The Women’s Legal Centre (“WLC”) applied to the Western Cape High Court and then recently to the Constitutional Court for relief that would allow a client to obtain immediate payment of her share of the pension interest benefit from her ex-husband’s pension fund. On 10 February 2012 the Constitutional Court postponed Ms Ngewus’ application for a year as this is the time period in which the Fund has agreed to amend its rules to cure the constitutional defect.

State Pension funds are not yet in line with the Constitution in that they do not allow for the “clean break” principle on divorce. The law, in line with the “clean break” principle allows spouses of members of private pension funds to access their share of the benefits on divorce. Ms Ngewu’s divorce order awarded her one half share of her spouse’s pension fund. However, the pension fund required that she wait until her ex- husband exit the fund, exacerbating her already impoverished circumstances.

The WLC argues that this is an irrational differentiation which impacts negatively on women, as they are predominantly economically disadvantaged on divorce. As a result of the different law applicable to the different Funds, the ex-spouse of a member of the Post Office Retirement Fund is in a less favourable position than she would have been if her spouse had been a member of a private pension fund under the Pension Fund Law. This violates Ms Ngewu’s right to equality in terms of our Constitution.

“The Post Office Fund is one of the two pension funds ( the other being Transnet Pension Fund) that do not apply the ‘clean break’ principle” according to Hoodah Abrahams Fayker, an attorney at the Women’s Legal Centre.

In its papers to the Constitutional Court, the Post Office Retirement Fund states that it has drafted amendments to the rules and suggested amendments to the Post Office Act of 1958 to make provision for the ‘clean break’ principle and has indicated that the amendment is to be considered in the 2012 Parliamentary Programme so that the Act can be amended accordingly.

The fact that Ms Ngewu has not been entitled to receive her share of the benefit since the divorce in 2007 has made her suffer undue hardship by not being able to use her benefit and/or enjoy any interest or growth on her portion of the pension interest. Ms Ngewu’s plight is indicative of how women are adversely affected on the dissolution of a marriage.

Very recently, in December 2011, the Government Gazette Employee Pension Fund Law was amended to incorporate the ‘clean break’ principle after the Act was declared to be unconstitutional and invalid in that it is inconsistent with the Constitution because of its differentiation from private pensions by not allowing a non-member spouse of that Fund to be paid his/her on divorce.

Contact: Hoodah Abrahams-Fayker
Tel: 021 424 5660
Cell: 072 2520333