A widow whose monthly pension payments were terminated by the Public Service Pension Fund (PSPF) after she was accused of remarrying has won a High Court battle, with the court ruling that the fund violated her right to be heard before stopping the payments.
In a judgment delivered by High Court Judge Mazwi Mavuso, the court ordered that Nelsiwe Witness Dlamini’s application succeeds and awarded her costs on the ordinary scale after finding that PSPF failed to comply with the audi alteram partem principle, a fundamental rule of natural justice requiring that a person be given an opportunity to be heard before a decision affecting their rights is made.
Dlamini had been receiving a monthly annuity from PSPF following the death of her husband, Hebron Ticelo Sukati, who was employed by the former Swaziland College of Technology (SCOT) and was a member of the pension fund.According to court records, Sukati died on November 27, 2006, after which Dlamini became a beneficiary of his pension contributions and received monthly payments from the fund.
The payments continued until February 2021 when PSPF terminated the annuity.The fund’s decision was based on allegations that Dlamini had entered into a subsequent marriage with Bhadala Mandla Mamba under Swazi Law and Custom, an act that would have disqualified her from receiving the benefit under Regulation 17(3) of the Public Service Pension Fund Regulations.
The regulation provides that a surviving spouse’s pension is payable until the spouse dies or remarries, whichever occurs first.PSPF further alleged that Dlamini had received pension payments amounting to E400,051.60 between April 2016 and February 2021 while allegedly not entitled to them because of the remarriage.
However, Dlamini challenged the termination of her pension and approached the High Court seeking, among other relief, reinstatement of the monthly payments, repayment of all pension benefits withheld since March 2021 and disclosure of the evidence relied upon by PSPF in reaching its decision.
A key issue before the court was whether Dlamini had in fact remarried. PSPF relied heavily on an earlier High Court matter, Civil Case No. 3/2021, in which Bhadala Mandla Mamba sought the dissolution of what he described as a Swazi customary marriage between himself and Dlamini.
In his founding affidavit filed in that matter, Mamba stated that he had married Dlamini under Swazi Law and Custom on December 19, 2014, at Ngculwini in the Manzini District. He further detailed their life together, including the establishment of a matrimonial home, his relocation to Botswana for work, marital difficulties arising during his illness and meetings between their respective families aimed at resolving the disputes.
Judge Mavuso noted that Mamba’s affidavit contained extensive details that pointed to the existence of a customary marriage. The court referred to previous legal authority establishing that allegations contained in an affidavit, if not disputed, generally constitute evidence before the court.
Despite this, the judge observed that the parties later settled the matter through a consent order endorsed by the High Court on August 3, 2021.The consent order recorded that the parties agreed there was no marriage between them and the court adopted that agreement as an order.
Judge Mavuso acknowledged that the contents of Mamba’s affidavit strongly suggested the existence of a marriage and stated that, but for the consent order, the affidavit would have constituted sufficient proof that such a marriage existed.
Nevertheless, the court held that it was bound by the consent order because a court order remains valid and enforceable until it is set aside through review, appeal or rescission proceedings.The judge stated that regardless of any apparent deficiencies in the order, the court was obliged to recognise it as legally binding.
The second and ultimately decisive issue concerned procedural fairness.Dlamini argued that PSPF terminated her pension benefits without affording her a proper hearing. She contended that the legislation did not exclude her right to be heard before such a decision was taken.The court agreed.
Judge Mavuso found that a meeting between Dlamini and a PSPF representative, during which she was handed a letter and requested to respond, did not amount to a hearing as contemplated by the audi alteram partem rule.
Quoting legal authorities, including the South African case of Administration Transvaal v Traub and Baxter’s Administrative Law, the court emphasised that where a public body makes a decision affecting an individual’s rights or property, that individual must ordinarily be given an opportunity to present their side of the story before the decision is made.
The court further noted that where the principles of natural justice are violated, the decision in question cannot stand, irrespective of whether the same outcome might eventually have been reached.As a result, Judge Mavuso ruled in Dlamini’s favour and ordered that her application succeeds.
While the court was critical of PSPF’s failure to observe procedural fairness, it awarded costs on the ordinary scale rather than the punitive scale. The judge explained that this was because the evidence contained in Mamba’s affidavit provided substantial grounds for PSPF’s belief that a customary marriage may have existed.
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