Durban - The definition of a “full time” university student has come under scrutiny in a Durban High Court case that could have massive implications for members of the South African Local Authorities pension fund.
The case, which the Durban Legal Resources Centre says could set a legal precedent, has been brought by the pension fund to appeal against a decision by an adjudicator who found that Durban resident Mbali Mthembu was entitled to benefits from her father’s pension fund after she turned 18, because she was a full-time student. The pension fund said the adjudicator’s decision was wrong because Mthembu was registered at the University of South Africa (Unisa), which was a “part-time” distance learning institution.
Mthembu’s father, Bheki Khanyile, who was a member of the fund as an employee of the Umdoni Municipality, died in 2002.
Mthembu’s mother, Simamgele, received benefits from the fund for her daughter, but the money stopped in 2011 after she turned 18.
According to the scheme’s rules, a child can only receive benefits up till 23 if she is registered as a full-time student.
Mthembu enquired about the stoppage of funds and then submitted a letter from Unisa to the fund to confirm she was enrolled for courses.
Mthembu was studying for a BCom degree.
The fund found that the institution was for part-time study, and refused to pay benefits for 2011 and 2012.
Mthembu, who is now studying at the Nelson Mandela University of Technology, laid a complaint and a pension fund adjudicator ruled in her favour, but the fund took that decision on appeal.
On Friday, advocate Alan James Lamplough, acting for the pension fund, said the case had caused a “lot of investigation and debate with the organisation”, and was possibly the first of its kind.
He argued that Mthembu was not a full-time student because Unisa stated on its website that all its students studied part-time.
“The pension fund rules stipulate that the benefit is only for full-time students who are precluded from supporting themselves by their studies.”
He said “full-time student” referred to courses that were designed in a manner that required mandatory attendance of classes, and for the courses to be completed during a specific period.
Lamplough argued that if the court found the fund’s interpretation of a full-time student was incorrect, then Mthembu’s case would still fail because she had not put up any evidence to show she was doing full-time studies.
Advocate Rajesh Choudree SC, acting for Mthembu, argued that the outcome of the case could result in the fund “revisiting” its rules, and this could have an impact on other students who found themselves in similar situations.
He said Mthembu had been a “full-time student” and had taken five subjects per semester and attended discussion classes.
“For two years this family was put through a difficult time because the fund was trying to wriggle out of what was just and fair.”
Legal Resource Centre head Mahendra Chetty said that the centre had taken up Mthembu’s case because a decision would have an impact on other students in a similar position.
“It would have been too expensive for Mbali’s mother, as a single parent, to defend this case, and it could affect students, especially black students, who are forced, due to financial circumstances, to study at Unisa.”
Judgment was reserved.
The Mercury