Maditletse Jennifer Nailana v. Freddy kweletji Nailana

South Africa

03.12.2019

Civil

Right and interest in University of North Pension Fund included not only right and interest in pension fund, but also provident fund

The origin of the present dispute lies in the terms of an order of divorce granted as long ago as 6 December 2004, by the North Eastern Divorce Court, (the Divorce Court) in which the bonds of marriage between the Appellant, Mrs Maditletse Nailana and the Respondent, Mr Freddy Nailana, were dissolved. That portion of the order whose proper interpretation is placed in issue, reads as follows: ‘That the joint estate shall be divided and 50% of the Plaintiff’s right and interest in the University of the North Pension Fund, when it becomes due and payable to Plaintiff be made out to Defendant, calculated to date of this order.’

The order was granted in terms of a settlement agreement between the parties and in accordance with the provisions of Section 7(8)(a) of the Divorce Act 70 of 1979 (the Divorce Act). This section provides that the court granting a decree of divorce in respect of a member of a pension fund, may make an order that any part of the pension interest of that member which, by virtue of Section (7), is due or assigned to the other party to the divorce action, shall be paid by that fund to the other party, when any pension benefits accrue in respect of that member.

At the time the order was granted, payment of a pension interest to the non-member spouse, depended upon the rules of the particular fund. This usually occurred, when the member spouse retired, was dismissed or when some other defined ‘exit event’, arose.

No variation of the order of the divorce Court was necessary because the reference to ‘the plaintiff’s right and interest in the University of the North Pension Fund’ included not only his right and interest in the pension fund, but also the provident fund. This is because Section 7(8)(a)(i) of the Divorce Act, refers to ‘any part of the pension interest of that member’ in respect of which the court may make an order that it be paid to the non-member spouse.

It is clear that the reference to a ‘pension fund’ in the Divorce Act means a ‘pension fund organisation’ in the PFA, which in turn includes both pension and provident funds. Consequently, properly interpreted, the reference in the court order to ‘. . . 50% of the Plaintiff’s right and interest in the University of the North Pension Fund’ (now the University of Limpopo Retirement Fund), includes both the pension fund section, as well as the provident fund section, of the University of Limpopo Retirement Fund.

It is declared that, the order of the North Eastern Divorce Court issued on 6 December 2004, that 50 per cent of the Respondent’s right and interest in the University of the North Pension Fund be paid to the Appellant, includes the Respondent’s right and interest in the pension fund section, as well as the provident fund section, of the University of Limpopo Retirement Fund. The appeal succeeds with costs.

Tags : Right Interest Pension fund

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