Minister of Communications v Ngewu and Others

In March 2013, the Constitutional Court declared sections 10 to 10E of the Post Office Act 44 of 1958 unconstitutional for violating section 9(1) of the Constitution, because they failed to allow former spouses of members of the Post Office Retirement Fund to receive their portion of pension interest immediately upon divorce (the 'clean break' principle). The declaration of invalidity was suspended for eight months to allow Parliament to remedy the defect, failing which a reading-in of section 24A of the Government Employees Pension Law would take effect. Parliament failed to enact corrective legislation within the suspension period. On 4 November 2013, three days before the suspension was due to expire, the Minister of Communications brought an urgent application to extend the suspension from eight to fourteen months. Ms Ngewu, a former spouse who had suffered severe financial hardship as a result of the legislative defect, opposed the application.

The application to amend the earlier order by extending the suspension of the declaration of invalidity from eight months to fourteen months was dismissed with costs. As a result, the reading-in remedy took effect.

The case reinforces the Constitutional Court’s strict approach to extensions of suspended declarations of invalidity and underscores the accountability of the Executive and Parliament to comply timeously with constitutional remedial orders. It affirms the importance of equality and dignity for former spouses in pension law and demonstrates the Court’s willingness to allow reading-in remedies to take effect where legislative delay would perpetuate hardship.