DT Mngomezulu
passed away in October 2022, leaving behind three daughters—whose legal claim
to a share of his retirement fund is undisputed.
Before
releasing the funds, the South African Local Authorities Pension Fund (SALA)
conducted an investigation, and it was discovered that deceased had been living
with Buyelwa Khethelo and they had been in a relationship since September 2020.
As a result,
SALA allocated 45% of the death benefit to Khethelo.
Unhappy with
the decision, in June 2024, Thembeka Dlamini approached the Pension Fund
Adjudicator (PFA) to overturn SALA's decision.
Dlamini
submitted numerous allegations including the fact that her father had not paid
lobola for Khethelo. She asked for a
further investigation to be conducted and for the law be accordingly applied.
In response,
SALA submitted to the PFA that it conducted its investigation and provided the
factors that were used to distribute the death benefit.
Among other
things, SALA explained that it considered the fact that the deceased and
Khethelo had been living together in the same house, they had been in a
relationship since September 2020 until his passing in October 2022; Khethelo
was financially dependent on the deceased, and all his adult daughters were not
financially dependent on the deceased.
After the
submissions, the PFA noted that in principle, a person is liable for
maintenance if they relied on the deceased for the necessities of life.
Moreover, in the case of legal dependants, it's not a must for the dependants
to receive financial support, unless the person was supported by the deceased
in some way.
The PFA held
that it was correct for SALA to identify Khethelo as a beneficiary and allocate
a portion of the death benefit to her. As a result, Dlamini's application was
dismissed.
Feeling
disenchanted, Dlamini turned to the FST and submitted that Khethelo's claim on
the death benefit is based on false documentation; her dependency on her late
father was over-exaggerated; and that there are strong contradictions made by
SALA.
The FST
recognised that Khethelo submitted an affidavit explaining that she was
financially depended on the deceased and the address where they lived.
Furthermore, she clarified that they were not married, however, she referred
herself as a fiancé and a life partner of the deceased submissions.
"There is
no evidence in the record submitted by the applicant (Dlamini) demonstrating
that the deceased and the second respondent (Khethelo) were not in a
relationship, not shared monthly household expenses and never resided in the
same house."
However, the
FST found ample evidence which proved that the deceased and Khethelo lived
together and at some point, he had plans to pay lobola for his partner.
Furthermore, it
was said the family of the deceased requested to visit the Khethelo family) in
June 2022 to commence with lobola negotiations. However, there was a delay from
the Khethelo family, and they apologised through a letter and subsequently requested
the deceased’s family to revert with a future date.
Meanwhile, the
deceased had deposited an amount into his uncle's bank account in preparation
of future lobola negotiations. Due to financial challenges, priorities changed,
and the deceased requested his uncle to return the money and the lobola talks
were to happen in some future date.
On the facts
presented, the FST concluded that Khethelo fell within the category of a
factual dependant. This conclusion is correct in law. Further, on the facts in
this record, the second respondent was a permanent life partner and therefore a
legal dependant.
"When a
discretion has been exercised reasonably, this Tribunal cannot interfere even
if it would have exercised its discretion differently.10 It is therefore
unwarranted for this tribunal to interfere with the determination of the
adjudicator. This application falls to be dismissed," said the FST.
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