Dr Elmarie de la Rey
In a groundbreaking determination likely to be studied by Muslims going through a divorce, the Pension Funds Adjudicator has ruled a spouse in an Islamic marriage is still entitled to pension interest allocated to her in terms of a divorce order. Dr El
Tanya Yasmine Tryon complained that Nedgroup Defined Contribution Pension and Provident Funds (first respondent) had failed to pay her pension interest allocated to her in terms of a divorce order.
The complainant was the former spouse of MS Wade who was a member of the first respondent, administered by Old Mutual Life Assurance Company (SA) Ltd (second respondent).
The marriage between the complainant and the member was dissolved on 21 September 2007 in terms of tenets of the Islamic religion. The dissolution of marriage and the settlement agreement between the parties was made an order of the South Gauteng High Court in Johannesburg on 21 September 2011.
In terms of the settlement agreement, the complainant was entitled to 50% of the value of the fund, calculated from the date of inception, to 21 September 2007, being the date of the fasakh (ending of the Islamic marriage). The member was to take all reasonable steps to ensure that the complainant received payment of 50% of the value of the fund.
In the event that the fund failed to make payment to the complainant directly, the member undertook to personally make the said payment of an amount equal to 50% of the value of the fund, calculated from the date of inception, to the 21 September 2007.
The first respondent had not paid the complainant her share of pension interest according to the settlement agreement.
In response, the second respondent filed a response on behalf of itself and the first respondent in which the respondents objected to the jurisdiction of the Office of the Pension Funds Adjudicator, alleging that the complainant’s complaint was not a “complaint” as defined in the Act and that the complainant was not a “complainant” as defined in the Act.
The second respondent submitted that the divorce order presented to the first respondent did not constitute a divorce order in terms of section 7(8) (a) of the Divorce Act 70 of 1979 (“the Divorce Act”) and section 37D (1) of the Act.
Therefore, the first respondent was not permitted to effect a deduction from the member’s accumulated credit in the first respondent. Instead, the order was only personally binding between the complainant and the member.
The second respondent further submitted that the member’s accumulated credit in the first respondent was not an asset in his estate whilst he was a member of the first respondent. It only became an asset in his estate where he exited the first respondent.
Section 7 of the Divorce Act provided that a member’s pension interest would only form part of the member’s assets in the marriage if the parties were married in community of property, married with the accrual system, or married pre-1984 in terms of an ante-nuptial contract without the accrual system. The complainant and the member were not married in terms of any of these regimes, so the “pension interest” was not part of his estate assets, the respondents claimed.
“In granting the application sought by the applicant, the court did not require that the first respondent be made a respondent to the case. The court also acted beyond its powers granted to it in terms of the Divorce Act as the parties were not subject to section 7 of the Divorce Act.
“As the complainant did not obtain a divorce in terms of sections 3 and 7 of the Divorce Act, there is no ‘date of divorce’ as required in the concept of ‘pension interest’ and no value can be calculated.
“Thus, even if it is found that the order of the complainant is binding, it is submitted that the first respondent is prevented from calculating the pension interest of the member,” said the second respondent.
In her ruling, Dr De la Rey said the complainant qualified as a “complainant” because she claimed payment of pension interest from the first respondent, which it refused to pay. Therefore, she was considered a potential beneficiary of the first respondent and a person who had an interest in the resolution of the complaint.
“This tribunal has ruled in a number of determinations that claims for pension interest by non-member spouses are valid complaints in terms of the definition in section 1 of the Act.
“The interpretation of the divorce order is not so remote as to make it non-compliant with the definition of a complaint in section 1 of the Act.
“The primary complaint-issue is whether or not the first respondent’s refusal to pay pension interest to the complainant is sanctioned by the law and the rules of the first respondent.
“This is pensions business, so this tribunal has jurisdiction to adjudicate it. The preliminary points raised by the respondents cannot be sustained and are dismissed.”
Dr De la Rey challenged the second respondent’s submission that the divorce order was unenforceable against the first respondent and was, therefore, not bound by the order. As a result, the respondents refused to pay the complainant her share of pension interest as stipulated in the court order.
“In Amod v Multilateral Motor Vehicle Accidents Fund 1999 (4) SA 1319 (SCA), the Islamic marriage between the appellant and the deceased was not registered as a civil marriage in terms of the provisions of the Marriage Act of 1961.
“In this matter the court criticised the earlier approach of South African courts to the effect that Muslim widows had to fail in their claims because the relevant system of customary law in terms of which they were married permitted polygamy and that fact, it was said, made the marriage invalid.”
The court in Amod, per Mahomed CJ, found in favour of the appellant and said the following at paragraph 19:
“In my view, the correct approach is not to ask whether the customary marriage was lawful at common law or not but to enquire whether or not the deceased was under a legal duty to support the appellant during the subsistence of the marriage and, if so, whether the right of the widow was, in the circumstances, a right which deserved protection for the purposes of the dependant’s action.”
In Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) the Court, per Sachs J, held that the word “spouse” in its ordinary meaning included parties to a Muslim marriage.
“Such a reading was not linguistically strained but corresponded to the way the word was generally understood and used.
“It was far more awkward from a linguistic point of view to exclude parties to a Muslim marriage from the word ‘spouse’ than to include them.
“Such historic exclusion did not flow from the courts giving the word its ordinary meaning, but froma linguistically strained use of the word flowing from a particular cultural and racial approach.
“The interpretation owed more to prejudice than it did to the English language and both the impact and the intent of the restricted interpretation was discriminatory,” said Dr De la Rey.
Sachs J went on to conclude as follows, at paragraph 25:
“The central question is not whether the applicant was lawfully married to the deceased, but whether the protection which the Acts intended widows to enjoy should be withheld from relationships such as hers.
“Put another way, it is not whether it had been open to the applicant to solemnise her marriage under the Marriage Act, but whether, in terms of ‘common sense and justice’ and the values of our Constitution, the objectives of the Acts would best be furthered by including or excluding her from the protection provided.
“The answer, as in Amod, must be in favour of the interpretation which is consistent with the ordinary meaning of the word “spouse”, aligns itself with the spirit of the Constitution and furthers the objectives of the Acts.”
Dr De la Rey said: “It is common cause that the complainant was married to the member according to the tenets of the Islamic religion and that their marriage was dissolved according to the tenets of the religion on 21 September 2007.
“This tribunal is satisfied that the complainant should be considered as a spouse for the purposes of pension interest payable by the first respondent.
“This much was also confirmed by the High Court when it made its order regarding pension interest on 21 September 2011. The definition of spouse in section 1 of the Act also accords with this tribunal’s interpretation.”
Whether or not the settlement agreement complied with the definition of “pension interest” as contained in section 1 of the Divorce Act and section 37D(4) of the Act, Dr De la Rey said pension interest was the benefit that the member would have been entitled to had he withdrawn from the fund at the date of divorce.
“In the present matter the dissolution of the marriage took place on 21 September 2007 in terms of the Islamic religion.
“The divorce was made an order of court on 21 September 2011, presumably because of the respondents’ prior refusal to pay the complainant pension interest. Paragraph 5 of the settlement agreement states that the complainant is entitled to 50% of the fund value, calculated from the date of inception to 21 September 2007.
“In terms of the Islamic religion fasakh is the date of divorce. The member’s fund value on 21 September 2007 can be easily computed by the respondents. Thus, paragraph 5 of the settlement agreement is in line with the definition of “pension interest” as contained in the Divorce Act.”
The respondents were ordered to pay the complainant her share of pension interest in the first respondent in terms of section 37D(4) of the Act as provided in the settlement agreement which was made an order of court on 21 September 2011.
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