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Con Court to hear argument on pensions and right to social security

- Lee-Anne Bruce

CALS is appearing before the Constitutional Court in a matter that raises important questions about the right to social security and access to courts

[UPDATE: A recording of the hearing can be found on the Constitutional Court's YouTube channel here.]

On 30 November, the Constitutional Court is set to hear an appeal which raises important questions around pension fund membership and the role of the Pension Funds Adjudicator. CALS is intervening in the matter as a friend of the court to represent the public interest and promote the right to social security and access to courts.

In December 2011, Ms Dineo Mongwaketse was appointed as a municipal official for a fixed five year term. She applied for membership of the Municipal Employees Pension Fund and contributions of almost 30% of her salary were made to the Fund monthly on her behalf by the Municipality. When she received a benefit statement in October 2014, however, it reflected only her own contributions. Upon investigating, Ms Mongwaketse was informed that she did not qualify to be a member of the Fund and would not be credited with the contributions made on her behalf.

Ms Mongwaketse was unable to resolve the problem and eventually resorted to stopping her contributions to the Fund and submitting a complaint to the Pension Funds Adjudicator. The Adjudicator upheld her complaint and ordered that her contributions be repaid in full. The Municipal Employees Pension Fund subsequently took the matter on review to the High Court on the basis that the Adjudicator did not have the jurisdiction to determine the complaint. The High Court dismissed the review application and the decision was taken on appeal to the Supreme Court of Appeal (SCA). Ms Mongwaketse was unable to appear before the SCA and a member of the Bar was appointed to act as amicus curiae to make arguments opposing the appeal. Justice Wallis dismissed the appeal. 

The matter is now being appealed to the Constitutional Court and once again Ms Mongwaketse will not be able to appear. The main questions for the Court to consider are who has standing to lay a complaint with the Pension Funds Adjudicator and whether the Adjudicator is able to consider complaints from the general public or only from pension fund members. The Centre for Applied Legal Studies (CALS) therefore sought to intervene as a friend of the court to support the SCA’s findings and promote the rights to social security in the context of pension funds.

“Pension funds are recognised as one of the pillars of the South African social security framework, and offer an opportunity for individuals to secure a dignified life without state support,” says Ariella Scher, head of the Business and Human Rights programme at CALS. 

“Having a mechanism in place to ensure pension funds are properly administered is critical to promote the right to social security, and particularly to protect the rights of vulnerable pension fund members against the powerful pension funds which administer their money. It is also important for the right of access to courts: everyone has the right to have any dispute decided in a fair public hearing before a court or another independent forum such as the Pension Funds Administrator, which serves as a further layer for the protection of pension fund members.”

CALS is represented by Sandile Khumalo SC, Kameel Magan and Luyanda Mbatha. 

The matter is set to be heard online at 10:00 on 30 November 2021 at the Constitutional Court. 

Watch live on the Constitutional Court’s YouTube Channel.

Read our written submissions in the matter here. 

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