Pension Fund ordered to pay for costs of DNA test, if it requires one
A pension fund has been slated by the Deputy Pension Funds Adjudicator for not including a deceased member’s life partner and child in the distribution of the deceased’s death benefit.
Masakhane Provident Fund’s decision to distribute fifty percent of the death benefit was set aside and it was ordered by Deputy Adjudicator, Advocate Matome Thulare, to determine an equitable distribution of the whole of the deceased’s death benefit (not just the remaining fifty percent).
The deceased member died leaving behind his permanent life partner who was pregnant at the time of his death and financially dependent on him. The life partner gave birth to the child after the deceased died. The status of the life partner as a spouse and the paternity of the child appeared to be supported by the family members of the deceased. The deceased’s son (from another relationship) had assisted the life partner in submitting her claim to the fund. The fund never contacted the life partner directly during its investigations and eventually decided to exclude the child and the life partner from the distribution of the deceased’s death benefit.
The life partner heard about the fund’s decision from a friend and upon enquiry with the fund she was told by the fund to communicate with the family of the deceased about a DNA test. However, the family denied being aware of this. In her complaint to the Adjudicator, the life partner submitted that she requested a full explanation from the fund. However, this was met with threats by a certain Ms Makabeni that she would not receive anything without the paternity test. The life partner submitted that she did not object to a DNA test (and attached copies of correspondences exchanged with the fund as proof of same) but also pointed out that she was nominated by the deceased and, therefore, deserved to be treated with respect.
In response to the complaint, the fund submitted that it was willing to redistribute the death benefit on condition that the child undergoes a DNA test.
The Deputy Adjudicator took issue with the response from the fund as being grossly inadequate and, in some respects, misleading because the mother of the child had always indicated to the fund that she was willing to subject the child to a DNA test.
In this regard, the Deputy Adjudicator said of the fund’s response: “In the first instance, it fails to take into account that the complainant has already indicated her willingness to subject the child to a DNA test and submits that the complainant refused a DNA test. Unfortunately for the first respondent, this is not borne out in the correspondence attached to the complaint. In the said correspondence, the complainant clearly stated her position as not objecting to a DNA test.”
Despite this the fund requested the Adjudicator to dismiss the complaint on the basis of her refusing to agree to a DNA test alternatively the fund requested that the Adjudicator order the complainant to subject the minor child to a paternity test.
The Deputy Adjudicator found that the fund was attempting to shift the blame for its failure to conduct a proper investigation and that the fund failed to explain its reasons for excluding the permanent life partner. In this regard, the Deputy Adjudicator said that the fund’s attempt to explain away its failure by relying on the absence of a DNA test conflated issues between that of the permanent life partner’s dependency and the child’s dependency. In this regard, he said: “It is not clear how the complainant’s dependency or nomination can be forfeited by the absence of a DNA test…”
The fund failed to answer the allegation made by the life partner that she was a nominee of the deceased and had also failed to respond to several attempts by the complainant to get an explanation. In this regard, the fund was found to have failed to comply with its fiduciary duties in terms of the Pension Funds Act.
Advocate Thulare found that there was no dispute about the permanent life partner’s status as a spouse of the deceased or the paternity of the child, and felt that there was no need for a DNA test but that if the fund wanted to have one done then it should be ordered to pay for it.
The fund was ordered to pay for all costs associated with the DNA test including the costs of reasonable transport and accommodation where necessary, if the fund required a DNA test to be conducted. The Deputy Adjudicator remarked that the complainant may have to travel with the child for the purposes of conducting the DNA test and, therefore, any travel and accommodation must be suitable.