Marna Gouws (Heilie Maria Gouws) v Momentum Retirement Annuity Fund and Others (FS Tribunal)
Background:
The deceased was a member of the Momentum Retirement Annuity Fund (the “Fund”), who passed away in November. In his nomination form, the deceased nominated three beneficiaries including his sister (the “Applicant”), and the Johan Gouws Family Trust (the “Trust”). The Fund exercised its discretion in terms of section 37C of the PFA and allocated the entire death benefit to the deceased’s life partner (the “Third Respondent”). The Applicant then lodged a complaint on behalf of her mother with the Pensions Fund Adjudicator (“Adjudicator”) alleging that her mother was dependent on the deceased.
Summary:
In her complaint, the Applicant alleged that her mother relied on the deceased for her household expenses, and that the Applicant and her other siblings were unable to support their mother’s monthly expenses. The Adjudicator ordered the Fund to re-exercise its discretion and reconsider its decision. The Fund reconsidered the distribution and allocated the full death benefit to the Third Respondent.
With regards to the deceased’s estate, the Third Respondent inherited a house from the deceased, but received no further inheritance from the deceased. The estate had a surplus which was payable to the Trust. The Applicant and her siblings each received monetary inheritance in their personal capacity and jointly in the name of the Trust. Additionally, the mother received the full death benefit from the Allan Gray Retirement Fund.
The Fund stated that it had considered dependency as a crucial principle in this matter. Section 37C requires that the Fund investigates and locates all possible dependants and distributes the death benefit fairly and equitably using its discretion.
The Fund considered the Third Respondents monthly living expenses and found that there would be a shortfall as the expenses that were previously covered by the deceased would have to be covered by the Third Respondent. The Fund further considered the mother’s life expectancy, which was projected to be 7 (seven) years and the Allan Gray Retirement Fund death benefit that she had received and found that the death benefit quantum exceeded the amount that she would need to adequately cover her monthly expenses for the rest of her life expectancy. Additionally, the Applicant and the deceased’s siblings would be able to assist the mother where needed as they had inherited money in their personal capacity and in the name of the Trust. The Adjudicator found that the Fund conducted a proper investigation and had exercised it discretion accordingly and dismissed the Applicant’s complaint.
The application before the Tribunal is based on the Applicant's allegation that the mother was the deceased’s dependant and thus entitled to the death benefit. The Applicant further stated that she and her siblings would not be able to financially support their mother.
The Tribunal found that in considering all relevant factors mentioned above, the Fund had exercised its duties in terms of section 37C and had correctly allocated the death benefit. The Tribunal further stated that the Adjudicator was correct in dismissing the Applicant’s complaint which was in agreement with the Fund’s allocation. The Tribunal thus dismissed the application.
Tebello Qhomane v Pension Funds Adjudicator and Others (FS Tribunal)
The deceased’s daughter (“Applicant”) brought a reconsideration application before the Tribunal for a determination made by the Adjudicator on 06 April 2023 in respect of the death benefit distribution.
Background:
The deceased was a member of the Nestle Defined Contribution Pension Fund (the “Fund”), who passed away on 20 June 2021. The deceased was survived by his wife (the “Fourth Respondent”). Once the Fund was notified of the death of the deceased, the Fund conducted its investigation in terms of section 37C of the PFA to determine how the death benefit that was payable would be distributed.
Summary:
During this process, the Fund was informed by the deceased’s sister that the deceased has another child (the “Third Respondent”), and the Fund preliminarily resolved that 70% of would be distributed to the Fourth Respondent, 15% would be distributed to the Applicant, and that 15% would be distributed to the Third Respondent. The finalisation of this distribution was subject to the Third Respondent providing evidence of dependency on the deceased.
The Third Respondent submitted an affidavit in which he stated that the deceased occasionally bought him clothing and sent him money. It must be noted that the Fund had requested that the Applicant and the Third Respondent submit themselves for DNA testing. The Third Respondent was willing but did not have the funds to do so. The Applicant on the other hand was not forthcoming.
On receipt of the affidavit and given that there was no evidence disproving the contents thereof, the Fund issued another resolution in which 60% of would be distributed to the Fourth Respondent, 35% would be distributed to the Applicant, and that 5% would be distributed to the Third Respondent.
In the complaint to the Adjudicator, the Applicant alleged that the Fund was misled, that the Third Respondent was not the deceased’s son, that the Third Respondent was not mentioned in the deceased’s will and nomination form, that the Third Respondent was unknown to the Applicant and the Fourth Respondent, and that there was insufficient evidence proving factual and legal dependency. The Adjudicator found that the Fund relied on the affidavit provided by the Third Respondent. The Applicant had not assisted the Fund to rebut the affidavit as she refused to submit herself for DNA testing. The Adjudicator further stated that the Fund had considered the relevant factors and had not abused its discretion. The Adjudicator dismissed the complaint.
The Applicant had filed an application with the Tribunal to submit further evidence which proved that the Third Respondent was not a legal dependant of the deceased. This was opposed by the Adjudicator and the Fund; however, the Tribunal permitted the submission. The Applicant submitted an affidavit which stated that the deceased was not the Third Respondent’s father and attached a photograph thereto. The Applicant further submitted the funeral programs which made no mention of the Third Respondent.
In its decision, the Tribunal stated that the death benefit did not form part of the deceased’s estate, and that section 37C of the PFA was applicable. Section 37C requires that the Fund investigates and locates all possible dependants and distributes the death benefit using its discretion and taking into account all relevant factors. The Tribunal noted the Applicant’s refusal to submit herself for DNA testing as this would have confirmed legal dependency. It further stated that the evidence submitted did not warrant a reconsideration of the Adjudicator’s determination, and that it did not prove that the Fund incorrectly exercised its discretion.
The Tribunal dismissed the application as it found that the Fund had exercised its discretion correctly given the information that had provided, and that the Adjudicator was correct in set aside the Applicant’s complaint.
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