Government Employees Pension Fund v Naidoo

The first and second respondents, Jane and Sivanaundan Naidoo, were married in community of property. Mr Naidoo resigned from his employment with the KwaZulu-Natal Provincial Administration in February 2004, causing his pension benefit in the Government Employees Pension Fund to accrue to the joint estate. Their marriage was dissolved by divorce on 7 May 2004. The divorce order, granted per incuriam, purported to award Mrs Naidoo a half share of Mr Naidoo’s ‘pension interest’ in terms of sections 7(7) and 7(8) of the Divorce Act, despite the pension benefit having already accrued. The Fund refused to comply with the divorce order, contending it was unenforceable and that section 21(1) of the Government Employees Pension Law 1996 prohibited payment to Mrs Naidoo. Mrs Naidoo obtained a rule nisi compelling payment. The court a quo made the order final against the Fund, and the Fund appealed.

The appeal was dismissed, and the order compelling the Government Employees Pension Fund to pay Mrs Naidoo her half share of the pension benefit was upheld.

The case clarifies the distinction between unaccrued pension interests governed by sections 7(7) and 7(8) of the Divorce Act and accrued pension benefits forming part of a joint estate. It confirms that statutory anti-attachment provisions in pension legislation do not prevent payment to a former spouse who is entitled to a proprietary share of an accrued pension benefit.