Whether someone qualifies as a permanent life partner for purposes of a death benefit depends on the facts of each case, not rigid requirements such as continuous cohabitation or joint bank accounts, Pension Funds Adjudicator Lebogang Mogashoa has held.
The determination illustrates how the Adjudicator approaches challenges to trustees’ decisions to recognise permanent life partners as dependants under section 37C of the Pension Funds Act. It also reaffirms that a beneficiary nomination cannot displace trustees’ statutory duty to identify dependants and make an equitable allocation.
The Corporate Selection Umbrella Retirement Fund distributed an R8.33-million death benefit following the death of a fund member in May 2024.
Although the member had nominated his sister in 2005 to receive 100% of his approved death benefit, the trustees concluded after investigating the matter that a woman (“M”) who claimed to have been his permanent life partner qualified as a legal dependant. They ultimately allocated 45% of the benefit to the sister, 45% to M, and 5% each to the member’s niece and nephew.
The sister and her children challenged both the trustees’ classification of M as a legal dependant and the process that led to the allocation. They argued that the evidence failed to establish the mutual dependence and shared household necessary to constitute a permanent life partnership, and the trustees had not adequately explained how they had resolved conflicting evidence before reaching their decision.
M disputed those allegations, maintaining that she and the deceased had shared a committed relationship for about 25 years, alternated between their respective homes, planned to retire together, and conducted their lives in a manner consistent with a permanent life partnership.
Investigation before allocation
Liberty’s death claims administration team conducted a detailed investigation and presented its findings to the fund’s board of trustees, which was responsible for identifying the deceased’s dependants and exercising its discretion under section 37C.
The investigation gathered evidence from family members, colleagues, friends, and other witnesses, together with financial records and documentary material relating to the deceased’s support of various claimants.
The board accepted evidence that the deceased and M had been in a relationship for approximately two decades, alternated between their respective homes, and shared aspects of a common household over an extended period. It also accepted evidence that the deceased contributed towards her living expenses, paid for internet services, groceries, domestic services, pet expenses, and holidays, and provided financial support averaging about R15 000 a month. Witnesses who were not members of her family also described the relationship as one consistent with a life partnership.
The investigation also considered evidence supporting the complainants’ case, including analyses of the deceased’s bank accounts showing relatively few direct transfers to M, hospital records identifying the sister as next of kin and the claimant as a “friend”, affidavits from witnesses disputing the existence of a romantic relationship, and the fact that the deceased maintained his own residence.
The board nevertheless considered that financial support could take many forms and that neither direct bank transfers nor continuous cohabitation should be regarded as decisive.
Having considered all the evidence, the board identified M as a legal dependant and the sister as both the deceased’s sole nominee and a factual dependant. It also made nominal allocations to the niece and nephew after considering the financial assistance the deceased had provided to them and their overall circumstances.
No statutory checklist
In his determination, Mogashoa observed that although the Pension Funds Act includes a permanent life partner within the statutory definition of a spouse, it provides no definition of the expression itself.
“The legislation referred to in the definition does not expressly define a ‘permanent life partner’. Whether such a relationship exists must therefore be determined on the facts of each case. It would be inappropriate to prescribe an exhaustive list of requirements applicable in every matter,” he said.
The complainants argued that because the deceased and M maintained separate residences, they could not have been permanent life partners. Mogashoa rejected that proposition.
He said that cohabitation is not decisive. “There are many marriages, unions, and permanent life partnerships in South Africa where parties do not continuously reside together due to economic, employment, or personal circumstances. Such arrangements do not necessarily terminate or negate the existence of a permanent life partnership. It is sufficient to demonstrate that the claimant and the deceased were involved in a permanent conjugal relationship and took steps reflecting an intention to continue spending their lives together.”
Drawing on the earlier Hlathi v University of Fort Hare Retirement Fund and Others determination and the Constitutional Court’s judgment in Bwanya v Master of the High Court, Mogashoa emphasised that permanence is established by considering the totality of the evidence rather than any single characteristic of the relationship.
The Constitutional Court identified a number of indicators that may assist in assessing whether a permanent life partnership exists, including the duration of the relationship, shared living arrangements, financial support, the way the relationship is viewed by family and friends, provision made for one another in pension arrangements or wills, and whether the couple present themselves publicly as intimate partners. None of those considerations is individually decisive.
Although Bwanya arose in the context of inheritance law, the Adjudicator relied on its analysis as guidance on the factual indicators of a permanent life partnership.
Weighing competing evidence
Mogashoa noted that the board had been confronted with conflicting versions of the relationship between the deceased and the claimant.
The complainants relied on the absence of joint financial accounts, the deceased’s separate residence and statements from acquaintances disputing that the relationship was romantic. The board, however, had accepted evidence of a relationship spanning approximately 20 to 25 years, alternating between the parties’ homes, ongoing financial support, shared holidays and future planning, corroborated by affidavits from several witnesses.
Mogashoa found that the board was entitled to accept that body of evidence. He said its conclusion rested not on a single allegation but on multiple corroborating sources, including the deceased’s former attorney and colleague, a domestic worker and the deceased’s employer, none of whom was directly related to the claimant.
He also accepted that the evidence showed the couple shared aspects of a common household over an extended period and that the deceased provided ongoing financial support through payment of household, travel, pet and lifestyle expenses. Together with evidence of mutual commitment, future planning, and the length of the relationship, those facts supported the board’s conclusion that the relationship bore the characteristics of a permanent life partnership.
The Adjudicator therefore rejected the complainants’ reliance on the absence of continuous cohabitation and joint bank accounts. He held that those factors were relevant but not determinative and had to be considered as part of the totality of the evidence.
He concluded that there was “no indication that the board ignored relevant evidence”. Rather, it had “considered the conflicting accounts, evaluated the available evidence, and afforded differing weight to it”. Because the board’s conclusion was supported by the evidence before it, there was no basis for the Adjudicator to interfere with its exercise of discretion.
Nominations do not determine the outcome
The determination also reinforces an equally important principle of section 37C. Although the deceased had nominated his sister to receive his approved death benefit, the trustees were not bound by that nomination.
Relying on the Constitutional Court’s decision in Mutsila v Municipal Gratuity Fund and Others, Mogashoa reiterated that section 37C limits a member’s testamentary freedom because trustees must identify all dependants before making an equitable allocation. A nomination remains relevant, but it cannot override the statutory scheme.
In this case, the nomination form had been completed in 2005, almost two decades before the member’s death, and had not been updated before he died.
The board considered the nomination alongside the sister’s financial position, her status as sole heir to the deceased’s estate, the support she had received from the deceased, M’s financial circumstances, and the circumstances of the niece and nephew before deciding what constituted an equitable allocation.
Review, not substitution
Mogashoa also emphasised the limits of the Adjudicator’s own powers.
His role was not to determine whether he would have distributed the benefit differently, but whether the trustees had acted lawfully and rationally in exercising their discretion.
“The duty of the Adjudicator is not to decide what is the fairest or most generous distribution, but rather to determine whether the board has acted rationally and arrived at a proper and lawful decision,” he said.
He found no evidence that the trustees had exercised their discretion improperly, ignored relevant considerations or acted unreasonably.
He also rejected the complainants’ procedural challenge, finding that they had been given a meaningful opportunity to submit affidavits, financial analyses and legal argument before the board reached its final decision.
The complaint was accordingly dismissed.
The determination is significant less because it changes the law than because it demonstrates how established section 37C principles should be applied in practice. Rather than imposing a checklist for identifying permanent life partners, it reinforces the importance of a careful investigation, a balanced assessment of conflicting evidence, and a rational exercise of trustees’ discretion when allocating death benefits.
