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State pension fund is unconstitutional

In one of my previous articles I wrote about how in terms of the past legislature, after divorce, the pension funds only had to pay to the ex-spouse in terms of a court order after the member of the fund died or retired. This legislature was amended so that the fund had to pay out within sixty days after the divorce was granted.

Certain government pension funds however still only paid out after death or resignation and one lady, Mrs. Wiese, challenged this from a constitutional viewpoint and judgment was recently awarded in her favour in the Cape High Court. Mathilda Wiese (45), of Malmesbury, had a divorce order entitling her to 50% of her ex-husband's pension. Her ex-husband had been a state official and the pension fund refused to pay out to her until death or resignation of her ex-husband.

Wiese had divorced her ex-husband, a policeman, in 2009. The amendment to the Pension Fund Act only applied to funds controlled by the Pension Fund Act, and did not include pension funds for state officials. She applied in court against the Minister of Finance, the Pension Funds for State Officials and her ex-husband in 2009 and in July 2011 was awarded her share of her ex-husband's pension, in the sum of R294 808.

In Wiese's court application she asked that the provisions of the Pension Fund Act be made applicable to government officials, so that she would be entitled to and be paid her money immediately. The judge in this case was Lee Bozalek. He decided that the Pension Fund Act was unconstitutional due to the fact that spouses of members of Government pension funds do not enjoy the same rights as spouses of members of other pension funds.

The government now has to change the legislature within 12 months. The order was also referred to the Constitutional Court to be ratified.

In my opinion this was the correct decision. The Act clearly discriminates unfairly between the government and other pension funds. This is unconstitutional. I see no reason why some spouses in our law had to wait to be paid out until their ex died or resigned, while others were paid out immediately.

This decision is a landmark decision. My practise has received numerous queries recently regarding the outcome of the Wiese decision. Mrs Wiese is one of many people who would have been in this unfortunate position of not being paid out immediately.

I believe in a "clean break" post-divorce. If one must wait until death or resignation before being paid out your share of your ex's pension, this certainly is not a "clean break" from your ex, and this should be encouraged. This was a correct decision by the court in the Wiese case all in all.

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