Ngewu and Another v Post Office Retirement Fund and Others (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013)

Ngewu and Another v Post Office Retirement Fund and Others (CCT 117/11) [2013] ZACC 4; 2013 (4) BCLR 421 (CC) (7 March 2013)

The Court found that the omission of the 'clean break' principle from sections 10 to 10E of the Post Office Act results in irrational differentiation between divorcees of members of the Post Office Retirement Fund and those of other pension funds, violating section 9(1) of the Constitution. The respondents did not advance any reasonable or justifiable limitation of this right. Accordingly, the relevant provisions of the Post Office Act are declared invalid to the extent of the inconsistency. The declaration of invalidity is suspended for eight months to allow Parliament to cure the defect. If Parliament fails to do so, section 24A of the Government Employees Pension Law will be read into...

Citation
[2013] ZACC 4
Parties
Applicant: Phumla Ruth Patricia Ngewu; Applicant: Women's Legal Centre Trust; Respondent: Post Office Retirement Fund; Respondent: Minister for Communications; Respondent: Minister for Finance; Respondent: Minister for Justice and Constitutional Development; Respondent: Mawethu Ngewu
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
7 March 2013
Case Number
CCT 117/11
Procedural Posture
Constitutional Application / Final Judgment After Hearing and Settlement
Outcome
Application for direct access and relief granted. Declaration of invalidity suspended for eight months. Reading-in remedy ordered if defect not cured.
Judges
Van der Westhuizen, Mogoeng, Moseneke, Froneman, Jafta, Mhlantla, Nkabinde, Skweyiya, Zondo
Legal Topics
Equality Before Law, Clean Break Principle, Divorce Pension Interest, Reading in Remedy, Section 9 1 Constitution
Constitutional Law Family and Children Equality Before Law Clean Break Principle Divorce Pension Interest Reading in Remedy Section 9 1 Constitution

Case Brief

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Parties

Phumla Ruth Patricia Ngewu

Applicant

Women's Legal Centre Trust

Applicant

Post Office Retirement Fund

Respondent

Minister for Communications

Respondent

Minister for Finance

Respondent

Minister for Justice and Constitutional Development

Respondent

Mawethu Ngewu

Respondent

Procedural Posture

Constitutional Application / Final Judgment After Hearing and Settlement

Legal Issues

  1. 1 Whether the omission of the 'clean break' principle from the Post Office Act violates section 9(1) of the Constitution.
  2. 2 Whether the differentiation between divorcees of members of the Post Office Retirement Fund and other pension funds is rational and constitutionally valid.
  3. 3 Whether a suspended declaration of invalidity and reading-in remedy is appropriate.

Ratio Decidendi

The Court found that the omission of the 'clean break' principle from sections 10 to 10E of the Post Office Act results in irrational differentiation between divorcees of members of the Post Office Retirement Fund and those of other pension funds, violating section 9(1) of the Constitution. The respondents did not advance any reasonable or justifiable limitation of this right. Accordingly, the relevant provisions of the Post Office Act are declared invalid to the extent of the inconsistency. The declaration of invalidity is suspended for eight months to allow Parliament to cure the defect. If Parliament fails to do so, section 24A of the Government Employees Pension Law will be read into...

Court Disposition

Application for direct access and relief granted. Declaration of invalidity suspended for eight months. Reading-in remedy ordered if defect not cured.

Orders

  • Condonation for the late filing of the record is granted.
  • The application for direct access is granted.