The surviving widow in a polygamous marriage with a deceased policeman, claimed that the Government Employee’s Pension Fund (GEPF) discriminated against women in polygamous marriages, after it refused to pay her the full pension benefit as she is now the only remaining spouse.
Florence Seloana turned to the high court sitting in Polokwane, in a bid to receive the full pension benefits of her late husband, Malesela Seloana.
She went to court to challenge the validity of certain of the pension fund’s rules. The basis for the challenge was that certain of the GEPF’s rules, unfairly discriminated against women who had been in polygamous marriages.
The court was asked to determine whether the rules resulted in different treatment for women in polygamy, as opposed to those who were in a monogamous marriage.
Her legal bid followed after the death of Malesela’s other spouse, Johanna Seloana.
Malesela died in December 2003. He served in the SAPS from 1955 until he retired in March 1991. Upon his retirement Malesela received his pension until the date of his passing.
The customary marriage between Malesela and Ms Seloana was concluded on 23 May 1987. By then he was already married, also in terms of customary law, to Johanna. The polygamous marriage lasted until he died.
At that time his two widows became entitled to be paid a pension from the fund in equal amounts. Thus, both received a half portion of a spousal pension, based on fifty percent (50%) of the deceased's pension during his life.
Johanna passed on in 2017, bringing an end to the payment of her portion of the spousal pension. This was about fourteen years after Malesela’s death.
Thereafter Ms Seloana (the applicant) continued receiving her spousal pension on the basis of the calculation (of half the benefits).
Having become the remaining spouse, she requested the pension fund to recalculate her spousal pension with the view that she would start receiving the full benefit, but this request was declined.
The explanation that was given to her was that it was not possible to recalculate the benefit.
Aggrieved by this, the widow was set on challenging the pension fund rule, which determined this on the basis that it did discriminate against women in polygamous marriages.
The pension fund argued that the particular court was the incorrect forum to adjudicate the application, as it involved issues of equality and discrimination.
Acting Judge Mokgerwa Makoti said the equal division, which occurs at the death of a pensioner, serves a legitimate purpose. It is to ensure that people married to the same person are benefited equally out of his or her pension.
Johanna died 14 years after the death of the deceased. During her life post the death of the deceased both she and the applicant, as surviving spouses, received their share of the pension and there was no question of unfair discrimination.
They both understood it to be inherent in the nature of their marriage to the deceased and that they were each entitled to receive equal portions of what was left of the pension benefits.
“The governmental purpose in this case, as I see it, is the protection of the interests of women in polygamous marriages. It is common cause that the rules do not cater for recalculation of pension benefits upon the subsequent death of one of the surviving spouses in polygamous marriages,” the judge said.
The payment of lesser benefits starts at the death of a pensioner and continues until the surviving spouse(s) also pass on.
“I am not satisfied that the rules discriminate unfairly against women in polygamous marriages and that they ought to be declared invalid. The result is that the application should fail,” the judge said.
Pretoria News