and while the 5th to 2448th respondents retain their
status as members of the CINPF, Sasol has been and remains obliged to pay member

(i)   to the rights and reasonable benefit expectations of the members transferring in terms of the rules of a
fund where such rights and reasonable benefit expectations relate to service prior to the date of transfer;
(ii)   to any additional benefits in respect of service prior to the date of transfer, the payment of which has
become established practice; and
(iii)   to the payment of minimum benefits referred to in section 14A,
and that the proposed transactions would not render any fund which is a party thereto and which will continue to
exist if the proposed transaction is completed, unable to meet the requirements of this Act or to remain in a
sound financial condition or, in the case of a fund which is not in a sound financial condition, to attain such a
condition within a period of time deemed by the registrar to be satisfactory;
(d)   the registrar has been furnished with such evidence as he may require that the provisions of the said
scheme and the provisions, in so far as they are applicable, of the rules of every registered fund which is a party
to the transaction, have been carried out or that adequate arrangements have been made to carry out such
provisions at such times as may be required by the said scheme;
(e)   the registrar has forwarded a certificate to the principal officer of every such fund to the effect that all the
requirements of this subsection have been satisfied.

contributions and its corresponding employer contributions to the CINPF in respect of each
of the 5th to 2448th respondents.
3. Ordering the first respondent (Sasol) to pay the costs of this application and ordering any
of the other respondents who oppose this application to pay the costs of the application
jointly and severally with the first respondent.‟

[11] In addition to opposing the relief sought, Sasol and the new funds brought
a counter-application for the following relief:4
„2. It is declared that the employees of SASOL Limited who are members of the Applicant
and who with effect from 1 March 2013 elected to become members of the Second to Fourth
Respondents have lawfully exercised that election and are now members of the Second to
Fourth Respondents:
3. It is declared that SASOL Limited is entitled to pay to the Second to Fourth Respondents
the contributions in respect of the members or the Applicant who have elected to become
members of the Second to Fourth Respondents;
4. The Applicant be directed to take all necessary steps contemplated in section 14 of the
Pension Funds Act, Act 24 of 1956, read with directive 6 of the directives issued by the
Registrar of Pension Funds, to ensure that the assets and liabilities attributable to those
members who have elected to become members of the First to Fourth Respondents with
effect from 1 March 2013 are transferred to the First to Fourth Respondents.‟
The 2444 took no part in the application or counter-application.

[12] Mayat J, in the Gauteng Local Division of the High Court, Johannesburg,
granted the relief sought by the CINPF, including an order that Sasol and the
new funds pay the costs of two counsel. The parties correctly agree that, even
though no order was made on the counter application, the effect of the judgment
was also to dismiss the counter-application with costs, including the costs of
two counsel. The court below granted Sasol and the new funds leave to appeal
against the orders granted in the main application and the dismissal of the
counter-application. It is this appeal which is before us.

4 A prayer for dismissal of the main application formed paragraph 1 of the order.

[13] The legal principles that apply to pension and provident funds are clear
and uncontroversial. The trustees of a fund are bound to observe and implement
the rules of that fund.5 Their powers and responsibilities and the rights and
obligations of members and participating employers are governed by the rules,
applicable legislation and the common law.6 The rules of a fund form its
constitution7 and must be interpreted in the same way as all documents. The
approach to be taken to the interpretation of documents was recently
summarised by this court in Natal Joint Municipal Pension Fund v Endumeni
Municipality,8 as follows:
„Whatever the nature of the document, consideration must be given to the language used in
the light of the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material known to those
responsible for its production. Where more than one meaning is possible each possibility
must be weighed in the light of all these factors. The process is objective, not subjective. A
sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert to, and guard against,
the temptation to substitute what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation; in a contractual context it is to make a contract
for the parties other than the one they in fact made. The “inevitable point of departure is the
language of the provision itself”, read in context and having regard to the purpose of the
provision and the background to the preparation and production of the document.‟9

[14] As so often happens with amendments to documents, those made to the
rules of the CINPF in this instance caused the rules to „grow like Topsy‟,
resulting in an unsightly and unwieldy edifice. Far from clarifying matters, the

5 Section 13 of the Act which provides that „the rules of a registered fund shall be binding on the fund and the
members . . .‟.
6 Tek Corporation Provident Fund & others v Lorentz 1999 (4) SA 884 (SCA) at 894B; (490/97) [1999]
ZASCA 54.
7 ABSA Bank Ltd v South African Commercial Catering and Allied Workers Union National Provident Fund
(under Curatorship) 2012 (3) SA 585 (SCA) para 26; (679/10) [2011] ZASCA 150.
8 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18; (920/2010)
[2012] ZASCA 13.
9 References omitted.

amendments gave rise to considerable opacity, if not a number of anomalies.
Not all of these arise or can be resolved in this judgment. It remains to construe
the relevant rules.

[15] The amended rule 3.4.1 reads as follows:
„3.4.1. Subject to the provisions of Rule 9.2.4, a Member shall not be permitted to withdraw
from membership of the Fund while he remains in Service, except in the circumstances
referred to in Rule 10.2.1.‟
Rule 9.2.4 has no application in the present matter. Therefore, the only issue is
what is meant by „the circumstances referred to in Rule 10.2.1‟. Rule 10.2
provides:
„10.2 Transfers out of the Fund
10.2.1 Notwithstanding any contrary provision in these Rules, particularly Rule 3.4.1,
existing Members who wish to transfer out of the Fund while still in Service, must make a
representation to the Trustees, through their Local Advisory Committee, in writing.
Representation is to be made to the Trustees within such a reasonable period as the Trustees
shall consider appropriate.
10.2.2 The Trustees must ensure that the representation is investigated and confirmed prior to
the submission of an application to the Registrar by conducting a clear and comprehensive
communication exercise with the Members concerned in terms of Rule 13.1.8, and by
obtaining the explicit approval of all the transferring Members.
10.2.3 The Fund must be satisfied that a transfer is reasonable and equitable and that it
accords full recognition to the rights and reasonable expectations of the Members.
10.2.4 Subject to the provisions of Rules 10.2.1, 10.2.2 and 10.2.3, if the transferred Member
becomes a member of an Approved Provident Fund or an Approved Pension Fund
established for the benefit of employees of the organization to which he is transferred, the
Trustees shall transfer the Member's Fund Credit as at the Disinvestment Date plus any
interest which may have become due to the Member by the fund, and thereafter, the Member
shall have no claim on the Fund.‟

[16] It will immediately be noted that the wording used in the two amended
rules is not consistent. Rule 3.4.1 refers to withdrawing from membership while

rule 10.2 refers to a transfer. It is accepted by the parties that the application to
the Registrar mentioned in rule 10.2.2 is one made in terms of s 14 of the Act.
As has been pointed out by Rosemary Hunter et al,10 s 14 does not regulate the
transfer of members but the transfer of assets and liabilities of members.
Members do not, strictly speaking, transfer between funds. They withdraw from
one and join another.

[17] So the question that then arises is: does rule 10.2 deal with withdrawal of
members, the transfer of their assets and liabilities or both? The short answer is
that it deals with both. According to rule 3.4.1, one must look to rule 10.2.1 to
establish the circumstances under which a member may withdraw. Rule 10.2.1
refers to members who wish to transfer, rule 10.2.2 to „transferring members‟
and rule 10.2.4 to a transferred member. These clearly relate to members. Rule
10.2.4 then goes on to refer to a transfer of a member‟s fund credit. This relates
to the s 14 transfer of assets and liabilities. The language in rule 10.2, insofar as
it refers to a transfer of members, is therefore not congruent with that of the Act
or, indeed, of rule 3.4.1. This imprecise use of language has undoubtedly
contributed significantly to the dispute between the parties.

[18] In their heads of argument, the main argument advanced by the appellants
was that, since rule 3.4.1 is made subject only to rule 10.2.1, „termination of
membership of the CINPF is not dependent upon compliance with Rules 10.2.2
and 10.2.3 and is a step distinct from the remainder of the Rule, which deals
with the transfer of members‟ fund credits under Section 14‟ of the Act. This
submission was not pressed in argument. It is premised on rules 10.2.2 to 10.2.4
dealing only with a transfer of assets and liabilities under s 14. The appellants

10 Rosemary Hunter et al The Pension Funds Act, 1956: A Commentary on the Act and Selected Notices,
Directives and Circulars (2010) at 284.

agreed before us that the withdrawal of a member from the CINPF could not
take place without the provisions of the other sub-rules being complied with.

[19] In my view, this is correct. Although rule 3.4.1 mentions only rule 10.2.1,
the latter rule triggers a process that requires compliance with rules 10.2.2 to
10.2.4. As mentioned, these deal with both the termination of membership and
the transfer of members‟ assets and liabilities. This is clear from at least two
factors. First, the requirement in rule 10.2.2 is that the trustees ensure that the
representation (which I take to mean request or notice) to transfer out of the
fund is confirmed before submitting an application to the Registrar. It makes no
sense to contend that a member has already withdrawn before confirming a
member‟s desire to do so. If a member does not confirm the representation, it
can hardly be contended that the member in question has in fact withdrawn.
Secondly, the requirement in rule 10.2.2 is that the trustees must obtain the
„explicit approval of the member‟. This will almost certainly require the
members concerned to be made aware of the financial consequences of a
transfer to another fund. This is why a communication exercise must take place
before the explicit approval is obtained. After the communication exercise it
may well be that a member decides not to give approval.  The approval must
surely be obtained before it can be said that the member has transferred or
withdrawn. A withdrawal from the CINPF thus requires the completion of the
rule 10.2.2 process.

[20] Under rule 10.2.3, the trustees must be satisfied in two respects. First, that
the proposed transfer is „reasonable and equitable‟ and, secondly, that the
proposed transfer „accords full recognition to the rights and reasonable
expectations of the Members‟. It was accepted by the parties that this requires a
conscious decision to be taken by the trustees to the effect that they are so

satisfied. It was also accepted by the parties that this must take place before an
application under s 14 of the Act is submitted by the trustees to the Registrar.

[21] Having conceded in argument that rule 10.2.1 does not alone govern a
withdrawal, the alternative submission of the appellants was that the provisions
of rules 10.2.1 to 10.2.3 had been satisfied on the facts of the matter. This
submission was vigorously contested by the CINPF.

[22] The CINPF submitted that the entire process was fatally flawed. Sasol, it
said, had unilaterally initiated and conducted the transfer process, including the
communication exercise enjoined by rule 10.2.2. In doing so, Sasol had
inappropriately usurped the fiduciary role of the trustees. In addition, the CINPF
challenged the accuracy of attendance registers and the like.

[23] It must be said that the strict letter of rule 10.2 was not followed. A
simple example arises from the way in which the process was initiated. Rule
10.2.1 requires a „representation‟ to be made by a member through the Local
Advisory Committee to the trustees of the CINPF. This was clearly not done.
Instead, Sasol notified the CINPF that a large number of its members wished to
transfer. However, the purpose of the rule is to identify those members wishing
to transfer so that the trustees can confirm this and obtain their explicit consent
after a communication exercise has been conducted. At the time, the CINPF
simply requested from Sasol the relevant particulars of those members. This
information would clearly suffice for it to take the steps required by rule 10.2.2
to 10.2.4. It did allege non-compliance with this rule in its letter of 29 April
2013 but has not relied on this in the appeal. In my view, there was sufficient
compliance with rule 10.2.1 and the approach of the CINPF in the appeal was
refreshingly pragmatic in this regard.

[24] The contention of the CINPF that the process undertaken pursuant to rule
10.2.2 was fatally flawed cannot find traction. First, although the rule clearly
envisages that the trustees oversee the process, all that is required in substance
is that the trustees ensure that the representations are „investigated and
confirmed‟ and that the „explicit approval of all the transferring Members‟ is
obtained. This after a communication exercise has taken place. If this was done,
and I will deal with this aspect later, to argue that the process is a nullity
because the trustees did not „conduct‟ the communication exercise is to unduly
elevate form over substance.

[25] In the second place, the particular circumstances of this matter are highly
unusual. Transfers had hitherto not been allowed but members had, for some
time, expressed a desire to transfer. This desire had been thwarted by the rules.
The right to transfer only arose after the amendment was approved in July 2012.
As a result, instead of a situation obtaining where transfers were taking place on
an ongoing basis from time to time, a large number of members wished to
transfer at the same time. In these circumstances, the involvement of Sasol as
employer was imperative. A „window period‟ and a series of nationwide
information sessions at Sasol plants was an appropriate way to address the
numbers involved. In addition, there were a number of funds to which
employees might transfer. It thus made practical sense for Sasol to schedule the
information sessions and invite all the relevant funds, including the CINPF, to
participate in them. This situation will not be likely to repeat itself and other
employers will be hard pressed to justify adopting a similar approach in the
future.

[26] Thirdly, the CINPF, after initial misgivings, participated in the process
and gave presentations at 53 of the sessions. It can hardly be heard to complain
that the sessions were fatally flawed or that they did not contribute meaningfully

to the rule 10.2.2 process. The CINPF‟s attorneys conceded as much in their
letter of 20 November 2012, after over a month of involvement and with only
ten days of the window period remaining, where they said:
„We do not wish to debate with Sasol the merits or otherwise of the validity of the Window
Period, but rather to constructively discuss the proposed transfers and process post the
information sessions and closing of the Window Period, for the benefit of all the Members of
the CINPF‟.
This was a salutary approach. Even the letter of 23 February 2013, to which I
will return in due course, did not raise complaints about the process.

[27] In addition, the tabulated comparison of the funds was disseminated
without correction from the CINPF. Even in the papers the CINPF at no stage
challenged the accuracy of the information in this document. This also
contributed to the communication exercise. In summary, whilst Sasol may have
been over zealous and should have secured CINPF‟s consent from the outset,
the process went a long way to cover the communication exercise required by
rule 10.2.2. While there is room for the trustees of the CINPF to complete the
process, should they consider it necessary, by ensuring that at least certain of
those wishing to transfer are aware of the full implications and give their
explicit consent the process should certainly not start anew. This much was
conceded in argument before us. A relatively limited process may be necessary,
if at all. It would be most unfortunate if further undue delay took place when
members have been wishing to transfer since prior to August 2012.

[28] What is clear on any version, however, is that the CINPF did not make an
express decision that it was satisfied on the aspects referred to in rule 10.2.3.
This much was conceded by the appellants in argument. They accepted that the
trustees of the CINPF had to make a decision before a transfer can take place,
but sought to address the lack of an express decision in two ways.

[29] First, they submitted that the trustees had made a tacit decision. Using the
test accepted by this court for tacit contracts, this requires a finding that, on a
balance of probabilities, „an implication necessarily arises‟11 by virtue of the
conduct of the CINPF that it had made such a decision. But the evidence does
not support this contention. In its letter of 23 February 2013, the CINPF spoke
of still needing to be satisfied on a number of matters and recorded a belief that
it was of the view that the transfers would be prejudicial to at least some of the
members in question. This can hardly be construed as conduct consistent with
being satisfied that the transfers are reasonable and equitable and that they give
expression to the rights and reasonable expectations of the members concerned,
as the rule requires. No tacit decision was taken.

[30] The second attempt to overcome the lack of an express decision, was to
submit that, because the test for being satisfied is an objective one, the court
should itself have taken the decision. For this submission, the appellants relied
on the determination of the Financial Services Board of Appeal in AH Roy v
Registrar of Pension Funds & another.12 In that matter, however, a decision to
approve a scheme pursuant to s 14(1) of the Act had been taken. The aggrieved
party sought to have this decision set aside and the decision of the Appeal Board
substituted. In the present matter, I have found that no decision was taken,
whether express or tacit. It is not appropriate to make a decision when the
trustees have not made one. The authority relied on by the appellants does not
apply in this case.

[31] In any event, it is clear that the CINPF consistently raised concerns about
the housing loan issue. This is no trifling matter. The CINPF points out that it
offers loans of up to 80 percent of the members‟ fund credits. The new funds

11 Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506 (A) at 532H-533A.
12 Dated 18 July 2013 at para 8.

offer loans equal to only 25 percent. Some 21 percent of the 2444 have home
loans with the CINPF. Sasol‟s response to the concern expressed in the letter of
23 February 2013 on this issue was simply to the effect that transferring
members would have to settle their home loans. In its founding affidavit, the
CINPF gave examples of how this would affect the fund credit of certain
members. The only response given by Sasol in its answering affidavit was that
this ignores the fact that, once a loan is settled, a member will no longer have to
service that loan leaving more of the salary available for additional
contributions to the fund.

[32] One example given by the CINPF in its founding affidavit is of a 58 year-
old employee with a fund credit of R81 640.17. Of this amount R55 905.33 is
outstanding on his home loan. The tax liability on withdrawal of the latter
amount from his fund credit so as to settle his outstanding home loan is
R6 012.96. The fund credit which would be transferred would therefore be
R19 721.88. He has only seven years before retirement and it is inconceivable
that the fund credit would be reinstated by then. In these circumstances, it is
understandable that, in attempting to discharge their fiduciary duties, the
trustees would want to ensure that such a member fully understands these
implications. In these circumstances, it would most certainly not be appropriate
for a court to make a decision in their stead.

[33] I have mentioned that the rule 10.2.2 process may require completion and
that no decision was taken by the trustees to the effect that they were satisfied
on the two aspects dealt with in rule 10.2.3. It cannot be said that the provisions
of rules 10.2.1 to 10.2.3 have been complied with. The appellants accepted that
effect has not been given to rule 10.2.4. As such, transfers of the 2444 affected
members have not taken place. The court below was accordingly correct to
grant prayer 1 of the relief sought by the CINPF.

[34] Finally, although this was not argued before us or dealt with by the court
below, it should be mentioned that prayer 2 was also correctly granted by
Mayat J. Rule 3.5 provides as follows:
„If a Member transfers to another Approved Provident Fund or Approved Pension Fund in
any of the circumstances envisaged in these Rules and such transfer is subject to the
provisions of Section 14 of the Act, then it is specifically provided that with effect from the
effective date of transfer as specified in the Section 14 documentation, contributions in terms
of Rule 4 shall cease and in the event of his death or disablement, prior to transfer of his
benefit in terms of these Rules from the Fund to such other Fund, the death and disability
benefits referred to in Rule 6.1 (b) and Rule 7.2 respectively shall not be payable.‟
This makes it abundantly clear that, because the transfers are subject to the
provisions of s 14 of the Act, Sasol‟s contributions to the CINPF cease only
from the „effective date of transfer as specified in the Section 14
documentation‟. The trustees have not submitted an application in terms of s 14.
Until this is done and the trustees specify an effective date in it, Sasol's
contributions to the CINPF must continue.

[35] The following order is made:
The appeal is dismissed with costs, including those occasioned by the
employment of two counsel.

_______________________
T R Gorven
Acting Judge of Appeal

Appearances
For the Appellants:
AE Franklin SC (with him S Khumalo)

Instructed by: Bowman Gilfillan, Sandton

McIntyre & Van der Post, Bloemfontein

For the Respondent:
CE Watt-Pringle SC (with him JJ Meiring)
Instructed by: Mervyn Taback Inc, Johannesburg
Webbers, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

7 September 2015

STATUS

Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

SASOL LIMITED AND OTHERS v CHEMICAL INDUSTRIES
NATIONAL PROVIDENT FUND (20612/2014) [2015] ZASCA x (x
September 2015)

The SCA today dismissed with costs an appeal by Sasol Limited and
three pension and provident funds against an order in the Gauteng Local
Division of the High Court, Johannesburg upholding an application by
the Chemical Industries National Provident Fund (CINPF) and dismissing
a counter-application by Sasol and the appellant funds. Sasol contended
that 2 444 of its employees, who were members of the CINPF, had
transferred their membership to one of the appellant funds. It therefore
ceased payment of contributions of those members to the CINPF. The
CINPF approached the High Court for an order declaring that no such

transfer had taken place and requiring Sasol to continue making
contributions in respect of those members. Sasol counter-applied for a
declaration that such a transfer had taken place with effect from 1 March
2013. After construing the rules of the CINPF governing transfers, the
SCA upheld the judgment of the High Court to the effect that no such
transfer had taken place.