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.
Highlights
Before a discussion of the significance and potential impact of Smith v Eskom Pension and Provident Fund1 is possible, it is essential to examine the context in which it was decided briefly
The case was preceded by a period of uncertainty in South African pension law that was the result of the varying interpretations of the Pension Funds Act2 by previous adjudicators
Domestic partnerships were included in the Civil Union Bill 2006, which was adopted as a result of the Constitutional Court decision in Minister of Home Affairs v Fourie; Lesbian and Gay Equality Project v Minister of Home Affairs 2006 3 BCLR 355; 2006 1 SA 524 (CC); hereafter Fourie and Lesbian and Gay Equality Project)
Summary
Before a discussion of the significance and potential impact of Smith v Eskom Pension and Provident Fund is possible, it is essential to examine the context in which it was decided briefly. Ngalwana, following the decision in Volks v Robinson, held that a person who could have married a deceased pension member but chose not to, should not be accorded the rights of a spouse of a deceased member He ruled that in order to qualify as a dependant, the surviving cohabitants were to prove that the deceased was the dominant financial provider in their relationship.. Many pension funds either sought clarity from the Adjudicator or refused to consider surviving cohabitants as dependants on the authority of Volks and Van der Merwe v Central Retirement Annuity Fund.8 In response to this uncertainty and calls from the industry and legal commentators for the Adjudicator to clarify the legal position on cohabitees, the Adjudicator Mamodupi Mohlala determined Hlathi v University of Fort Hare Retirement Fund.. We outline some of the negative effects of Smith on the pension funds industry
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