The eJoburg Retirement Fund has been ordered to revise a death benefit allocation after the High Court found the deceased’s alleged customary marriage was unlawful and the fund’s justification for allocating 15% of the benefit to the “customary partner” was legally defective.
The first applicant, “PM”, married the deceased, “JM”, in a civil marriage in 1996. She moved out of the marital home in 2007.
In 2019, JM nominated their two sons, “LM” and “TM”, each to receive 40% of his death benefit and his brother, “MM”, to receive 20%. JM died in 2020.
In May last year, the eJoburg Retirement Fund informed the deceased’s widow that it had allocated her R1 246 000 (15%) of JM’s total death benefit of R8 311 422. This allocation was based on the fact that she was legally married to the deceased, although they were estranged, and she was his dependant. The letter did not state how the balance of the benefit would be distributed.
PM objected to the allocation and demanded to be told how the total benefit would be allocated.
In June, the fund informed PM that it decided to award her the amount solely on the basis of her marriage, but it took into consideration that:
- She and the deceased had not lived together since 2007;
- She was employed and not entirely dependent on the deceased;
- She had not been included in JM’s nomination form; and
- The deceased had a customary wife, “MR”, who had supported him.
PM complained to the Pension Funds Adjudicator. She claimed 50% of the death benefit based on her marriage to JM and disputed the allocation to his customary wife.
The Adjudicator dismissed the complaint and endorsed the fund’s allocation, in terms of which both spouses received 15% each and the two sons 25% each, while JM’s mother, brother, sister and niece each received 5%.
PM and her sons applied to the High Court for an order, among other things, declaring the alleged customary marriage null and void and directing the fund and its principal officer to pay JM’s death benefit to the persons lawfully entitled thereto.
The ‘customary marriage’ was unlawful
The fund justified allocating of 15% benefit to MR on the basis of a lobola letter dated 24 February 2018 and on an affidavit by the deceased’s brother.
Judge Motsamai Makume said these documents neither proved nor disproved the existence of the customary marriage.
According to the third applicant, TM, MR was a helper who did housework once a week at the home. TM, who lived with his father at the time of his death, said there was no intimate relationship between his father and MR.
Judge Makume noted that:
- MR did not file an opposing affidavit.
- MR was married and could not have been legally married to the deceased by way of custom. The provisions of the Recognition of Customary Marriages Act require that before a man concludes a customary marriage during the existence of a civil marriage, the partner or wife in the civil marriage should consent to the second marriage.
In its opposing affidavit, the fund submitted that the reason for allocating 15% to MR was not her customary marriage to the deceased but that she was his dependant.
Judge Makume said the fund had not stated this in its correspondence with PM or the Adjudicator. It had raised MR’s dependency for the first time in the answering affidavit.
He said this was “disingenuous and bad in law”. The fund could not rely on new or additional reasons in a review application.
Judge Makume found that the fund’s decision to allocate a benefit to MR was based on the wrong reason and was irrational.
Strong case for dependency
PM withdrew her claim to 50% of the benefit. However, she wanted the fund to reallocate the 15% that was wrongly allocated to MR to her two sons, because they were students and needed the money.
The fund argued that once the trustees have made an award, they become functus officio (the decisions of officials are deemed to be final and binding once they are made) and could not reply to discussion on this matter.
Judge Makume said this was not the correct meaning of section 30P of the Pension Funds Act (PFA). Once a court has made a ruling setting aside a determination or a portion thereof, it was incumbent that the trustees carry out that order, he said.
He said the main function of section 37C of the PFA was to protect dependants.
The deceased’s sons were not only his dependants, but they were also heirs to his estate. Furthermore, they were nominated by the deceased and still attended school.
For these reasons, he said there was a strong case for the trustees to exercise their discretion in reallocating the now available 15% to JM’s sons.
Judge Makume set aside the 15% allocation to MR and ordered the fund to reallocate the 15% to persons lawfully entitled thereto, including the deceased’s sons.
The fund was ordered to pay the applicants’ costs.
