One of the biggest challenges faced by boards of retirement funds when dealing with the allocation of death benefits is disputed paternity. This challenge may occur where the deceased did not support a child whom he was legally liable to maintain, where the deceased supported a child whose paternity is in question, and where the deceased did not support a child whose paternity is in question because there is no biological relationship.
Case law can help trustees to navigate the abovementioned challenges.
Legal framework
Section 37C of the Pension Funds Act (PFA), which governs the distribution and payment of death benefits payable on the death of a member, gives boards discretionary powers to decide on an equitable allocation of the death benefit. It places a duty on the board to identify the beneficiaries of a deceased member and vests the board with the discretion to allocate the death benefit.
The dependants of a deceased may be classified as:
- Legal dependants – members of his household, including the spouse, children, a posthumous child, and an adopted child.
- Factual dependants, which section 1 of the PFA defines as persons in respect of whom the deceased was not legally liable to maintain if such a person is in the opinion of the board dependent upon the deceased.
- Future dependants – anyone in respect of whom the member would have become legally liable for maintenance had the deceased not died.
Boards often face situations where the paternity of a child of a deceased member is questioned. The board can consider a DNA test where there is genuine uncertainty regarding paternity, and the dispute cannot be resolved by applying the regular rules of evidence.
It should also be considered whether it is in the best interests of the child to undergo a DNA test (see M and Another v D and Another (A5020/2016) [2018] ZAGPJHC).
Is a DNA test necessary for factual dependants?
In the matter of Kekana v Nedcor Defined Contributions Provident Fund (2010), the Pension Funds Adjudicator held that the Act speaks of dependency, rather than a biological relationship, as a crucial factor in determining whether anyone should be allocated a death benefit.
What if there is no father-and-child relationship, and the deceased did not provide maintenance for the child?
In instances where there was no father-and-child relationship, the child is not a nominated beneficiary, and the deceased did not maintain the child, a DNA test may be necessary to establish the biological relationship (see the Adjudicator’s ruling in Patji v Metal Industries Provident Fund and Another (2020)). These circumstances mostly occur where the child is born out of wedlock and there is no father and child relationship.
What if there is factual dependency and the DNA results disprove paternity?
There may be instances where the deceased may have been maintaining the child pending results of a DNA test, which suggests that although the child is a factual dependant, the deceased did not intend to continue with the financial support if the results were negative.
In the matter of S Nkosi vs Old Mutual Superfund Provident Fund and Coca Cola Shanduka Beverages (2024), the member was the grandparent, and he passed away before the results of the paternity test became available. He financially supported his alleged grandchild, thinking he was his biological grandson. The deceased was meant to support his alleged grandson only until his son was able to prove that the alleged grandchild was not his biological child. The deceased’s son could not afford a paternity test, and he only managed to do a paternity test with the money that he received as a death benefit. The paternity test confirmed that the alleged grandchild was not his biological grandchild.
The Adjudicator ordered that the board’s decision concerning the allocation of the death benefit to the grandchild be set aside. The fund was ordered to re-investigate same in terms of section 37C of the Act and re-exercise its discretion accordingly.
Where there is a misrepresentation, and the person would not have supported the child if he had known about the DNA results, the trustees are entitled, after receiving the DNA result, to rely on the misrepresentation to question the factual dependency.
In VJS v SH (2024), Judge James Lekhuleni held at paragraphs 42 and 43:
‘‘[…] Ostensibly, the respondent hid this information from the applicant to receive maintenance from him. In my view, the respondent’s conduct appears to be a paternity fraud. Her conduct in my view, constitutes misrepresentation […] I am mindful of the centrality of the child’s best interests as enshrined in section 28(2) of the Constitution. However, the applicant has no legal duty to maintain the child. He should not be saddled with the responsibility of paying child maintenance, as the child is not his […].”
The court did not pronounce on whether the DNA test was necessary, because the test had already been conducted and the results obtained when the matter went to court. The father approached the court to terminate parental responsibility.
Although the case did not relate to section 37C, its principles underscore that where factual dependency was a result of the misrepresentation of paternity, the child may be excluded if the support was present due to the mistaken belief that there is a biological relationship.
Conclusion
When funds allocate death benefits, they must rely on proof of dependency rather than a biological relationship. Only in instances where the deceased’s paternity is questioned and there is a genuine uncertainty may the fund rely on the DNA test provided to make an equitable distribution of the death benefit.
Thamsanqa Maphasa is Assistant Adjudicator at the Office of the Pension Funds Adjudicator. This article was first published in the OPFA’s April 2025 newsletter and is republished here (with some editing) with permission.
Disclaimer: The views expressed in this article are those of the writer and are not necessarily shared by Moonstone Information Refinery or its sister companies. The information in this article is a general guide and should not be used as a substitute for professional legal advice.
