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[2024] ZALMPPHC 21
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Seloana v Government Administration Agency and Others (7633/21) [2024] ZALMPPHC 21 (11 March 2024)
FLYNOTES:
FLYNOTES: PENSION – Polygamous marriage – S
pousal
pension on death – Police officer receiving government
pension – Married to two customary law wives –
On his
passing they both received half-portion of spousal pension –
On death of other spouse, applicant sought recalculation
and this
refused – Applicant seeking to challenge pension fund rule
on grounds that it discriminates against women
in polygamous
marriages – Rules do not cater for recalculation of pension
benefits in these circumstances – Court
not satisfied that
rules discriminate unfairly against women in polygamous marriages
– Application dismissed.
REPUBLIC
OF
SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7633/21
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
11/03/2024
In
the matter between:
FLORANCE
MATSHELANA
SELOANA
Applicant
And
THE
GOVERNMENT
ADMINISTRATION
AGENCY
First
Respondent
GOVERNMENT
EMPLOYEE'S PENSION FUND
Second
Respondent
MINISTER
OF FINANCE
Third
Respondent
MINISTER
OF
JUSTICE
AND
CORRECTIONAL
Fourth
Respondent
SERVICES
Delivered:
This judgment is handed down electronically by circulation to the
parties through their legal representatives' email
addresses. The
date for the hand-down is deemed to be 06 March 2024.
JUDGMENT
Makoti
AJ
Introduction
[1]
The
applicant is
Ms
Florence Matshelana Seloana
(Ms
Seloana), who was a participant in a polygamous marriage with the
late
Mr
Malesela Frans Seloana
(Malesela
or the deceased). She
comes to court as a widow to
challenge the
validity of certain pension fund rules. The basis for the challenge
is that rule 14.6 of the Rules of the Government
Employees Pension
Fund (the rules) unfairly discriminates against women who are in
polygamous marriages. The other spouse who,
together with Ms Seloana,
survived the deceased was the late
Ms
Johanna Manyatja Seloana
(Johanna).
[2]
The
application is opposed by both the
Government
Pensions Administration Agency
(GPAA) and the
Government
Employees Pension Fund
(GEPF),
the first and second respondents in this application. The other
respondents including the Minister of Finance and the Minister
of
Justice and Correctional Services are not opposing
the application.
For purposes
of
convenience,
I
shall
refer
to GPAA
and
GEPF
collectively as the respondents.
The
issues for consideration
[3]
There
are a number of issues for consideration, central to which lies the
question whether rule 14.6.2 of the rules discriminates
against women
in polygamous marriages. This involves two considerations, the first
being whether the rules cause different treatment
for women who are
in polygamy as
opposed to those who
are in a monogamous
marriage
of two spouses. The second consideration is whether, if the rules do
discriminate
on
the basis suggested, they are invalid and should be struck down.
[4]
Prior
to dealing with the question above I need to describe the
nature of the right
which is the subject of this litigation, and engage with the question
of this court's jurisdiction to adjudicate
this application. Then,
there are ancillary orders that the applicant has prayed for, but
which can only be entertained if the
court has jurisdiction. The last
issue is a consideration of costs.
Background
facts
[5]
The
record shows that Malesela died on 01 December 2003. In his working
years Malesela was employed in the public service, becoming
a member
of the GEPF, as a police officer. He served in the force from 10 June
1955 until he retired on 31 March 1991. Upon his
retirement Malesela
received his pension
until the date of his passing on 01 December 2003.
[6]
The
customary marriage between Malesela and Ms Seloana was concluded on
23 May 1987. By then he was already married, also in terms
of
customary law, to Johanna. The validity of the marriage between Ms
Seloana and
Malesela
is not
at
issue. The polygamous marriage lasted until the deceased met his
death.
[7]
When
Malesela passed on Ms Seloana and Johanna became entitled to be paid
a pension from the GEPF, in equal amounts. The determination
of what
each was entitled to was made in accordance with the impugned rule
14.6 of the rules. Thus, both received a half portion
of a spousal
pension, based on fifty percent (50%) of the deceased's pension
during his life.
[8]
In
the course of time Johanna also passed on, on 30 September 2017,
bringing an end to the payment of her portion of the spousal
pension.
This was about fourteen years after the deceased's death. Thereafter
Ms Seloana continued receiving her spousal pension
on the basis of
the calculation mentioned earlier, and still does. There is no
controversy with regard to that and the parties
are
ad
idem
that
she continues to receive her determined spousal pension.
[9]
Having
become the remaining surviving spouse, Ms Seloana requested the GPAA
and GEPF to recalculate her spousal pension with the
view that she
would start receiving the full benefit. It is common cause that her
request was declined. The explanation that was
given to her was that
it was not possible to recalculate the benefit. She is aggrieved by
the refusal to recalculate her spousal
pension and the explanation
provided. This application was instituted to challenge the rule on
which the decision taken by the
GPAA and the GEPF was based, the
substratum of which challenge is that the rule unlawfully
discriminates against women in polygamous
marriages.
The
nature of the pension benefit
[10]
The
benefits under the pension scheme in order to accrue to a surviving
spouse are triggered only by the death of a member. which
in this
case is the deceased Mr Seloana. A surviving spouse benefits from 50%
of the annuity that was paid to the member. The benefit
paid to a
surviving spouse upon the death of a pensioner does not devolve and
may not be passed from the surviving spouse to further
beneficiaries.
The benefit
terminates upon the death of a surviving spouse.
[11]
Surviving
spouses
are
dependents
[1]
who
were involved
with
a
deceased
pensioner in a polygamous union receive, and who receive equal
divisions from 50% of the annuity which was payable to that
pensioner. There is no controversy
that
has been raised in this application concerning the equal division,
that is, when vesting occurs at the date of the death of
the
pensioner.
[12]
Ms
Seloane and Johanna, as dependents, were paid benefits as prescribed
by the Board
[2]
in
terms
of
the rule. The impugned rule 14.6.2 was prescribed
by
the
Board in accordance with the empowering provisions of our pension
fund laws. This is common cause.
[13]
There
seems to be common acceptance that the equal division, which occurs
at the death of a pensioner, serves a legitimate purpose.
The purpose
is to ensure that people married to the same person are benefitted
equally out of his or her pension. In other words,
the vesting of a
right to the pension benefit at the time of the death of the
deceased. The date on which the beneficiaries of
the deceased, as
well as their rights, are determined then. Before then, none of the
potential beneficiaries of the deceased acquire
any right, including
the right to pension benefits.
[3]
I now turn to consider the issues in dispute.
Whether
the court has jurisdiction to adjudicate this application
[14]
Both GPAA and the
GEPF contend that this court is the incorrect forum to adjudicate the
application. They base their contention
on the concession by Ms
Seloana that the application is governed by the provisions of the
Promotion of Equality and Prevention
of Unfair Discrimination Act,
2000 (Act No. 4 of 2000,
hereafter PEPUDA).
The contention
is
that the principle of
subsidiarity
does not permit that
an application of
this
nature be based
directly on
the
provisions of the
Constitution.
[15]
These
respondents
did
not
upfront
raise
an
objection
to
the
high
court's
jurisdiction.
They took the point in their heads of argument and, despite the
passage of time since the exchange of the affidavits
inter
partes,
they
did not attempt to file a further affidavit to bring the point to the
fore. As this was raised in heads of argument, it is
difficult for me
to deny Ms Seloana an opportunity to be heard by dismissing the
application when the respondents have not afforded
her the
opportunity to address the question in an affidavit. This is an
ambush which should not be permitted.
[4]
I do not stop
here
but
proceed
to
deal
with the substance of
the
jurisdictional
challenge.
[16]
It
cannot be disputed that section 8 of PEPUDA prohibits unfair gender
discrimination and on the grounds listed in it. The specific
provisions of
sub-paragraph
(g) deal with
prevention of
unfair
discrimination
on
gender basis,
including by:
"...
limiting
women's access to social services
or benefits, such
as health, education and
social security:"
(Emphasis
added)
[17]
The
Applicant engages the jurisdiction for this Court from the provisions
of section 172(1)(a) of the Constitution, which enjoins
the Court to
declare any law or conduct that is inconsistent with it to be invalid
to the extent of the inconsistency. It is the
case for both the GPAA
and GEPF that because
this application should have been lodged at the Equality Court,
sitting in the High Court or Magistrates Court,
as it is about to the
alleged denial or limitation of social security benefits to Ms
Seloana.
[18]
In
bolstering their opposition grounds, the respondents referred to a
specific paragraph of the founding affidavit which reads as
follows:
"...
it
must
be
shown
that
the
law
in question serves a
constitutionally acceptable purpose, and that there is sufficient
proportionality between
the
harm done by the law and
the
benefits it is
designed to
achieve."
[19]
The
GPAA and GEPF did not raise the issue of jurisdiction in their
answering affidavit and merely noted the allegation in the founding
affidavit which alleged the jurisdiction of the Court. When
responding to the allegation of jurisdiction the respondents merely
said:
"The
First and Second Respondent notes the contents of these paragraphs."
The
constitutional provision which is relied on by Ms Seloana, section
172(1)(a), reads as follows:
"When
deciding
a
constitutional
matter
within
its
power,
a
court
-
(a)
must
declare
that
any
law
or
conduct
that
is
inconsistent
with
the Constitution is
invalid to
the
extent of the
inconsistency;»
[20] It
is important that the Constitution uses the phrase 'a
court
-
which must be interpreted as including any court which is empowered
to determine the issue. I would assume without making a finding
that
a court includes the Equality Court when sitting as a.High Court. I
am not oblivious of the fact that the Equality Court is
a creature of
statute and can exercise only the powers that are conferred by an
empowering provision. I will elaborate on this
later.
[21]
The
principle of subsidiarity has been part of our law for some time now
and has been discussed in a number of authorities. In
Solidariteit
v Minister of Basic Education
[5]
the
court dealt with a claim of unfair discrimination against a state
bursary scheme which was incorrectly brought and defended
under the
Constitution.
Despite
this development, our courts have routinely overlooked the principle,
much to the displeasure of the Constitutional Court.
In
De
Lange v Presiding Bishop of the Methodist Church of Southern Africa
for the time being and Another
[6]
that
court rejected a challenge on appeal on the basis that the case was
not instituted in the High Court sitting as an Equality
Court.
[22]
It
is so that PEPUDA empowers the Equality Court to issue declaratory
orders, to declare conduct to be discriminatory and to order
corrective steps. Then, section 172(2)(a) of the Constitution
provides that the Supreme Court of Appeal, the High Court or a court
of similar status may make an order concerning the constitutional
validity of an Act of Parliament, a provincial Act or any conduct
of
the President, but an order of constitutional invalidity has no force
unless it is confirmed by the Constitutional
Court.
[23]
The
Equality
Court
in
Dean
of
the
North
West
University
v
Masis
[7]
(Masis1)
had
struck
down the provisions of certain legislative or policy instruments
of
the university. On appeal to the SCA the Equality Court judgment was
overturned on a different basis and without the appeal court
answering the question whether the Equality Court could declare
legislative prescripts constitutionally invalid.
[24]
Before
Masisithe
SCA
had dealt with the jurisdiction of the Equality Court in
Manong
[8]
where
it was explained that the latter court is a
special
court -
a
creature
of
statute. It was held that the Equality Court is a separate and
distinct court with powers specified in its empowering statute.
That
is not a High Court with all its trappings and powers. High Courts
have inherent powers to protect and regulate their own
process, while
Equality Courts do not, so it was expounded by the SCA. The Court
also said that:
"[53] It
is abundantly clear that the Equality Court was established in order
to provide easy access to justice
and to enable even the most
disadvantaged individuals or communities to walk off the street, as
it were, into the portals of the
Equality Court to seek speedy
redress against unfair discrimination, through less formal
procedures.
And
[65]
High courts have
inherent power to protect and regulate their own process. Equality
courts do not. The provisions of the Supreme
Court Act and! the
Uniform Rules do not provide for this inherent power and can
therefore not be sourced through the Equality Act.
The Equality Court
has only those powers and functions set out in the Equality Act."
[25]
Recently,
in
Qwelane,
[9]
when
attacking
the
constitutional
validity
of
the
Equality
Act,
the applicants took that battle to the High Court and it saw no
difficulty in
entertaining
the application. This was despite the fact that an equality case had
been lodged against the applicants. The Constitutional
Court took no
issue with the fact that the constitutional attack of the legislation
was taken to the High Court and not the Equality
Court, perhaps
because
Qwelani
had
not
raised an issue of
discrimination.
[26]
What
I take out of this is that the Equality Court does not have
jurisdiction to strike out legislation on the basis of constitutional
invalidity. The Act which created it has not given it such powers
and, as a result, it is not allowed to determine the constitutional
validity of any legislative instrument, including the rules which
have been published in terms of legislation regulating pensions
in
the public service.
[10]
Section 1 of the statute states that the law •...
includes
the rules"
and,
accordingly, striking out the rules would impact the statute.
[27]
I
am not oblivious of the fact that where a court has jurisdiction to
deal with one cause of action, including as assigned in terms
of
statute, it shall also have the capacity to adjudicate any ancillary
issue
that may arise out of the same case. This accords with the provisions
of the Superior Courts Act,
[11]
which, based on the authority
in
Manong
does
not apply to the Equality Court. In
South
African Human
Rights
Commission obo South African Jewish Board of Deputies v Masuku and
Another
[12]
the
court said the following:
"[112]
The denouement of the
above is that the hate speech provisions of the Equality Act are
clearly designed to give scope to section
16
of the Constitution,
which at section 16(2)(c) carves out hate speech from constitutional
protection. In this regard, this fits
within the second line of cases
identified above, where the legislation attempts to codify
a right in the Bill
of Rights. Thus, the principle of subsidiarity must apply so that,
unless
there is a direct frontal challenge to the hate speech provision of
the
Equality
Act (section 10(1})
.
a court must adjudicate the dispute with regard to that provision,
and not with direct reliance on section 16(2) of the Constitution."
(Emphasis added)
[28]
The
use of the word
unless
signifies
that a departure from the norm of subsidiarity could be allowed in
appropriate circumstance. Not ignorance of the subsidiarity
principle, but a departure when the peculiar circumstances of the
case so warrant. I also understand this authority to imply that
where
there is a frontal attack on the provisions of the law, including the
Equality Act, a High Court may be approached
to adjudicate the
case.
[29]
I
am of the view that this application involves more than just the
question unfair discrimination, but an attach of legislation
which
the high court can adjudicate. On that basis and In view that there
was no
proper
challenge raised in
limine
by the respondents,
and in line with the authorities that I have traversed above, the
technical point is dismissed.
Whether
the
impugned
rule
is
discriminatory
[30] I
risk repetition by mentioning that the rule is said to be
discriminatory as it breeds fertile
ground for different treatment as
between women who are in polygamous marriages and those who are not.
The impugned rule 14.6.2
reads thus:
"If
a pensioner dies and he is survived by a spouse, there shall be paid
to such spouse a spouse's pension which is equal to
one half of the
annuity which the pensioner received on the date of his or her death,
... Provided further that where there is
more than one spouse, the
spouse's pension will be divided equally among
the
spouses. ;"
[31]
This
rule is challenged on the basis that it does not cater for
recalculation of pension benefits when one of the surviving spouses
dies, that is after the death of the pensioner. On that score, it is
averred, it discriminates on a listed ground of gender because,
self-evidently, polygamous unions are commonly between one man and a
number of women. Further, that other women who are not in
polygamy
are not affected by the rule.
[32]
There
can be no gainsaying that unfair discrimination is constitutionally
repugnant, and may not be perpetuated by anyone whether
doing so as
part of the state or as a private individual
[13]
This is so serious that the Constitution required an enactment of
legislation to
specifically
deal
with
and
prevent
unfair discrimination.
[14]
[33]
A
two stage inquiry is required to determine whether conduct, law or
policy discriminates unfairly. That was dealt with in
Harksen
v Lane NO
in
the following manner:
"At
the cost of repetition, it may be as well to tabulate the stages of
enquiry which become necessary where an attack is made
on a provision
in reliance on section 8 of the interim Constitution. They are:
(a)
Does
the provision
differentiate
between
people
or categories of people?
If
so, does the differentiation bear a rational connection to a
legitimate government purpose? If it does not then there is a
violation
of section 8(1). Even if it does bear a rational
connection, it might nevertheless amount to discrimination.
(b)
Does
the differentiation amount to unfair discrimination? This requires a
two stage analysis:
(b)(i) Firstly,
does the differentiation amount to "discrimination"? If it
is on a specified
ground, then discrimination will have been
established..If it is not on a specified ground, then whether or not
there is discrimination
will depend upon whether, objectively, the
ground is based on attributes and characteristics which have the
potential to impair
the fundamental human dignity of persons as human
beings or to affect them adversely in a comparably serious manner.
(b)(ii) If
the differentiation amounts to "discrimination", does it
amount to "unfair
discrimination"? If it has been found to
have been on a specified ground, then unfairness will be presumed. If
on an unspecified
ground, unfairness will have to be established by
the complainant. The test of unfairness focuses primarily on the
impact of the
discrimination on the complainant and others in his or
her situation.
If,
at the end of this stage of the enquiry, the differentiation is found
not to
be
unfair, then there will be no violation of section 8(2).
(c)
If
the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitations clause (section 33
of the interim
Constitution)." (Emphasis added)
[34]
On the contentions by
Ms Seloana, the rules create differentiation between people who are
married in and those who are not in polygamy.
The respondents, on the
other hand, argue that the differentiation, if there, is not directly
on a listed ground such as race or
gender. Central to this issue, as
I pointed out, is
that
the rules do not cater for the recalculation when one of the spouses
subsequently passes on and, according to Ms Seloana, she
is
indirectly discriminated against on the basis of gender and marital
status. She contends that the refusal to recalculate the
benefit puts
her in a less favourable position than those persons who are married
in non polygamous marriages.
[35]
The
benefits that are payable to a surviving spouse who was married to a
deceased pensioner in which polygamy is not involved do
not devolve
at the death of that surviving spouse. Such benefits cease when the
spouse dies. This was raised by the respondents
and not disputed by
Ms Seloane. To that extent, there is no differentiation between
parties marries in polygamous marriages as
opposed to those who are
not in such union.
[36]
The
differentiation,
on
the
version
of
Ms
Seloana,
arises
at
the
point
of
death
of
one
of the surviving spouses. That means, as I can see it, the
recalculation is not based on the death of the pensioner but on the
death of one of the surviving spouses. Our constitutional
jurisprudence accepts that there will be differentiation between
categories
of persons,
but
that the differentiation, where it
occurs,
must not be unfair. Mere differentiation is not sufficient to lead to
a ruling that conduct or law is invalid. It is when
the
differentiation lacks a legitimate purpose and where there is no
rational connection between the
differentiation
and
the
purpose.
[15]
[37]
In
Jooste
v Score Supermarkets Trading (Pty) Ltd
[16]
the
court dealt with the differentiation of employees who were injured in
the course of their employment and other common law personal
injury
claimants and found that the differentiation did not offend section
9(1) right and
it
held
inter
alia
that:
"It
is clear that the only purpose of rationality review is an enquiry
into whether the differentiation is arbitrary or irrational,
or
manifests naked preference and it is irrelevant to this enquiry
whether the scheme chosen by the legislature could be
improved in one
respect or another. Whether an employee ought to have retained the
common law right to claim damages, either over
and above or as an
alternative to the advantages conferred by the Compensation Act,
represents a highly debatable, controversial
and complex matter of
policy. It involves a policy choice which the legislature and not the
court must make. The contention [of
the applicant] represents an
invitation to this court to make a policy choice under the guise of
an review; and invitation which
is family declined
"
[38]
The
question that comes to mind is whether the court can direct the
Executive or Parliament
to
introduce
new
law
or
policy
and require
them to
include a
provision
for the
recalculation
of
pension
benefits
upon the
death of
one
of
the
surviving
spouses. I don't
think so, lest it be understood that the Court may introduce a
policy. That would be offensive to our constitutional
order.
[39]
In
Harksen
[17]
the
court held that where the discriminating law or action is designed to
achieve a worthy and important societal goal it renders
fair what
would otherwise have been unfair discrimination. No doubt, the Court
understood in making this determination that it
was not always going
to be possible to cater for all categories of people in exactly the
same way. There are always going to be
some areas where people or
categories of people will experience different treatments out of the
same law or policy, but which may
not equal unfair discrimination.
[40]
My
understanding
of
the rule is that it seeks to provide for an equal share of benefits
upon the eventuality of death of a pensioner who is married
to more
than one person. It actually goes further to cater for orphaned
children by enlarging the definition of spouse. The impugned
rule
makes it clear that all the people who are married to a pensioner in
terms of the practice of polygamy be catered for when
that pensioner
dies. It requires equal distribution of the payable benefit to the
surviving spouse. The purpose
of
the
rule,
to
that
extent,
is
congruent
with
that
of
the
Recognition
of
Customary
Marriages
Act,
[18]
about
which Moseneke DCJ said in
Gumede
[19]
that:
"Without
a doubt,
the
chief
purpose
of
the
[Recognition
Act]
is
to
reform
customary law in
several important ways. The facial extent of the reform is apparent
from the extended title of the Recognition
Act. The legislation makes
provision for recognition of customary marriages.
Most importantly. it
seeks to jettison gendered inequality
within marriage and
the marital power of the husband by providing for the equal status
and capacity of spouses."
[41]
Similar
sentiments were voiced in
Ramuhovhi
[20]
in
which the court held in relation to section 7(1) of the Recognition
of Customary Marriages Act that:
"This
perpetuation of inequality is analogous to that which section 7(1),
read with section 7(2), perpetuated in the case of
pre-Act monogamous
customary marriages. In respect of pre-Act monogamous customary
marriages,
Gumede
held this
to be "self-evidently discriminatory on at least one listed
ground: gender". This and the Court's reasoning
apply equally to
the continued disparate treatment of pre Act polygamous customary
marriages. The Court reasoned that "[o]nly
women in a customary
marriage are subject to these unequal proprietary consequences. This
discrimination is on a listed ground
and is therefore unfair unless
it is established that it is fair." It is section 9(5) of the
Constitution that decrees that
discrimination on any of the grounds
listed in section 9(3) is unfair unless shown to be fair. In the
instant matter, the government
respondents did not enter the fray and
thus made no attempt
to
prove fairness. Likewise, the
third and fourth
respondents' resistance to the application before the High Court and
of the confirmation
proceedings
before
us
does not relate to the question offairness."
[42]
The
respondents contended that there is nothing about the impugned rules
that constitutes discrimination as nothing in them is directed
at
women but at persons married in terms of customary
law.
That, to them, includes men, which accords with the definition of
spouse in terms of legislation. They further argued that
the rules
cannot be discriminatory because they do not mention race. I accept,
as the court .did in
Ramuhovhi,
[21]
that
this rule affects overwhelmingly women who are in polygamist
marriages. I have indicated the rule achieves a legitimate purpose
by
protecting the interest of both or all of the
women
in such marriage.
Analysis
[43]
Marital
regime or status is a factor in this case. I take it further to say
that it cannot be denied that in the context of our
country
polygamous marriages are invariably between a single man and a number
of women. I do not, as a result, accept the contestation
mounted by
the respondents on this point. I find that even though the rules do
not mention gender, that the provisions of the impugned
rule 14.6.2
affects women and not men in the circumstances of polygamous
marriages. It is different
where
polygamy is not
involved.
[44]
As I see it, the
categories to be spoken about, and which are treated differently are
women in polygamous marriages and those who
are not. I am prepared to
accept that to the extent that the impugned
rule treats women in
these categories differently that amounts to differentiation as
envisaged in the Equality Act and section 9
of the Constitution.
The first stage of
the test
set
out
in
Harksen
has in
my
view
been satisfied.
[45]
What remains is the
question whether the differentiation constitutes unfair
discrimination - what makes the differentiation unfair?
The
respondents contend that nothing has been explained on why the
differentiation is unfair. Ms Seloane's argument, as I understood
it,
is that it is unfair that she is treated less favourably as compared
to women who are not in polygamous unions in that she
is receiving a
lesser
benefit
than
those
other
women
in
monogamous
relationships
from
the pension fund.
Marital status therefore informs my further understanding of the
issues in this case. The question, then, is whether
the rule serves a
legitimate purpose.
[46]
I have earlier
foreshadowed that the rules attempt to strike a balance between women
in polygamous marriages and those in monogamous
marriages to ensure
that they derive equal benefit in terms of the Pension Funds Act and
the rules. This, in my view, is a legitimate
purpose that the rules
serve and which avoids a situation where one or more of the persons
who are involved in polygamy
to
the same person are treated differently on the occasion of death.
[47]
There is yet another consideration here, and that is that the less
favourable conditions preceded the death of the pensioner.
During his
lifetime the deceased would have been responsible for looking after
both Ms Seloane and Johanna. That is in the nature
of the union under
polygamy. The rules attempt to extend such care by ensuring an equal
division of the pension benefits to the
surviving spouses. I do not
see this to be creating an unfair discrimination which is repugnant
under the present constitutional
dispensation.
[48]
At
the risk of repetition, both Ms Seloane and Johanna received equal
benefits upon the death of the deceased which accrued consequent
to
Malisela's death. Ms Seloane's issue is that there must be a fresh
calculation of the pension benefits now that Johanna has
passed on.
Ms Seloane is not a dependent of Johanna. The recalculation that she
propagates for is dependent on a. new and separate
occurrence, being
the death of Johanna as one of the surviving spouses. It is the
subsequent death of the surviving spouse that
becomes the trigger for
the recalculation
of
pension benefits that she is calling for. I find this difficult to
accept. This is because the benefits accrued,
fully, when their
husband pensioner died.
[49]
It should also be
noted that Johanna died some 14 years after the death of the
deceased. During the entire period of her life post
the death of the
deceased both
she
and Ms Seloane, as surviving spouses, received their share of the
pension and there was no question of
unfair
discrimination. They both understood it
to be inherent in the
nature of their marriage to the deceased and that they were each
entitled to receive equal portions of what
was left of the pension
benefits.
[50]
The
situation in this case differs from
Mahlangu
[22]
in
which the Court found that the limitation served
no
government
purpose, stating inter alia that:
"[118]
On the other hand, the limitation serves no governmental purpose
whatsoever. That much has been conceded by the state.
All the state
has said is that the continued exclusion of domestic workers from the
enjoyment of benefits under COIDA was simply
a matter of timing. It
explained that it needed to prepare itself for handling the increased
numbers of beneficiaries that would
result from an extension of the
benefits.
Without
suggesting that this was an acceptable reason, the state contends
that it is now prepared to handle the numbers."
[51]
The
governmental
purpose
in this case, as I
see it, is the protection
of
the interests of
women in polygamous marriages. It is common cause that the rules do
not cater for recalculation of pension benefits
upon the subsequent
death of one of the surviving spouses in polygamous marriages. The
payment of lesser benefit starts at the
death of a pensioner and
continues until the surviving spouse(s) also pass on. I am not
satisfied that the rules discriminate unfairly
against women in
polygamous marriages and that they ought to be declared invalid. The
result is that the application should fail.
Consideration
of costs
[52]
The
application is in the nature of bringing to the fore a constitutional
attack to the existing rules of the government pension
scheme. The
attack was neither frivolous nor was it an abuse of the court's
processes. It is so that she is presently receiving
the benefit
equivalent to 25% of the annuity that her husband used to receive in
his lifetime and, but for the nature of the marriage,
she would have
been receiving the entire 50%. This is different to what other
persons who are married in non polygamous marriages
are
receiving at the death of the pensioned spouses. I find that this was
a genuine attempt by Ms Seloane to challenge and to correct
the
pension fund rules which she found objectionable.
[53]
It
is
therefore
my
considered
view
that
the
application
was
a
genuine
attempt
to change the status
quo.
Although
it
has
not succeeded,
I
do not find it just
to
impose
a
cost order against Ms Seloane. It is my view that the application
falls within the
scope
of
the
principles set out in
Biowatch
[23]
and,
as a result. I decline to order Ms Seloane to pay the costs of this
application.
Order
[54]
I
make the following order:
[a]
The
application is dismissed
with
no order as to costs.
MOKGERWA
MAKOTI
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
DATE
OF HEARING: 31 JULY2023
DATE
OF JUDGMENT: 06
MARCH
2024
COUNSEL
FOR APPLICANT:
S
DLAMINI
SELOANE
VINCENT ATTORNEYS
c/o
RAPHESU JL ATTORNEYS
POLOKWANE
COUNSEL
FOR RESPONDENT:
S
KHUMALO SC
MTHULARE
NORTON
ROSE
FULBRIGHT
SA INC
c/o
NILAND AND PRETORIUS INC
POLOKWANE
[1]
Section
1 of the Government Employees Pensions Fund Law No. 21 of 1996
(Pension Law).
[2]
Section
29 of the Pension Law.
[3]
Van
der Merwe and Rowland Erfreg 12.
[4]
S v
Sasson 2007 (3) SA 528 (CC).
[5]
Solidariteit
v Minister of Basic Education Case No. 58189/2015 High Court (Gd), 8
November 2017.
[6]
2016
(2) SA 1
(CC) paras 51 - 52.
[7]
Dean
of the Law Faculty of the University of North West and Others v
Masisi 2014 (6) SA 61 (SCA).
[8]
Manong
and Associates (Pty) Ltd v Eastern Cape Department of Roads and
Transport and others
[2009] 3 All SA 528
(SCA) at para 60.
[9]
Qwelane
v South African Human Rights Commission and Another
2021 (6) SA 579
(CC).
[10]
Act
No. 21 of 1996
[11]
Act
No. 10 of 2013.
[12]
2022
(4) SA 1 (CC).
[13]
Section
9(1) to (4) of the Constitution.
[14]
Section
9(4).
[15]
Prinsloo
v van der Linde
1997 (3) SA 1012
(CC) at para 25.
[16]
1999
(2) SA 1
CC at para 17.
[17]
Harksen
at para 52
[18]
Act
No. 120 of 1998.
[19]
Gumede
v President of the Republic of South Africa
2009 (3) SA 152
(CC)
para 23
[20]
Ramuhovhi
and Others v President of the Republic of South Africa and Others
2018 (2) SA 1
(CC) at para 36.
[21]
Ibid.
[22]
Mahlangu
and Another v Minister of Labour and Others (CCT306/19)
[2020] ZACC
24
;
2021 (1) BCLR 1
(CC);
[2021] 2 BLLR 123
(CC); (2021) 42 ILJ 269
(CC);
2021 (2) SA 54
(CC) (19 November 2020).
[23]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA 232
(CC).