Ngewu and Another v Post Office Retirement Fund and Others

Ms Phumla Ruth Patricia Ngewu married Mr Mawethu Ngewu in community of property. Mr Ngewu was employed by the South African Post Office and was a member of the Post Office Retirement Fund. Upon their divorce in July 2007, Ms Ngewu was awarded 50% of Mr Ngewu’s pension interest. Unlike members of pension funds governed by the Pension Funds Act or the Government Employees Pension Law, the rules governing the Post Office Retirement Fund did not allow a former spouse to receive payment of a pension interest at the time of divorce (the “clean break” principle). As a result, Ms Ngewu could only be paid when her former husband’s pension benefit eventually accrued. She, together with the Women’s Legal Centre Trust, challenged the constitutionality of the omission of the clean break principle from the Post Office Act and related fund rules.

The omission of the clean break principle from sections 10 to 10E of the Post Office Act 44 of 1958 was declared inconsistent with section 9(1) of the Constitution and invalid to that extent. The declaration of invalidity was suspended for eight months to allow Parliament to remedy the defect. If Parliament failed to do so by 7 November 2013, section 24A of the Government Employees Pension Law would be read into the Post Office Act as section 10F. The second respondent was ordered to pay the applicants’ costs.

This case extended constitutional equality principles to pension arrangements not previously covered by the clean break principle. It ensured that divorced spouses of members of the Post Office Retirement Fund are treated equally to those covered by other statutory pension regimes. The judgment reinforces the Constitutional Court’s role in addressing legislative omissions and confirms reading-in as an appropriate remedy where Parliament fails to act.