De Nysschen v Government Employees Pension Fund and Others

The appellant, Ms Petronella De Nysschen, was employed by the North West Province Department of Education from 15 January 1979 to 26 June 2013, and was a member of the Government Employees Pension Fund (GEPF). She was dismissed on 26 June 2013, and consequently received a net pension benefit of R5,194,418.72 from GEPF. She successfully challenged her dismissal at arbitration and was found to have been unfairly dismissed. On 27 May 2015, a Deed of Settlement was concluded providing that the Department would "reinstate the employee's pensionable years of service and benefits to the actuarial monetary value which the Employee would have been entitled to had the Employee not been dismissed." The Department paid R7,016,767.76 to GEPF for her re-admission to the fund. The appellant was reinstated and continued employment until retirement on 1 April 2020. When she submitted her completed pension exit documents showing pensionable service from 1979 to 2020, the Department refused to submit them to GEPF, demanding that the appellant first reimburse the R5,194,418.72 pension benefit paid to her after her dismissal. The appellant approached the high court seeking an order directing the Department to submit her exit documents. The high court granted the relief sought but additionally, without it being requested, ordered that the appellant pay the Department R5,194,418.72 to be deducted from her pension benefit.

• Whether a court can competently grant an order for payment of a debt that was not sought by any party
• The proper approach to pleadings and the determination of disputes based on what is pleaded
• Whether the Department was obliged to submit the appellant's pension exit documents to GEPF
• Whether the appellant was obliged to reimburse the pension benefit paid to her after her dismissal

The appeal was upheld with costs. Paragraphs 3.2 and 3.3 of the high court's order (relating to payment of R5,194,418.72 to the Department) were set aside. The order directing the Department to submit the appellant's exit documents to GEPF was retained.

A court cannot competently grant an order for payment of a debt or any other substantive relief that has not been sought by any party to the proceedings. The dispute between parties is defined by their pleadings. While courts may raise issues of law that emerge from the record where necessary for deciding the case, they may not grant substantive relief beyond what is claimed in the pleadings. Where a party wishes to claim payment of a debt or any other relief, it must set out a properly pleaded claim specifying the cause of action and the relief sought. A mere assertion or defence raised in answering papers does not constitute a claim entitling the party to substantive relief. It is improper and incompetent for a court to grant unsolicited relief, even on the basis of the "interests of justice."

The court noted that both the Supreme Court of Appeal and the Constitutional Court have repeatedly expressed the principle that disputes between parties are defined by the pleadings. Reference was made to Bliss Brand (Pty) Ltd v Advertising Regulatory Board NPC and Others [2023] ZACC 19 and other authorities cited therein. The court also observed that the Department had been given several invitations by the appellant to properly plead its claim if it wished to pursue repayment, but failed to do so. The court's comments suggest that had the Department properly pleaded a counterclaim with the necessary supporting allegations and relief sought, the outcome on the repayment issue might have been different, though the court did not express a view on the merits of such a potential claim.

This case reinforces fundamental principles of civil procedure in South African law regarding the limits of judicial power and the proper approach to pleadings. It confirms that courts cannot grant relief that has not been sought by parties, even if such relief appears to be in the "interests of justice." The case emphasizes that disputes are defined by the pleadings and that parties must properly plead their claims and specify the relief sought. This is particularly important in protecting litigants from being subjected to orders they have not had proper opportunity to address through pleadings and evidence. The judgment serves as an important reminder to courts to confine their decisions to the relief actually sought and to the issues properly raised in pleadings, except where legal issues fully emerge from the record and are necessary for the decision.