Examining the provision of pension death benefits to co-habitees or life partners under the South African Pension Funds Act of 1956

Abstract

The purpose of this article is to reflect on the determination in Chittenden and demonstrate its significance to the emerging jurisprudence on South African pension law relating to death benefits. Although Chittenden dates back 5 years ago, it remains important to discuss it and others for the following reasons. First, there has been no academic treatment of the determination in Chittenden and others. Second, in light of the South African Constitutional Court decision in Volks a grey area has arisen in pension law, and requires some academic treatment of the determination in Chittenden and others. According to the interpretation of the Pension Funds Act by the former Adjudicator John Murphy, the board has the discretion to accord to same sex couples and co-habitees or life partners the same rights as are accorded to heterosexual married couples. Murphy's interpretation differs from that of the recently former Adjudicator Advocate Vuyani Ngalwana who, following the recent decision in Volks held that a person who could have married a deceased pension member but chose not to should not be given the rights of a spouse of a deceased member. These conflicting interpretations have a bearing on the two-prong dependency test as developed and applied by the Adjudicator. Lastly, in light of the changing societal views regarding non-traditional relationship like cohabitation and life partnerships, it is important to examine how the pension law is adapting to these changes through the application of the dependency test. I argue in this article that the dependency test relied upon in this determination, which has been applied by the Adjudicator since 1998, should be welcomed because it advances the legislatures’ intent contained in the Pension Funds Act by requiring that death benefits payable by pension fund in the event of death of a pension member be distributed in accordance with a legislative scheme, which gives preference to need and dependency above the deceased pension member's freedom of testation. This article also argues that Chittenden (and others like it) is not undermined by Van der Merwe v. Central Retirement Annuity Fund, but remains good law in the framework of the distribution of death benefits to non-traditional couples.