South Africa Case Law

Fourie v Vrystaat Munisipale Pensionfond and Others (2973/2021)

Fourie v Vrystaat Munisipale Pensionfond and Others (2973/2021) [2022] ZAFSHC 98 (20 May 2022)

Court

Free State High Court, Bloemfontein

Case number

2973/2021

Judge

Daniso

The court found that the third respondent's pension interest ceased to exist as an asset for division when he exited the Fund before the divorce. Therefore, the divorce order directing the Fund to pay a portion of his pension interest to the applicant is ineffectual. The Fund was entitled to withhold the entire pension benefit under section 37D(1)(b)(ii) of the Pension Funds Act due to pending civil claims for misappropriation of funds, and this right extended mutatis mutandis to the applicant as a non-member spouse. The applicant's claim for unpaid pension benefits prescribed three years aft…

Source excerpt

• Divorce Pension Interest
• Prescription Of Debt
• Section 37d Pension Funds Act
• Enforceability Of Divorce Order
• Non Member Spouse Entitlement

Ngewu and Another v Post Office Retirement Fund and Others (CCT 117/11)

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

Court

Constitutional Court

Case number

CCT 117/11

Judges

Van der Westhuizen, Mogoeng, Moseneke, Froneman, Jafta, Mhlantla, Nkabinde, Skweyiya, Zondo

The Constitutional Court held that the Post Office Act's omission of the clean break principle violated equality rights and suspended invalidity for eight months.

• Equality Before Law
• Clean Break Principle
• Divorce Pension Interest
• Reading In Remedy
• Section 9 1 Constitution
• Equality-before-the-law

Wiese v Government Employees Pension Fund and Others (CCT 111/11)

Wiese v Government Employees Pension Fund and Others (CCT 111/11) [2012] ZACC 5; 2012 (6) BCLR 599 (CC) (30 March 2012)

Court

Constitutional Court

Case number

CCT 111/11

Judges

Nkabinde, Mogoeng, Yacoob, Cameron, Froneman, Jafta, Khampepe, Maya, Skweyiya, van der Westhuizen, Zondo

The Constitutional Court found the pension dispute moot after legislative amendment and ordered the Minister of Finance to pay the applicant’s costs.

• Equality Rights
• Clean Break Principle
• Divorce Pension Interest
• Reading In Remedy
• Constitutional Invalidity
• Costs In Constitutional Litigation

Wiese v Government Employees Pension Fund and Others (16893/09)

Wiese v Government Employees Pension Fund and Others (16893/09) [2011] ZAWCHC 110; [2011] 4 All SA 280 (WCC) (1 July 2011)

Court

Western Cape High Court, Cape Town

Case number

16893/09

Judge

Bozalek

The court found that the Government Employees Pension Law, by failing to apply the 'clean break' principle to former spouses of Fund members, results in irrational and unfair differentiation compared to the position under the Pension Funds Act for private pension funds. This differentiation violates section 9(1) of the Constitution, as it does not bear a rational connection to a legitimate government purpose and unjustifiably prejudices a class of persons. The court held that the Law is constitutionally invalid to the extent of this inconsistency. However, given ongoing legislative review and…

Source excerpt

• Equality Clause
• Clean Break Principle
• Divorce Pension Interest
• Constitutional Invalidity
• Reading In Remedy
• Social Security Rights

N.R v E.R (50730/2007)

N.R v E.R (50730/2007) [2011] ZAGPJHC 236; 2012 (2) SA 481 (GSJ); 74 SATC 193 (8 February 2011)

Court

South Gauteng High Court, Johannesburg

Case number

50730/2007

Judge

Mokgoatlheng

The court held that a divorced member spouse may recover tax paid on pension interest assigned to a former spouse when the former spouse elects early payment.

• Divorce Pension Interest
• Income Tax Liability
• Settlement Agreement Interpretation
• Recovery Of Tax From Non Member Spouse
• Divorce-pension-interest
• Pension-fund-taxation

Russow v Reid and Another ([2011] 3 All SA 106 (GSJ))

Russow v Reid and Another ([2011] 3 All SA 106 (GSJ)) [2011] ZAGPJHC 4; 50730/2007 (8 February 2011)

Court

South Gauteng High Court, Johannesburg

Case number

50730/2007

Judge

Mokgoatlheng

The court held that the applicant could recover tax paid on a pension-interest payout to his former spouse under section 2B of the Second Schedule to the Income Tax Act.

• Divorce Pension Interest
• Tax Liability On Pension
• Settlement Agreement Interpretation
• Section 2b Income Tax Act
• Section 37d Pension Funds Act
• Divorce-pension-interest

Nicolaisen v Nicolaisen (5259/2009)

Nicolaisen v Nicolaisen (5259/2009) [2009] ZAFSHC 112 (5 November 2009)

Court

Free State High Court, Bloemfontein

Case number

5259/2009

Judge

A Kruger

The court found that the amendment to section 37D of the Pension Funds Act, specifically subsection (4)(d), clearly provides for retrospective application to divorce orders granted before 13 September 2007. This legislative change overrides the previous interpretation in Kirchner v Kirchner, which denied retrospective effect. The applicants, having divorced in 2002, are now entitled to have 100% of the first applicant's pension interest in the specified Old Mutual policy allocated to the second applicant as at the date of divorce. The court granted the relief sought, ordering the pension fund…

Source excerpt

• Divorce Pension Interest
• Retrospective Application Of Statute
• Section 7 8 Divorce Act
• Section 37d Pension Funds Act