The Government Employees Pension Fund and Another v Ronan Buitendag and Others

Supreme Court of Appeal -550/05 Hearing date: 05 September 2006
  Judgment date: 27 September 2006

Government Employees Pension Fund : Board has a discretion to decide which ‘dependants’ shall be paid the gratuity payable on the death of a deceased member and in what proportions; decision to award the gratuity to the husband and/or stepson of the deceased member set aside on review where board ignorant of the existence of major children of the deceased member who qualified as ‘dependants’; the obligation on an employer to provide information to the Fund defined.

Media Summary of Judgment

1. The SCA today reaffirmed the principle that where legislation has empowered a functionary to take a decision in the public interest, the decision should be made on the material facts which should have been available to the functionary concerned; otherwise the decision will be set aside on review.

2. Mrs Marie-Louise Oosthuizen was an employee of the Provincial Government of Gauteng. When she died, a gratuity became payable to her dependants. The Board of the Government Employees Pension Fund decided to award the gratuity to Mrs Oosthuizen’s second husband and her stepson. When it made the decision, the Board was unaware of the existence of Mrs Oosthuizen’s three major children from her first marriage. The three children qualified as ‘dependants’ because of the wide definition in the Government Employees Pension Law. The SCA found that the obligation to provide the information necessary for the Board to make a proper decision, lay with the Provincial Government; and because the Fund was unaware of all of the material facts, the allocation had to be set aside.

3. The SCA also pointed out that there was no express provision in the Law which gave the Board a discretion to decide which of a deceased employee’s dependants would receive a gratuity and in what proportions. The court held that such a discretion had to be implied in the Law.