Widow takes death benefit case to ConCourt

A 10-year legal battle between a widow and a mistress over a death benefit will be heard in the Constitutional Court on Tuesday, as the widow appeals a ruling of the Supreme Court of Appeal.  

Tshifhiwa Shembry Mutsila is challenging the distribution of a death benefit by the Municipal Gratuity Fund following the death of her husband Takalani Emmanuel Mutsila in 2012.

Mutsila and her five children were the nominated beneficiaries of the death benefit.

She had submitted a claim on behalf of herself and their five children as the nominated beneficiaries. But the Municipal Gratuity Fund added another woman, Dipuo Masete, and her two children as beneficiaries based on its findings that they were Takalani's dependents. 

Masete then alleged that she was customarily married to Takalani.

“The applicant [Mutsila] objected to the inclusion of Masete and her two children as beneficiaries of the death benefit and requested the fund to give her [applicant] an amount of R300,000 in advance to enable her to settle a housing loan with Absa.”

In 2014, the legal battle started when the fund distributed the death benefit and allocated 22.5% to Mutsila and 27.5% to Masete, while the children's benefits varied between 2.5% and 14% of the total benefits depending on their ages.”

Mutsila then hired a private investigator, who revealed that Masete was in a customary marriage with another man, who was the alleged biological father of her children.

According to court papers, this investigation triggered a custody application brought by Malema Mphafudi against Masete.

Mutsila lodged a complaint with the adjudicator, which then found that the fund's decision should be set aside because it had failed to properly investigate the matter. 

The matter was set aside, and Mutsila was awarded R300,000 in advance for her housing loan.

The adjudicator's decision was also supported by the high court which had also found that the fund had neglected its duty to “accurately assess dependents leading to an improper benefit distribution”.

The fund was also unsuccessful in its appeal before the high court, which found that at the “barest minimum”, the fund should have investigated the dispute over paternity of Masete's children and the question of their factual dependency on the deceased.

However, the Supreme Court of Appeal in Bloemfontein agreed with the fund, upholding its appeal.

“The SCA have held that both the high court and the full court failed to address the key issues of whether Masete and her children were factually dependent on the deceased.

“The SCA noted the lengthy delay in the custody application and the need for finality for the beneficiaries. The SCA ruled that the fund had complied with the legislative requirements and made a correct distribution,” read the court papers.

Mutsila has now approached the apex court where she argues that the appeal court incorrectly determined that Masete and her children were her husband's dependents.

“The applicant submits that the interpretation and application of section 37C of the Pension Funds Act affects her and her children's constitutional rights. She also said the fund had failed to investigate dependency claims independently and did not consider important factors such as financial support and her children's future needs.”

But the fund has hit back, saying Mutsila's evidence does not support her claim that Makete was not a dependent.

The Constitutional Court is expected to hear if the fund did its due diligence to identify the factual dependents and if it failed to hear the other side. 

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