SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 110292/23
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 21/10/2025
SIGNATURE
In the matter between:
M[...], L[...] K[...] Applicant
and
NATIONAL EMPOWERMENT FUND First Respondent
PENSION FUND ADJUDICATOR Second Respondent
ALEXANDER FORBES FINANCIAL SERVICES (PTY) LTD Third Respondent
MOLA, PRECIOUS MTOMBUFUTHU Fourth Respondent
NTSHANGASE, BONGI Fifth Respondent
MAUKA, SMANGELE Sixth Respondent
KHOZA, AYANDA Seventh Respondent
JUDGMENT
LABUSCHAGNE J
[1] The applicant is the former wife and sole nominee in respect of death
benefits in the pension of the deceased, M[...] M[...] E[...] (the “deceased”).
They were married on 06 October 2006 out of community of property with
the accrual system and one minor child, M[...], M[...] D[...] M[...] was born on
28 January 2005.
[2] The applicant is also the sole beneficiary under the Will of the deceased.
[3] During his lifetime the deceased was employed by the National
Empowerment Fund, and he was a member of the pension fund
administered by the third respondent.
[4] The parties were divorced on 11 May 2012. The d ecree of divorce was
intended to be an annexure to the founding affidavit but does not appear in
the papers before court.
[5] After the death of the deceased in 2021, the Pension Fund Adjudicator made
a determination dated 11 August 2023 in terms of section 37C of the
Pension Funds Act , excluding the applicant from receiving death benefits
and awarding such benefits pro rata to the biological children of the
deceased. The applicant initially sought an order directing DNA tests for all
such children , some of who who are individual respondents to these
proceedings. However, the applicant failed to join her daughter to these
proceedings, who also obtained benefits in terms of the determination of the
Pension Fund Adjudicator.
[6] The applicant brought a statutory appeal in terms of section 30P of the
Pension Funds Act, seeking the determination of the second respondent
dated 11 August 2023 to be reviewed and set aside.
[7] The applicant later had a change of heart and filed a notice of intention to
amend the relief that she sought by excluding the prayer requiring DNA tests
for all children who alleged to be the biological children of the deceased.
One of the beneficiaries in terms of the Pension Fund Adjudicator included
the brother of the deceased.
[8] The application was only opposed by the third respondent, who is one of the
beneficiaries of the determination made by the Pension Fund Adjudicator.
[9] The applicant contends that the Pension Fund Adjudicator failed to conduct
a proper investigation on the issue of dependency. She contends that she is
unemployed and is a dependent who was reflected as such in the certificate
of Discovery Medical Aid issued at the time of the death of the deceased.
The failure to conduct a proper investigation into dependency would render
the determination assailable in terms of section 30P of the Pension Funds
Act (see Mutsila v Municipal Gratuity Fund and Others [2025] ZACC 17).
[10] The third respondent has pointed out that this application has on two
occasions been postponed to enable the applicant to join two parties to
whom the Pension Fund Adjudicator had allocated benefits in the
determination. The last of these occasions was on 11 June 2025 when the
Deputy Judge President postponed the matter to enable the joinder of two
dependants. These dependants were allocated 5% and 10% respectively
but were not joined to these proceedings despite the aforesaid
postponements.
[11] The applicant formulated an amendment citing the seventh and the eighth
respondents but did not serve that amendment on the seventh and eighth
respondents and there is no court order joining them. The third respondent
contends that the non-joinder of these beneficiaries is fatal to the application.
[12] The applicant assailed the determination of the grounds that the reasons
advanced for the determination in excluding her from benefits are irrational.
One of the reasons advanced is that the applicant and the deceased had an
antenuptial contract and for that reason she was excluded as a dependant.
This is clearly non -sensical as the antenuptial contract does not regulate
This is clearly non -sensical as the antenuptial contract does not regulate
anything other than the marital reg ime between the parties, which was
dissolved in 2012. The reflection of the applicant as a dependant on the
medical scheme of the deceased at the time of his death was seemingly
ignored by the Pension Fund Adjudicator.
[13] As this reason is clearly irrational, the applicant would have had a basis to
establish a right to review, provided all relevant parties were before court.
[14] In light thereof that the applicant failed to join two dependants, despite being
given an opportunity to do so on two occasions, has the effect that an order
setting aside the benefits accruing to beneficiaries is sought in the absence
of parties affected by that order. This is clearly not permissible in law as the
dependants have a material and substantial interest in the proceedings
before this court ( Sec 165(5) of the Constitution).
[15] The non -joinder of all dependants who obtained benefits from the
determination of the Pension Fund Adjudicator is fatal to the application.
Even if I err in this regard, the non -joinder of all essential parties is the
reason , even though the applicant might have established a basis for
review, why I decline to come to the assistance of the applicant.
[16] In the premises the application is dismissed with costs, including costs
reserved by Ledwaba AJP on 10 June 2025.
LABUSCHAGNE J
JUDGE OF THE HIGH COURT
APPEARANCES:
COUNSEL FOR APPLICANT : ADV MKIZE
ATTORNEY FOR APPLICANT : SIGAMA ATTORNEYS
COUNSEL FOR RESPONDENT : ADV TWALA
ATTORNEY FOR RESPONDENT : TWALA ATTORNEYS