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[2019] ZASCA 78
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Fundsatwork Umbrella Pension Fund v Guarnieri and Others (830/2018) [2019] ZASCA 78; 2019 (5) SA 68 (SCA) (31 May 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 830/2018
In
the matter between:
FUNDSATWORK
UMBRELLA PENSION
FUND APPELLANT
and
ANNA
MARIE
GUARNIERI FIRST
RESPONDENT
ALBERTO
JACOMO
GUARNIERI SECOND
RESPONDENT
MAXINE
GUARNIERI THIRD
RESPONDENT
MMI
GROUP
LTD FOURTH
RESPONDENT
STEFFANUTTI
STOCKS (PTY)
LTD FIFTH
RESPONDENT
PENSION
FUNDS
ADJUDICATOR SIXTH
RESPONDENT
Neutral
citation:
Fundsatwork Umbrella
Pension Fund v Guarnieri and Others
(830/2018)
[2019] ZASCA 78
(31 May 2019)
Coram:
Cachalia, Wallis, Mbha and Mocumie JJA and Eksteen
AJA
Heard
:
28 May 2019
Delivered
:
31 May 2019
Summary:
Distribution of pension benefit on
death of member of fund – s 37C(1)
(a)
of the Pension Funds Act 24 of 1956
(PFA) – meaning of dependant in terms of definition in s 1
of the PFA – when
such dependants are to be identified for the
purpose of making a distribution under that section – such to
be at the date
of distribution not the date of death of the member –
accordingly dependants do not include a person who died before the
distribution was made – distribution to such person contrary to
statutory scheme and not a distribution of member’s
pension
benefit – fund obliged to distribute the outstanding balance to
the member’s dependants.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Prinsloo J, sitting as court of first
instance);
The
appeal is dismissed with costs, such costs to include those
consequent upon the employment of two counsel.
JUDGMENT
Wallis
JA (Cachalia, Mbha and Mocumie JJA and Eksteen AJA concurring)
[1]
On 22 February 2014, Mr Massimiliano
Guarnieri and his girlfriend were killed in a motor vehicle accident.
At that time he was still
married in community of property to the
first respondent, Mrs Anna Marie Guarnieri (Mrs Guarnieri), although
they had been living
apart for somewhere between 18 months and two
years and she had commenced divorce proceedings against him. Mr and
Mrs Guarnieri
had two children, the second and third respondents,
respectively a son and a daughter, who were at the time of his death
24 and
21 years old respectively. Both lived with their mother. The
son was employed, earning a salary of R5 500 per month, and
claimed
to be self-supporting, while the daughter was studying.
[2]
Mr Guarnieri was also survived by his
mother Mrs Anna-Maria Guarnieri (Mrs Guarnieri Snr), who was then 71
years old and a pensioner,
resident in an old age home in
Durbanville, Western Cape and suffering from emphysema. In May 2014,
shortly after her son’s
death she moved into the frail care
section of the home where she resided. Mr Guarnieri also had a
sister, Ms Barbara Swart, who
resided in Australia.
[3]
At the time of his
death Mr Guarnieri was a member of the appellant, the Fundsatwork
Umbrella Pension Fund (the Fund). The gross
death benefit due to him
by virtue of his membership was R1 468 501.75. After the
deduction of tax the amount available
for distribution was
R1 164 657.19. On 25 July 2014 the board of the Fund
resolved in terms of s 37C(1)
(a)
the Pensions Funds Act 24 of 1956 (the PFA) to allocate 42 percent of
the death benefit to Mr Guarnieri’s mother; 37 percent
to his
widow; eight percent to his son and 13 percent to his daughter. Mrs
Guarnieri Snr had died four days before that decision
was made.
However, pursuant to a power of attorney in favour of Ms Swart and an
election form completed before her death, the amount
of the award to
her, less an advance payment on 23 May 2014 in an amount of
R75 555.25, was paid to Old Mutual on 1 August
2014
[1]
and used to purchase an annuity in her favour. The beneficiary of
that annuity after her death was her daughter Ms Swart.
[4]
Mrs Guarnieri
challenged that distribution in an attempt to secure an allocation in
favour of herself and her children of that portion
of the death
benefit awarded to her late mother-in-law. The initial distribution
was set aside by the Sixth Respondent, the Pension
Funds Adjudicator
(the Adjudicator), and referred back to the board of the Fund to take
the decision afresh in the light of the
terms of the Adjudicator’s
determination. The Board then made exactly the same decision as
previously in regard to the distribution
of the death benefit. Mrs
Guarnieri and her children challenged this by way of an application
to the Gauteng Division of the High
Court (Pretoria).
[2]
The second determination was set aside by Prinsloo J and
replaced with an order that an amount of a little over half a million
Rand, being the amount allocated to Mrs Guarnieri Snr, less an
initial payment made to her during her lifetime, be distributed
to
Mrs Guarnieri and her children in proportions to be determined by the
board. The appeal against that order is with his leave.
[5]
The issue in this
appeal arises from the fact that s 37C of the PFA removes the
allocation of pension benefits on the death
of a pension fund member
from the unfettered choice of the member, whether by will or by
nomination. It reflects a legislative
decision that funds becoming
available in that way should be available to be used for the benefit
of the deceased’s dependants
so that they are less likely to be
a drain on the State’s resources. This serves the social
purpose of providing some protection
for dependants, without entirely
overriding the wishes of a deceased who has nominated beneficiaries
or made a will.
[3]
[6]
There is no indication
that Mr Guarnieri made a will or nominated any beneficiaries.
Accordingly the decision as to the distribution
of the death benefit
vested in the board of the pension fund under s 37C(1)
(a)
of the PFA.
[4]
The relevant provision reads:
‘
(1) Notwithstanding anything
to the contrary contained in any law or in the rules of a registered
fund, any benefit (other than
a benefit payable as a pension to the
spouse or child of the member in terms of the rules of a registered
fund, which must be dealt
with in terms of such rules) payable by
such a fund upon the death of a member, shall . . . not form part of
the assets in the
estate of such a member, but shall be dealt with in
the following manner:
(a)
If the fund within twelve months of the
death of the member becomes aware of or traces a dependant or
dependants of the member,
the benefit shall be paid to such dependant
or, as may be deemed equitable by the fund, to one of such dependants
or in proportions
to some of or all such dependants.’
[7]
The distribution of
death benefits must, where there are dependants of a deceased member,
be dealt with under this section.
[5]
The term ‘dependant’ is defined in section 1 of the PFA
as follows:
‘‘
Dependant’
,
in relation to a member, means—
(a)
a person in respect of whom the member is legally
liable for maintenance;
(b)
a person in respect of whom the member is not
legally liable for maintenance, if such person—
(i) was in the opinion of the board, upon the death of
the member in fact dependent on the member for maintenance;
(ii) is the spouse of the member;
(iii) is a child of the member, including a posthumous
child . . .
(c)
a person in respect of whom the member would have
become legally liable for maintenance, had the member not died ’
.
[8]
The effect of s
37C(1)
(a)
,
as read with the definition of ‘dependant’, is to require
a fund, within a period of 12 months from the death of the
member, to
identify the dependants of the deceased who may potentially qualify
for an equitable distribution from the deceased’s
death benefit
in terms of s 37C.
[6]
Having once identified the potential class of dependants, the board
of the fund is vested with a large discretion to determine,
in the
light of its assessment of their respective needs, in what
proportions the death benefit will be distributed among the class
of
dependants.
[9]
The primary issue in this case is whether
Mrs Guarnieri Snr was a dependant for the purposes of the
distribution of her son’s
death benefit. If she was not, then
the distribution to her was contrary to the provisions of s 37C(1)
(a)
and the high court correctly set it
aside. Answering the question requires us to determine at what stage
a person must be a dependant
in order to be entitled to participate
in a distribution under the section. Is it the date of the member’s
death, or the
date upon which the decision in regard to the
distribution is made, or the date of the distribution itself? The
issue arises because,
in the ordinary course of human affairs and
given that the board of the fund has twelve months to investigate the
existence of
dependants, the situation may arise where someone who
was qualified to be recognised as a dependant at one stage ceases to
be qualified
at a later stage. The Fund’s contention was that
the determination had to be made at the date of death of the member
and
that subsequent changes in circumstances should be ignored.
[10]
The first task is to identify who is a
dependant and to ascertain whether the definition of the expression
provides any clue to
the question of when someone must be a dependant
for the purposes of a s 37C(1)
(a)
distribution. It is to the definition
of a dependant that I turn. The starting point is the reference to a
‘member’
of a fund in the preamble to the definition of a
‘dependant’ referring to a ‘
dependant
in relation to a member’. Counsel
submitted that this necessarily referred to a former member as Mr
Guarnieri had ceased to
be a member on his death. In my view that was
incorrect. The definition of ‘member’ in s 1 of the
PFA reads as
follows:
‘“
member”
,
in relation to—
(
a
)
a fund referred to in paragraph (
a
) or (
c
)
of
the definition of “pension fund organisation”, means any
member or former member of the association by which
such fund has
been established;
(
b
)
a fund referred to in paragraph (
b
) of
that definition, means a person who belongs or belonged to a class of
persons for whose benefit that fund has been established,
but does not include any person who
has received all the benefits which may be due to that person from
the fund and whose membership
has thereafter been terminated in
accordance with the rules of the fund.’
[11]
The definition provides expressly that,
depending on the type of fund, former members of funds, or people who
belonged to a class
of persons for whose benefit the fund was
established, are members until they have received all the benefits
due to them from the
fund. There seems to be no reason therefore to
read the word ‘member’ where it appears in the definition
of ‘dependant’
as referring to the member in the past
tense or as a former member. Death benefits are among the benefits to
which members of pension
funds are entitled. Until they have been
fully distributed in accordance with the fund’s rules it is
appropriate and necessary
for the fund to continue to deal with them
as a member. Their continued membership is what entitles their
representative to enforce
whatever rights they may have in relation
to the fund. Their continued membership also has implications for the
operation of the
fund and would have to be taken into account, along
with that of all other members, in an actuarial valuation of the
obligations
of the fund. In my view therefore a deceased member
remains a member for the purposes of the PFA, although they will
necessarily
have to be represented in any dealings with the fund by
their executor.
[12]
The first sub-section of the definition
provides that ‘a person in respect of whom the member
is
legally liable for maintenance’
is a dependant. Counsel submitted that this should be construed as if
it read ‘a person
in respect of whom the member
was
legally liable for maintenance
at
the time of their death
’. This
involved a considerable re-writing of the sub-section. It recast it
in the past tense and added a qualification that
does not appear from
the language. Such a substantial adjustment of the language used in
the provision could only be permissible
if it was incapable of being
given a sensible meaning without such adjustment.
[13]
In my view no such
adjustment is necessary. This part of the definition says that a
person is a dependant if there is an existing
liability for
maintenance on the part of the member. A person’s death does
not necessarily put an end to their obligation
to maintain another
person, although the obligation will necessarily have to be performed
by their estate. The Maintenance of Surviving
Spouses Act 27 of 1990
created and protects a surviving spouse’s right to maintenance.
There is a continuing obligation on
a parent’s deceased estate
to maintain a minor child who is in need of such maintenance.
[7]
It appears that paragraph
(a)
of the definition of ‘dependant’ is directed at
situations such as these.
[14]
The duty of a child to
support a parent, and other similar situations where a person is
obliged to maintain another, is extinguished
by death.
[8]
This situation is accommodated in paragraph
(b)
(i)
of the definition. That provides that a dependant is a person in
respect of whom ‘the member
is
not
legally liable
for maintenance’, but whom in the opinion of the board was in
fact ‘upon the death of the member’
dependent on them.
That language is consistent with the understanding that membership of
the fund continues after death until terminated
once all benefits due
to the member have been paid. This paragraph is also careful in its
use of tenses. It operates where the
member
is
not liable to maintain the person concerned. That refers to a current
situation. It goes on to say that the member ‘
was’
so liable ‘upon
the death of the member’. That refers to a past situation. The
choice of language is consistent with
an appreciation that for some
purposes it is necessary to look to the current position and at
others to the position at the time
of the member’s death. The
fact that no similar qualification appears in the other portions of
the definition weighs against
the contention that dependants are to
be identified as those persons fitting the definition at the time of
the member’s death
and that such persons thereafter remain as
dependants irrespective of subsequent events.
[15]
Once again counsel submitted that the
language of this provision needed adjustment, albeit to a lesser
extent. Consistent with the
approach that the member ceased to be a
member he sought to recast the opening portion in the past tense.
That was unnecessary
for the same reasons as applied in relation to
paragraph
(a)
of
the definition. The balance of the sub-section is expressed in
language that draws a careful distinction between present tense
and
past tense. Counsel did not suggest that it required adjustment, no
doubt because it was already expressed in terms that referred
back to
the position when the member died. From an interpretational
perspective the important point is that where the legislation
referred to the factual situation when the member died it said so
expressly.
[16]
Paragraphs
(b)
(ii)
and (iii) are of little assistance because they point in opposite
directions. The first identifies as a dependant someone who
is
the spouse of the member. Counsel
rightly pointed out that a person could only be the spouse of the
member up to the moment of the
latter’s death. Logically,
therefore, this could only refer to a person who
was
the spouse of the member at the time of
their death. In this way all spouses, irrespective of whether they
were being supported
at the time of the member’s death, qualify
as dependants.
[17]
On the other hand, paragraph
(b)
(iii)
points in the opposite direction by referring to someone who
is
a child of the member and reinforces
that, as encompassing all children of the member, by including a
posthumous child as a dependant.
After their parent’s death
people are still the child of the deceased parent. A posthumously
born child can only be spoken
of as a child of the parent once they
have been born, so that cannot refer back to the date of the member’s
death. Someone,
not yet born, but who is born alive after the death
of the deceased member, is included in the ranks of dependants. That
is a strong
pointer in favour of construing this provision as
speaking in the present tense to a current situation, rather than to
the situation
at a point in time in the past.
[18]
Paragraph
(c)
of the definition is also couched in
terms of futurity. It identifies as dependants persons who ‘would
have’ become
dependants – language of futurity –
‘had the member not died’ – language that points to
past events.
Again the choice of tense is careful and deliberate.
Overall the definition identifies the different categories of
dependant in
language that is careful to respect the tenses being
used. With the one exception of the use of the present tense in
relation to
spouses, there is no warrant for altering that language
and rewriting the definition in the manner submitted by counsel.
[19]
There is no justification, therefore, for
reading into the definition of ‘dependant’ the
qualification ‘at the
date of death of the member’, so
that it means persons falling within the different specified
categories as determined at
the date of the member’s death.
That contention was inconsistent with the language of the section and
its generally careful
use of tense to indicate where it was concerned
with the factual situation at a past or future time and where it was
dealing with
the present. It was also inconsistent with the purpose
for which the different categories of dependant were designed.
[20]
Turning then to
s 37C(1)
(a)
,
it provides that a fund has twelve months in which to trace
dependants. If it is satisfied that it has completed that task during
the course of the twelve months it may proceed to make the
distribution immediately, without waiting for the expiry of the
twelve
months. After that it must take a decision on how the death
benefit of the member is to be distributed. Where there is doubt
about
the identity of the dependants who are to receive a
distribution, or as to the correct distribution among those
dependants, the
board is not bound by the twelve months period, but
may delay for a time necessary to resolve the issue.
[9]
The length of the twelve month period inevitably means that, in the
course of the period of investigation, factual circumstances
may
change. A dependent child may attain their majority, graduate from
university or obtain gainful employment, all of which may
extinguish
the need for financial support from the parent. A spouse may remarry;
an inheritance may be received; there may be a
windfall gain on the
national lottery. In a less favourable direction a person may be
taken seriously ill or injured in an accident
and forced to
relinquish gainful employment. Less dramatically, but with a similar
impact, they may lose their job or be sequestrated.
And, as occurred
here, an elderly and ill relative who would otherwise have needed to
be maintained may die.
[21]
The section does not deal expressly with
how the board is to deal with vicissitudes like this. If the class of
beneficiaries is
to be determined at the date of death of the member,
then those vicissitudes would make no difference to the board’s
decision.
It would make the decision and determine the distribution
of the death benefits among dependants at the date of death,
disregarding
the changes that had occurred in the interim. The result
might be that some beneficiaries would have ceased to be dependants
at
the time of distribution, while others, who would be dependants if
considered at the time of the distribution, would be excluded.
In
effect this was the stance of the board in this case. It said that
Mrs Guarnieri Snr was a dependant when her son died and that
she
remained a dependant thereafter, notwithstanding her death.
[22]
The board added that it
had been unaware that she had died four days before it made its
original decision in July 2014 and that
it made the decision bona
fide and in ignorance of the true situation.
[10]
A half-hearted effort to lay the blame for this at the door of Mrs
Guarnieri was not pressed and was plainly unjustified. It was
not her
responsibility to keep the Fund informed of the situation with her
mother-in-law’s health. It was the Fund’s
obligation to
keep itself abreast of the situation, especially as it was well aware
that she was elderly, suffering from a life-threatening
condition and
in frail care. The possibility of her imminent death should have been
apparent. Also, the contention raised an obvious
problem. Had the
board been aware of the death of Mrs Guarnieri Snr would they still
have been entitled to award her 42 percent
of her son’s death
benefit? The question was posed by the bench but counsel gave no
answer. An answer in the negative would
reinforce the proposition
that this would be because she had ceased to be a dependant. An
affirmative answer would fly in the face
of the established purpose
of the section, namely, to provide maintenance to those who have need
of it.
[23]
The approach of the
board is not sensible. In judicial proceedings facts are preferred to
prophecies.
[11]
I can see no reason why the same principle should not apply when
boards of pension funds come to make important decisions regarding
the determination of which of a member’s dependants, as broadly
defined in the statute, should benefit from the member’s
death
benefit. The purpose of s 37C is to provide some protection for
dependants, both existing and potential. The obvious
time at which
decisions should be taken in that regard is when the determination is
made. At that stage the board should have completed
its enquiries and
be in a position to assess the relative present and future needs of
the members of the class of dependants it
has identified. Those such
as the posthumously born child, or the person who has fallen on hard
times, can then be assisted and
those whose fortunes have improved,
so that they no longer need to be maintained, can drop out of the
picture.
[24]
This does not impose
too great a practical burden on the board. It will continue to make
its determinations on the evidence to hand
when it comes to take the
decision. It imposes upon a board an obligation to check carefully
that the information it has is accurate
and to ensure that when it
makes distributions the intended beneficiaries will be the persons
who benefit from them.
[12]
As is apparent from the record in this case, the board was too
inclined to accept the correctness of one-sided information, such
as
that Mr Guarnieri had maintained his mother, without requiring proof,
for example by checking who was paying her bills at the
residential
home where she was residing. In its original submissions to the
Adjudicator it erroneously said that she lived with
her son, when he
lived in Secunda and she in Durbanville. It also did not appear to
have obtained an informed assessment of Mrs
Guarnieri Snr’s
life expectancy. In circumstances where the effect of its decision
would be to deprive the member’s
wife and children of a
substantial portion of his death benefit, while favouring his mother,
whose health was poor, it should have
had regard to what would happen
to those funds if Mrs Guarnieri Snr died. Had it done so it would
have realised that, as a result
of the arrangements made shortly
before her death, the principal beneficiary of Mr Guarnieri’s
death would be Ms Swart who
was not a dependant of his.
[25]
Given all these considerations of language,
purpose and practicality, in my view, the proper construction of
s 37C(1)
(a)
is
that the time at which to determine who is a dependant for the
purpose of distributing a death benefit is when that determination
is
made, and furthermore, the person concerned must still be a
beneficiary at the time when the distribution is made. That is the
only way in which to ensure that the persons identified as dependants
are those whose interests the section seeks to protect.
[26]
When the board took its original decision
it made an allocation in favour of someone who was no longer a
dependant because she had
died. Its decision in regard to the
distribution of Mr Guarnieri’s death benefit was therefore
contrary to the provisions
of s 37C(1)
(a)
.
The Adjudicator’s decision did not go that far, but the grounds
upon which the original determination was set aside and
referred
back, namely that the board had not properly considered her medical
condition and that this resulted in overproviding
for her
maintenance, arose from similar considerations.
[27]
In its reconsideration the board paid
little heed to any of this. That is apparent from its statement of
the factors taken into
account in determining the allocation to Mrs
Guarnieri Snr. These were limited to the fact that she was the
deceased’s mother;
a statement that she was dependent on the
deceased; her limited income and the estimated costs of moving her to
a frail care facility.
The statement contained no reference to her
state of health or her likely future needs in relation to
maintenance. All this was
at a time when the board knew full well
that, as a result of her death, she had no such needs and, indeed,
had not had any needs
when it took its earlier decision. The second
determination, being the one challenged in this case, was thus also
contrary to the
provisions of s 37C(1)
(a)
of the PFA and invalid. The judge made
an order setting it aside. It is unnecessary to decide whether it
would have been preferable
for him to have made a simple declaratory
order to that effect, as the Fund did not take issue with that
portion of the order and
there was no cross-appeal.
[28]
The Fund submitted that these were properly
proceedings by way of judicial review and that the portion of the
order in which the
board of the Fund was ordered to reconsider the
distribution of the amount awarded to Mrs Guarnieri Snr and apportion
it between
Mrs Guarnieri and her two children was inappropriate. It
submitted that this was not just and equitable relief in the light of
the fact that the Fund had acted in good faith and in ignorance of
the true facts when it made its original decision to allocate
42
percent of the death benefit to Mrs Guarnieri Snr.
[29]
The submission was misconceived. The effect
of this judgment is that, in making both determinations in regard to
the distribution
of Mr Guarnieri’s death benefit, the Fund made
an allocation in favour of someone who was not a dependant at the
time and
therefore not qualified to participate in the distribution
of the death benefit. It makes no difference that in different
circumstances
that person might have been a dependant and entitled to
receive some part of the death benefit. Her position was no different
from
that which would have prevailed had she been a complete
stranger. She was not entitled to participate in the distribution and
the
decision to include her was contrary to the statutory scheme and
invalid. To the extent of the benefit awarded to her there was
no
valid distribution. The board was obliged to make a proper
distribution of that portion of the benefit among the persons who
were dependants.
[30]
That the board made a payment pursuant to
this decision did not alter the position. That payment was made
without any lawful obligation
to do so and the Fund was entitled to
invoke whichever of the
condictiones
would be applicable to recover that payment. As against the other
dependants its position was that it had made a lawful allocation
of
58 percent of the death benefit and was obliged to make a
distribution of the balance. The argument proceeded as if Mr
Guarnieri’s death benefit existed as a pot of money distinct
from the assets of the Fund, all of which had been disbursed
and none
of which remained. That was incorrect. The death benefit was not a
distinct and separate sum of money, but a claim against
the assets of
the Fund. Distributions made to lawful beneficiaries resulted in that
claim being
pro tanto
discharged
by payment to those beneficiaries. When an amount was distributed in
favour of Mrs Guarnieri Snr that did not discharge
any portion of the
claim constituted by the death benefit. The balance of the benefit
remaining after the distribution to the widow
and children remained
as a lawful claim against the Fund.
[31]
The appeal is dismissed with costs, such
costs to include the costs consequent upon the employment of two
counsel.
__________________________
M J D WALLIS
JUDGE
OF APPEAL
Appearances
For
appellant: S Khumalo
Instructed
by: Shepstone and Wylie, Cape Town
McIntyre
Van der Post, Bloemfontein
For
respondent: T P Krüger SC (with him C D’Alton)
Instructed
by: Rothmann Phahlamohlaka Attorneys Inc, Pretoria
Honey
Attorneys, Bloemfontein.
[1]
This was an advance payment
in respect of the costs of Mrs Guarnieri Snr’s accommodation
in the frail care facility into
which she was moved in May 2014, no
more than two to three months before her death. The costs of the
facility were R13 000
per month.
[2]
The applicants were not
obliged in terms of Chapter VA of the PFA first to approach the
Adjudicator with their complaint.
[3]
Mashazi v African Products
Retirement Benefit Provident Fund
2003
(1) SA 629
(W) at 632H-J. See also C Marumoagae ‘The weight
accorded to the wishes of deceased retirement fund members when
distributing
death benefits in South Africa: Do such members have
freedom of testation?’ (2018) 30
SA
Merc LJ
115 at
129-130.
[4]
Had there been a nominated
beneficiary the death benefit would have been distributed in terms
of one of ss 37C(1)
(b)
and
(bA)
.
Absent a nominated beneficiary or any dependants, the benefit would
have been paid to the estate of the member to be distributed
in
accordance with any will or on intestacy.
[5]
Kaplan and Another NO v
The Professional and Executive Retirement Fund and Others
1999 (3) SA 798
(SCA) at 803A-C.
[6]
Rosemary Hunter
et
al
,
The
Pension Funds Act: A
Commentary
(2010)
at 684.
[7]
Boezaart (ed)
Child
Law in South Africa
,
2ed (2017), para 2.7, pp 52-54.
[8]
Boezaart
ibid
para 2.18.1, p 74.
[9]
Dobie NO v National
Technikon Retirement Pension Fund
[1999]
9 BPLR 29 (PFA) at 38C-39B.
[10]
In complaints to the
Adjudicator ignorance of a relevant factor, whether justifiable or
due to a failure to conduct a proper investigation,
has never served
to sustain a distribution. See
Williams
v FFE Minerals South Africa Pension Fund and Another
[2001]
2 BPLR 1678 (PFA);
Calitz
v Central Retirement Annuity Fund and Another
[2005]
4 BPLR 302 (PFA).
[11]
Bwllfa
and Merthyr Dare Steam Collieries (1891) Ltd v Pontypridd Waterworks
Company
[1903]
AC 426
(HL) at 431 cited with approval by the Constitutional Court
in
Minister of
Health and Another v
New
Clicks South Africa (Pty) Ltd and Others
[2005]
ZACC 14
;
2006 (2) SA 311
(CC) para 19, fn 37.
[12]
In
Dobie
NO
supra, fn 12,
the Adjudicator said that:
‘
The section imposes an
onerous duty on the board of management of a fund to determine need
and to effect an equitable distribution
among the deceased’s
dependants and nominees.’