Court confirms ex-spouses access to pensions

Published Apr 2, 2012

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The Constitutional Court on Friday confirmed the declaration by the Western Cape High Court of the constitutional invalidity of the “clean-break” principle of the Government Employees Pension Law.

The so-called “clean-break” principle was incorporated into the Pension Funds Act in 2007. The judgment allows for a non-member spouse to claim and receive a portion of a member’s pension interest that is assigned to him or her in terms of a divorce order as at the date the divorce is granted.

The Government Employees Pension Fund (GEPF) is regulated by the Government Employees Pension Law and not by the Pension Funds Act.

Non-members of the GEPF were denied their share of the pension benefit immediately upon divorce or on dissolution of a customary marriage.

They had to wait until their member and former spouse became entitled to his or her pension benefit. This was the subject of a challenge in the Western Cape High Court.

Mathilda Wiese submitted that it was unfair for the GEPF not to allow her access to the pension benefits that were awarded to her in terms of a divorce order.

The court found in her favour and declared it unconstitutional as the GEPF failed to give former spouses of members the same rights as those afforded to spouses of members of pension funds falling within the ambit of the Pension Funds Act.

It granted Parliament a year to amend the Government Employees Pension Law so that the GEPF could amend its rules.

The High Court’s declaration was referred to the Constitutional Court for confirmation. The suspension of invalidity was appealed by Wiese.

While the proceedings in the Constitutional Court were pending, Parliament amended the law. Wiese and the GEPF agreed that the amendment disposed of the main issues before the Constitutional Court and the matter had become moot.

The court found that although the absence of a live controversy did not constitute an absolute bar to justifiability, the matter had become moot in the light of the amendment. It could still consider the question of costs.

As to costs on appeal, the court held that the minister of finance had a duty to pass the amendment without delay. Had the minister given Wiese an assurance that this would be done, she might not have approached the court for relief. She was therefore entitled to costs on appeal. - Wiseman Khuzwayo

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