Ngewu and another v Post Office Retirement Fund and others [2013] 1 BPLR 1 (CC)

In terms of the Pension Funds Act, No 24 of 1956 and the Government Employees Pension Law Amendment Act, No 21 of 1996, the pension interest is payable at the time of divorce. This is known as the 'clean-break' principle).

Until recently, however, a payment governed by the Post Office Act is only payable upon termination of membership by the member in the fund (through death, retirement or resignation). 

In the decision of Ngewu and another v Post Office Retirement Fund and others [2013] 1 BPLR 1 (CC), the Constitutional Court had to decide when pension benefits accrue to divorced spouses where Mrs Ngewu was married to a Post Office employee who was a member of the Post Office Retirement Fund. It was common cause that Mrs Ngewu was entitled to a 50% share of her husband’s pension interest. However, under the rules of the Fund, her share would not accrue upon divorce but only when Mr Ngewu terminated his membership in the Fund. 

All parties agreed that the Post Office Act, No 44 of 1958 was unconstitutional in so far as it did not provide for the payment of the pension interest at the time of divorce. 

The Constitutional Court held that this differentiation violated the right of equality before the law and equal protection and benefit of the law. Consequently, the Constitutional Court declared s10 to 10E of the Post Office Act unconstitutional but ordered that the declaration of invalidity be suspended for eight months for the legislature to cure the defect. The defect was subsequently cured in terms of the Government Employees Pension Law Amendment Act. 

As a result of the judgments in the present case as well as the Wiese v Government Employees Pension Fund and Others (CCT 111/11) 2012 (6) BCLR 599 (CC) case, the assigned portion of the pension interest would be deemed to have accrued as is payable on the date of the divorce order.

---