In South Africa, the death of a breadwinner can leave their dependents destitute. Earlier this month, the Constitutional Court handed down a key ruling on the interpretation of section 37C of the Pension Funds Act (‘the PFA’). In a progressive judgment, the Court reaffirmed the ‘social security purpose’ tied to the distribution of death benefits, which protects vulnerable dependents and provides much-needed clarity to pension funds.
In Mutsila v Municipal Gratuity Fund and Others, our country’s apex court embarked on an interpretation of section 37C of the PFA¸ which governs the fair distribution of death benefits to a deceased member’s dependants, for the first time. In this case, Ms Mutsila (‘the Applicant’), who was widowed after her late husband died at work, challenged the Municipal Gratuity Fund’s decision to allocate a portion his death benefit to a third party, Ms Masete, and her children. After Ms Masete claimed to have been married to the deceased in terms of customary law, the Fund (‘the Respondent’) recognised both parties’ claims and split the benefit. Initially, the Applicant lodged a complaint with the Pension Funds Adjudicator in which she claimed that Ms Masete was neither married to nor factually dependent on the deceased, and that her children were not his dependents. The Adjudicator found that the Respondent had failed to properly investigate dependency, which is required under section 37C of the PFA, and accordingly set aside the decision.
The Respondent’s legal challenges in the High Court proved unsuccessful. The Supreme Court of Appeal (‘the SCA’), however, ruled in its favour. The SCA found that factual dependency was never disputed and reinstated the original allocation.
On appeal, the ConCourt carefully considered the ambit of section 37C of the PFA. Section 37C empowers a fund to allocate and distribute death benefits to one or more dependants ‘as may be deemed equitable by the fund.’ The ConCourt confirmed that this discretion is broad, and a fund’s decisions are reviewable only if unreasonable or improperly exercised. In the circumstances, it found that the Respondent had relied on unsubstantiated information and failed to properly investigate the factual dependency of Ms Masete and her children. The extent of dependency is a critical factor in making an equitable allocation, and this inadequate investigation nullified the Respondent’s decision.
Significantly, the ConCourt clarified the law on determining dependency under section 37C. In Fundsatwork Umbrella Pension Fund v Guarnieri, the SCA held that factual dependency should be assessed at the date of the distribution. However, the ConCourt identified this approach as flawed. Noting the social security function of pension funds and their impact on a large population of vulnerable dependants, the Court held that dependency should instead be determined – on objective facts – as at the date of the member’s death, while allowing funds a twelve-month period to investigate.
Under this approach, any changed circumstances at the time of distribution may be taken into account by funds for allocation purposes, but the status of a dependant – whether factual or legal – as determined at death remains valid. The ConCourt further rejected the proposition that a person must still qualify as a beneficiary at the time of distribution, which otherwise undermines the social security purpose.
Ultimately, the ConCourt remitted the matter back to the Respondent to conduct a thorough investigation, identify all correct dependents, and determine an equitable allocation of death benefits.
Reinforcing that death benefits from retirement and pension funds serve a social security function, the ruling provides clarity on determining factual dependency under section 37C of the PFA and confirms funds’ obligations to safeguard vulnerable dependants.
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