What Should the Board of Management of a Pension Fund Consider When Dealing with Death Claims Involving Surviving Cohabitants?

Abstract

In an article published in 2008, it was argued that the two-pronged factual dependency test for surviving cohabitants, which was formulated in 1998 and has since then been applied by the Pension Funds Adjudicator (hereafter the Adjudicator), should be welcomed because it advances the legislative intent as reflected in Section 37C read with the definition of a "dependant" in the Pension Funds Act. The inquiry under this test is, firstly, whether the parties (that is the deceased member and surviving cohabitant) lived in a relationship of mutual dependence; and secondly, whether the parties ran a shared and common household. According to the Adjudicator, the first prong of the test is qualified by the requirement that mutual dependency must involve, amongst other things, an emotional and intimate or sexual bond. In the same article, it was demonstrated that following the Constitutional Court decision in Volks v Robinson a grey area, arising from the conflicting interpretations of the factual dependency test as applied by the Adjudicator, had emerged and the article called on the then Adjudicator Mamodupi Mohlala to clarify the uncertainties created in the law by earlier conflicting interpretations of the Act. Since then, the issue of whether a cohabitant qualifies as a factual dependant was determined by the Adjudicator in Hlathi v University of Fort Hare Retirement Fund. In this case, the Adjudicator ruled that a cohabitant qualifies as a factual dependant as long as it can be established he/she and the deceased pension member were in a permanent relationship of mutual dependency or interdependency, and that they shared a common household.

Keywords: Hlathi, Mhango, death benefits, section 37C