How Could the Pension Funds Adjudicator Get it so Wrong A Critique of Smith v Eskom Pension and Provident Fund
DOI:
https://doi.org/10.17159/1727-3781/2010/v13i2a2646Keywords:
Pension Funds Act, Pension Funds Adjudicator, cohabitation, marriage, spouse, dependants, mutual dependency, spouse’s benefit, pension fund rules, women’s rights.Abstract
In this case note the judgment in the Smith case is criticized for being inconsistent with the landmark ruling in Volks. It is argued that the Adjudicator ought to have remanded the matter in Smith to the Board and ought to have ordered it to re-examine its discretion with a focus on a set of factors. Some of the negative effects of Smith on the pension funds industry are also outlined. While the authors express their understanding that the Adjudicator's decision in Smith was made with the rights of women in mind, they believe that her reasoning was wrong. She may have arrived at the same decision on different reasoning. In order to prevent the negative effects of Smith on the pension funds industry, it is recommended that the Adjudicator, when given an opportunity, should overrule the precedent set in Smith. Failure to do so would create the risk of the inconsistent application of the term "spouse" under South African law, or at the very least in relation to acts of Parliament administered by the National Treasury, which may potentially violate the equality provisions of the Constitution.
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Register of legislation
Civil Union Act 17 of 2006
Constitution of the Republic of South Africa, 1996
Maintenance of Surviving Spouses Act 27 of 1990
Pension Funds Act 24 of 1956
Pension Funds Amendment Act 11 of 2007
Register of government publication
Domestic Partnerships Bill (draft) GN 36 in GG 30663 of 14 January 2008
Register of court cases
Abrahamse v Connock's Pension Fund 1963 2 SA 76 (W)
Barry v Standard Bank Group Retirement Fund 2005 3 BPLR 242 (PFA)
Dawood and Another v Minister of Home Affairs and Others 2000 8 BCLR 837; 2000 3 SA 936 (CC)
De Wilzem and Another v South African Retirement Annuity Fund 2005 2 BPLR 180 (PFA)
Ditshabe v Sanlam Marketers Retirement Fund and Another 2 2001 10 BPLR 2579 (PFA)
Gowing v Lifestyle Retirement Annuity Fund and Others 2007 2 BPLR 212 (PFA)
H v Bidcorp Provident Fund and Another 2008 1 BPLR 19 (PFA)
Hildebrand v Telkom Retirement Fund and Others 2005 5 BPLR 405 (PFA)
Hlathi v University of Fort Hare Retirement Fund and Others 2009 1 BPLR 37 (PFA)
Marion v Avusa Limited Pension Fund 2009 1 BPLR 63 (PFA)
Maritz v Absa Groep Pensioenfonds PFA/GA/1387/00/KM (unreported)
Martin v Beka Provident Fund 2000 2 BPLR 196 (PFA)
Minister of Home Affairs and Another v Fourie and Another (Doctors for Life international and Others Amici Curiae); Lesbian and Gay Equality Project and Eighteen Others v Minister of Home Affairs and Others 2006 3 BCLR 355; 2006 1 SA 524 (CC)
Nova Scotia (Attorney General) v Walsh 2002 SCC 83
Robinson and Another v Volks NO and Others 2004 6 BCLR 671 (C); 2004 6 SA 288 (C)
State v Mhlungu and Others 1995 3 SA 867 (CC)
Satchwell v President of the Republic of South Africa and Another 2002 9 BCLR 986; 2002 6 SA 1 (CC)
Smith v Eskom Pension and Provident Fund 2009 3 BPLR 343 (PFA)
Tek Corporation Provident Fund and Ten Others v Lorentz 2000 3 BPLR 227 (PFA)
Van der Linde v Telkom Retirement Fund 2004 11 BPLR 6257, 6259 (PFA)
Van der Merwe and Another v Central Retirement Annuity Fund and Another 2005 5 BPLR 463 (PFA)
Van der Merwe and Others v Southern Life Association and Another 2000 3 BPLR 321 (PFA)
Volks NO v Robinson and Others 2005 5 BCLR 446 (CC)
Zantsi v Council of State, Ciskei and Others 1995 4 SA 615 (CC)
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Copyright (c) 2017 Ntombizozuko Dyani, Mtendeweka Owen Mhango
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