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The Citizen
11-08-2025
- The Citizen
Civil wife vs ‘customary wife': Widow's legal fight over late husband's R1.6m pension hits another delay
Tshifhiwa Shembry Mutsila has been embroiled in a legal battle with the Municipal Gratuity Fund for 10 years. After a decade-long legal battle, a widow will have to wait at least another three months to find out whether she is entitled to her late husband's full R1.6 million pension. Tshifhiwa Shembry Mutsila has been in and out of court since 2015, after another woman, Dipuo Masete, claimed she was also married to the deceased under customary law and financially dependent on him. Husband's death sparks battle over R1.6 million pension Mutsila married Takalani Emmanuel Mutsila in December 2003 in a civil marriage. The couple had five children. Takalani, who worked for the Ba Phalaborwa Municipality in Limpopo, died in December 2012 in a workplace accident. His dependants were entitled to R1 614 434.86 under Section 37C of the Pension Funds Act. However, Masete lodged a claim with the Municipal Gratuity Fund (MGF), saying she and her two children had been named beneficiaries in the deceased's life policy and that he made regular payments into her bank account. ALSO READ: Councils take pension billions Although Mutsila disputed the claim, the MGF board in April 2014 decided to split the death benefit -awarding Mutsila and her five children 47.5%, and Masete and her two children 52.5%. A private investigator hired by Mutsila later found that Masete was married to Malema Joseph Mphafudi under customary law and that he was the biological father of her two children. This revelation sparked a custody battle brought by Mphafudi against Masete in the Limpopo High Court. Masete did not dispute these findings. Adjudicator's ruling In May 2014, Mutsila challenged the MGF's decision with the Pension Funds Adjudicator. While the adjudicator invited both the fund and Masete to respond, the MGF requested a delay until the custody matter was finalised. The adjudicator subsequently found that the MGF had not properly identified the deceased's dependants and set aside the decision in September 2014. The fund was instructed to conduct a proper investigation and make an equitable distribution of the death benefit within three weeks of the custody case's conclusion. READ MORE: Thousands denied pensions as employers fail to pay The MGF, however, approached the Gauteng High Court in Pretoria in April 2015 to overturn the adjudicator's decision. That application was dismissed in June 2018, and its appeal was rejected in November 2021. The high court found that the fund had distributed the pension before properly identifying dependants. SCA reversal Despite the earlier losses, the MGF was granted a special appeal to the Supreme Court of Appeal (SCA). It argued that the adjudicator lacked jurisdiction and that Mutsila should have lodged her complaint directly with the fund under section 30A(1) of the Pension Funds Act before approaching the adjudicator. The MGF also contended it had not been heard before the adjudicator made a determination. In July 2023, the SCA ruled in favour of the fund, finding the adjudicator had not given it the opportunity to respond to Mutsila's complaint. The court also highlighted that Masete's factual dependency had not been challenged. ConCourt judgment Mutsila then escalated the matter to the Constitutional Court (ConCourt), where the appeal was heard in November 2024. Former MGF CEO Marthinus Jacobsohn argued before the apex court that the finding that Masete and her two children had been supported by the deceased was 'both rational and sound'. Judge Leona Theron, however, pointed out that the fund did not know about Masete's marriage to Mphafudi at the time of its decision and had failed to conduct a proper investigation within the 12-month period from the death of a member. 'The fund was not aware that he was the biological father of her children, that he was still alive, and that he could support the children financially. 'The only fact mentioned in the fund's founding affidavit filed in the high court and annexures attached thereto is that Ms Masete declared dependency on the deceased in the amount of R2 000. 'There is no evidence that the fund carried out any investigations to determine for itself or confirm this declared dependency. 'There is no allegation in the documents attached by the fund to its founding affidavit to the effect that the deceased either maintained Ms Masete's children, paid for their school fees and clothing, or provided them with shelter,' the judgment, delivered on 8 August 2025, reads. Theron also pointed out that Mutsila had not demonstrated exceptional circumstances warranting the ConCourt to replace the fund's decision with a new order. She, therefore, ruled that the case be sent back to the MGF for a new investigation as the dispute stemmed from their 'flawed decision'. 'It is important to note that the outcome of the custody proceedings between Ms Masete and Mr Mphafudi have no bearing on the order of this court,' Theron added. The ConCourt upheld Mutsila's appeal and ordered the MGF to make a fresh determination within three months of the judgment. The fund was also ordered to pay Mutsila's legal costs. NOW READ: This is what a divorce will do to your pension fund
IOL News
10-08-2025
- Business
- IOL News
Constitutional Court rules on pension fund death benefits distribution
The Constitutional Court took a closer look at who is a dependent of a pension fund when the holder of the fund dies. Image: File In a groundbreaking judgment regarding the distribution of death benefits, the Constitutional Court on Friday held that dependency must be assessed based on facts at the date of a member to a pension fund's death, not at the time distribution decisions are made. Every year, South African retirement funds distribute billions of rands upon the death of their in-service members to persons who were 'dependents' of a deceased member. These benefits are distributed in terms of section 37C of the Pension Funds Act. This application related to the equitable allocation and distribution of death benefits held within a pension fund. The Constitutional Court noted that it is particularly important in the context of South Africa's high incidence of employment precariousness and dependency on a single breadwinner. Pension fund benefits provide much-needed assistance to those left vulnerable in the event of the death of their primary supporter. In this case, Tshifhiwa Mutsila's husband died in 2012 of work-related injuries. She was left to care for herself and their five children. She filed a claim with her pension fund, the Municipal Gratuity Fund, claiming the death benefit of R1.6 million. However, she discovered there was a competing claim from another woman, Dipuo Masete, who said she was the customary wife of the deceased and that they had two children. The fund recognised both the applicant and Masete and their respective children as dependents of the deceased. The fund allocated 47.5% of the benefits to Mutsila and 52.5% to Masete and her children. A complaint was lodged with the Pension Funds Adjudicator who found that the fund had not conducted a proper investigation as required by the Act to identify the beneficiaries of the deceased and set aside its decision regarding the allocation of the death benefit. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. 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Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Next Stay Close ✕ The fund meanwhile launched an application in the high court, which found that the fund had failed to conduct a diligent investigation and dismissed the application. The fund's subsequent appeal to the full court was dismissed on similar grounds. The fund appealed that decision to the Supreme Court of Appeal, which set aside the adjudicator's decision and upheld the decision taken by the fund. It held that both the high court and the full court failed to recognise whether Masete and her two children were factually dependent on the deceased. In a unanimous judgment penned by Judge Leonora Theron, the ConCourt held that a proper investigation to determine the dependency of Masete and her children was not carried out by the fund. The extent of factual dependency is crucial when a fund makes an equitable allocation and distribution, it said. The apex court held that the date of death is to be used to determine dependency. It, however, said that this did not mean that changed circumstances cannot be taken into account when the equitable allocation is made. If, at the distribution stage, there are changed circumstances that alter the needs of the dependent, the fund may have regard to these circumstances when determining an equitable distribution. The court held that it was necessary to remit the matter to the fund and directed it to conduct its investigation afresh and to consider who the dependents of the deceased were at the time of his death. This investigation must be concluded within three months.
