Read the following extract from the judgment by Swain J in the Durban High Court in the case between Joint Natal Municipal Pension Fund v Endumeni Municipality and then draft a note on the outcome of the matter on appeal. Focus in detail on the criticism levelled by the SCA (per Wallis JA) against the interpretive approach that was adopted here by the Swain J. Focus in particular on the underlined portions of Swain J’s judgment.
“[24] Consequently, in my view, the ordinary meaning of the words in the second proviso to Regulation 1 (xxi) (h), in the context of the Regulations as a whole, by specific reference to Regulation 21, leads to the conclusion that it was not the intention of the draftsman of the Regulations, to enable the Fund to recover the entire amount necessary to remedy the effect of the “excessive” salary, by payment of one lump sum and only a claim for monthly contributions by the local authority was permitted. In addition, the fact that Mr. Maltman ceased to be a member of the Superannuation Fund on 30 June 2006, precluded
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the plaintiff from thereafter relying on the proviso, to claim a contribution. Consequently, in accordance with the first approach postulated in Dönges N.O. it becomes unnecessary to consider the background to the passing of the proviso, as well as its purpose.
[26] The warning of Corbett J A in Summit Industrial Corporation, that it is not the function of the Court to supplement a statutory provision in order to provide for a casus omissus is, in my view, of particular relevance on the facts of this case. As stated by du Plessis: “Where there is a casus omissus in the formulated text and that it, given its purpose and scope does not cater for a situation or an eventuality it can be expected to provide for, the courts have consistently refused to fill the gap”.
[27] It is clear that the purpose and scope of the proviso in question, and the mischief it was intended to remedy, was the recovery by plaintiff of any shortfall caused by a local authority, by way of excessive salary increases granted to its employees. The casus omissus however was that it failed to provide for the situation where the individual concerned ceased to be a member of the Fund, after receiving his benefits. By providing for the recovery of such a shortfall from the “the local authority employing such members” by way of “an adjusted contribution in terms of Regulation 21”, any such recovery was predicated upon the individual concerned continuing to be a member of the Fund, and continuing to be employed by the local authority in accordance with the employment contract, which gave rise to an increase in the pensionable emoluments “in excess of that assumed by the actuary”.
[28] If Maltman had continued to be a member of the Fund, in the employment of the defendant, in terms of the contract of employment which gave rise to the increase in excess of the assumptions of the actuary, the plaintiff would have been entitled to recover the excess by way of adjusted contributions, payable by the defendant, in an amount and for a time, specified by the committee acting on the advice of the actuary.
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[29] I therefore disagree that a consideration of the mischief that the proviso was sought to remedy, requires that a different meaning be ascribed to it, other than that which I have placed upon it. To ascribe the meaning to it contended for by Mr. Kemp S C would, in my view, constitute an attempt to cater for a situation or eventuality, which it could have been expected to cater for, but did not.
[30] Simply put, the so-called “mischief rule” which is nothing more, nor less, than an aid to interpreting a statute, cannot be used as a means to cater for a situation or eventuality that the legislation was intended to provide for, when it is clear on the wording of the statute that it does not do so, and the failure so to provide, is simply a casus omissus, on the part of the legislature.