The applicant, Ms Mathilda Louisa Wiese, was married in community of property to Mr Cornelius Johannes Marx, a member of the Government Employees Pension Fund (GEPF). Their marriage was dissolved by a decree of divorce in 2008, which incorporated a settlement agreement awarding Ms Wiese 25% of Mr Marx’s pension interest in the GEPF. Unlike pension funds governed by the Pension Funds Act (PFA), the Government Employees Pension Law (GEPL) did not allow a non-member spouse to realise a pension interest immediately on divorce, but only upon the occurrence of a future ‘exit event’ such as retirement. As a result, Ms Wiese could not access her awarded share and suffered financial hardship. She challenged the constitutionality of the GEPL in the Western Cape High Court, arguing that it unfairly discriminated against former spouses of GEPF members compared to former spouses of members of PFA-governed funds. The High Court declared the GEPL inconsistent with section 9(1) of the Constitution and suspended the declaration to allow Parliament to remedy the defect. While confirmation proceedings and an appeal on the remedy were pending before the Constitutional Court, Parliament enacted the Government Employees Pension Law Amendment Act 19 of 2011, introducing a ‘clean-break’ principle similar to that in the PFA.
The Constitutional Court did not confirm the declaration of invalidity on the merits due to mootness arising from the enactment of the Government Employees Pension Law Amendment Act. The substantive constitutional issues were rendered academic, with only costs issues remaining for determination.
This case is significant for highlighting and addressing systemic inequality between former spouses of members of private pension funds and those of government pension funds. It contributed to the development and extension of the ‘clean-break’ principle to government pension funds, ensuring equal protection and benefit of the law for non-member spouses upon divorce. The case also illustrates the Constitutional Court’s approach to mootness where legislative intervention remedies a constitutional defect during pending litigation.