Lebogang Mogashoa, Pension Funds Adjudicator

When a member of a pension fund passes away, the distribution of death benefits often becomes a deeply contested matter.

One case that came before the Pension Funds Adjudicator Lebogang Mogashoa clearly illustrates the dispute after a member of Corporate Selection Umbrella Retirement Fund died in May 2024, leaving behind a death benefit of more than R8,3 million.

What followed was a bitter contest between his sister and a woman (‘M”) described by the fund as his “life partner”. This case raises profound questions about dependency, fairness, and the evolving legal recognition of life partnerships in South African pension law.

The complainants – the deceased’s sister along with her two children who were his niece and nephew – opposed the fund’s decision to classify “M” as the deceased’s permanent life partner.

The board had allocated the R8 330 764.70 benefit as follows: 45 % to the sister; 45% to the life partner; and 5% each to the niece and nephew.

The sister and her children argued that the deceased had nominated her to receive 100% of the benefit back in 2005, and that “M” did not qualify as a permanent life partner. They claimed the trustees failed to provide full reasons, disclose evidence, or properly interrogate competing versions.

Their submissions painted “M” as a friend or colleague rather than a romantic partner. They argued:

• No shared household: The deceased maintained his own residence, and witnesses confirmed there was no cohabitation.

• No financial interdependence: No joint accounts, shared expenses, or financial support existed. Bank statements showed no financial relationship.

• No romantic commitment: The deceased never referred to “M” as a partner or spouse, and she was not included in his will or nominated as a beneficiary.

They further insisted that WhatsApp messages showed communication but not intimacy, and that “M’s” claims were unsupported by independent evidence.

The fund countered with a very different narrative. It submitted that “M” had been in a relationship with the deceased for approximately 20 years, and that they had cohabited in his Sandton home from July 2023 until his death. Before that, they alternated between her Rivonia residence and his own house.

Witnesses described them as “living together” in a romantic relationship. The deceased allegedly assumed a paternal role towards “M’s” son and provided consistent financial support averaging R15 000 per month. This included paying for groceries, domestic services, veterinary bills, Netflix subscriptions, fibre internet, and holiday travel – even covering expenses for “M’s” mother and son.

The fund emphasized that “M” was referred to as the deceased’s life partner by his employer and even by the Rabbi at his funeral.

The sister, meanwhile, was nominated in 2005 as the sole beneficiary. She was also the executrix of the deceased’s estate worth R5.8 million, and the sole heir. The fund acknowledged that the deceased supported her financially – about R12 000 per month for groceries and medication – and had paid for her children’s cars, trips, and other expenses.

However, the fund noted that the sister had benefited substantially from the estate, the sale of the family home, and risk policies. It argued that while she was a factual dependant, “M” qualified as a legal dependant under the amended definition of “spouse” in pension law, which includes permanent life partners.

The fund relied on section 37C of the Pension Funds Act, which requires trustees to distribute death benefits equitably among dependants, regardless of nominations or wills.

The complainants pressed the issue of procedural fairness. They argued that trustees failed to comply with the constitutional principle of audi alteram partem – the right to be heard. They pointed out that material relied upon (such as alleged co-ownership of property and financial support claims) was never disclosed to them. Independent evidence from neutral witnesses was sidelined, while partisan affidavits from “M’s” relatives were preferred.

The preliminary allocation gave “M” 65%, later reduced to 45%, with niece and nephew added at 5% each. This reconsideration required clear reasoning, which was absent. They accused the fund of providing post hoc justifications rather than contemporaneous reasons, undermining transparency and fairness.

“M” rejected the allegations against her. She insisted that her relationship with the deceased spanned 25 years, marked by shared living arrangements, mutual support, and retirement planning.

She claimed to have made personal sacrifices, including changing employment at his request, and emphasized that her involvement was motivated by genuine commitment rather than financial gain. She maintained that she met the criteria of a permanent life partner and would continue to assert her rights.

The Adjudicator’s task was to determine whether the trustees had complied with section 37C and whether the allocation was equitable. Key considerations were legal dependants vs factual dependants; “M” was considered a legal dependant as a permanent life partner’ the sister was a factual dependant and the sole nominee; and the niece and nephew were ad hoc dependants, receiving occasional financial support.

The Adjudicator said in his determination that the deceased’s 2005 nomination of his sister, while a relevant factor, was not binding on the fund under section 37C. Trustees must distribute benefits equitably among dependants, regardless of nominations or wills.

He said “M” received consistent financial support and shared a household with the deceased. The deceased’s sister also received support but had substantial independent assets and inheritance. The niece and nephew were supported occasionally.

The Adjudicator acknowledged the complainants’ concerns about disclosure and reasoning. However, it found that the trustees had conducted investigations, considered submissions, and exercised discretion within the law.

The Adjudicator said in his determination that the complainants contend that “M” cannot be recognised as the deceased’s permanent life partner, relying principally on the fact that the parties maintained separate residences. He said this argument is misplaced. Cohabitation, while relevant, is not decisive.

“Our law recognises that many marriages, unions, and permanent life partnerships in South Africa do not involve continuous co-residence, often due to economic, employment, or personal circumstances. Such arrangements do not, without more, negate the existence of a permanent life partnership.

“What is required is proof of a permanent conjugal relationship, coupled with steps evidencing an intention to share their lives together. Such steps may include plans to formalise the relationship through marriage or civil union,” the Adjudicator said.

The Constitutional Court’s jurisprudence, he said, identified a range of considerations relevant to determining the existence of a permanent life partnership: the duration of the relationship, whether the parties shared a common abode, the extent of shared expenses, financial support, the perception of family and friends, provision for one another in pension and related benefits, and whether the parties publicly associated as an intimate couple. Importantly, the Court did not elevate any single factor above the others but treated them as indicators to be weighed in the totality of the evidence.

The Adjudicator said the law thus rejects rigid or formalistic requirements. Continuous cohabitation is not essential, nor is the existence of joint financial accounts. Financial dependency may be established through indirect forms of support. The inquiry is fact-specific and must be resolved on the probabilities.

In the present matter, the evidence before the Board was conflicting. The complainants relied on the absence of joint financial accounts, the deceased’s maintenance of a separate residence, and statements from acquaintances denying a romantic relationship. Conversely, the Board considered evidence of a relationship spanning two decades, alternating cohabitation, affidavits from colleagues, domestic workers, and family members attesting to a romantic and committed bond, financial support in the form of household expenses and contributions to “M’s” living costs, and conduct consistent with a spousal relationship, including shared holidays and long-term planning.

Faced with these mutually destructive versions, the Board was required to assess credibility and probabilities. The Adjudicator was satisfied that the conclusion reached – that “M” qualified as a permanent life partner – was supported by multiple corroborating sources of evidence, and not by a single unsubstantiated allegation.

The Adjudicator upheld the fund’s allocation and dismissed the complaint.

ENDS