Missing man’s wife fails in provident fund claim

A WOMAN who claimed her husband had been missing since September 2020 failed in her attempt to get his provident fund to pay out the benefit. This means her spouse’s affairs will continue to be in “legal limbo”.

The Mondi Mpact Group Fund Provident Section (fund) refused to pay the member’s fund credit to his wife, the complainant N Krishna, because there was no confirmation whether he was dead or alive.

The fund credit was just over R251 000 as at January 31, 2021.

N Krishna then sought relief from the Office of the pension funds adjudicator.

The adjudicator’s office is a statutory body established to resolve disputes in a procedurally fair, economical and expeditious manner. It investigates and determines complaints of abuse of power, maladministration, disputes of fact or law, and employer dereliction of duty in respect of pension funds.

Mr N Krishna was a member of the fund by virtue of his employment with Mondi Limited until his benefit was “made paid up” with effect from February 1, 2021. His fund credit was R251 006.93.

His wife submitted that her husband went missing in September 2020. She requested the fund to release his benefit.

She said a death certificate had not been issued and that she could only apply for a “presumption of death” after a period of seven years.

The wife said she needed money “to make a living”.

In response, the fund submitted that the act prohibited the payment of a benefit to a third party – unless provided under section 37D of the act.

It said the wife’s request did not meet the provisions for a deduction as envisaged in section 37D of the act.

“In the event of the death of a member, the board of management of the fund (the board) may allocate the death benefit in accordance with section 37C of the act. However, the death is to be confirmed by a supporting death certificate issued by the Department of Home Affairs,” the fund had submitted.

According to the fund’s response, there was no confirmation whether the husband was dead or alive.

“The complainant should pursue the matter with the South African Police Service. The fund cannot make payment without an enforceable instruction by the member,” submitted the fund.

The complaint was presided over by Muvhango Lukhaimane, the pension funds adjudicator.

The complaint was received by the adjudicator on June 14 last year. Two days later, the wife was requested to submit further particulars.

On July 7 last year, a letter was sent to her, notifying her that her complaint would be forwarded to the fund for possible resolution. On the same date, a letter of notification was sent to the fund – affording it until August 7 last year, to resolve the complaint.

A letter acknowledging receipt of the complaint was sent to her on August 7 last year, following the lapse of the period afforded to the fund to resolve the complaint.

On the same date, the fund was requested to submit its response by August 28 last year. A response was received from the fund three days earlier.

The response was then forwarded to the wife, requesting she reply by September 11 last year. She made further submissions on September 15. She said her husband had been missing since 2020 and she needed “money to pay her monthly expenses”.

No further submissions were received from the parties.

Having considered the written submissions before the adjudicator, it was considered unnecessary to hold a hearing in the matter.

Lukhaimane had to determine whether the fund’s refusal to pay the wife a portion of her husband’s benefit was justifiable in terms of its rules and the act.

In her determination,

Lukhaimane said: “As a general principle of law, pension benefits are not reducible, transferable or executable save for certain exceptions as outlined in sections 37A and 37D of the act.

“The complainant stated that the member went missing in September 2020. In South Africa, when a person goes missing and there is no indication that he or she died from unnatural causes, there is only one possible remedy for the next-of-kin of the absentee, and that is to apply to the High Court for a ‘presumption of death declaration’.

“The granting or not of an application for an order of presumption of death of a missing person depends on the facts of the case.

“Until a death certificate is issued, or a specific other order is granted, a missing person’s affairs are in legal limbo and dependants may have no access to funds, and debts will be unpaid.

“In this instance, a presumption of death order has not been issued by the high court nor a death certificate. Therefore, the complainant is not entitled to a benefit from the fund in terms of its rules or the act.

“The complainant failed to establish before the adjudicator that she is entitled to the relief that she seeks.

“Therefore, the complaint should be dismissed.”