Ngewu and Another v Post Office Retirement Fund and Others

Case No. Lower Court Judgments Hearing Date Judgment Date Majority Author  Vote
CCT 117/13 Direct Access 7 Nov. 2013 5 Dec. 2013  Madlanga J.  Unanimous

By Duncan Wild

On 7 March 2013, the Constitutional Court delivered judgment in Ngewu and Another v Post Office Retirement Fund and Others (our summary here), in which sections of the Post Office Act 44 of 1958 (“the Post Office Act“) were declared unconstitutional for its failure to incorporate the “clean break” principle. The “clean break” principle means that a divorced spouse can make a “clean break” by claiming their share of the former spouse’s pension interest at the time of the divorce.

The government was given eight months to amend the section, failing which the Constitutional Court provided a draft provision in an annexure to its judgment to be read into the Post Office Act as section 10F that provides for the “clean break” principle.

The Minister of Communications brought an urgent application on 4 November 2013 for an extension of the period for the legislature to amend the Post Office Act. The Minister says that the previous Minister (Ms Dina Pule) failed to table a statutory amendment before Cabinet, and the new Minister needs six more months to conclude the parliamentary process to have the Post Office Act amended.

Ms Ngewu (the original applicant) opposes this application on the basis that the delay has not been adequately explained and that a further delay would cause prejudice, whereas if the Constitutional Court’s order takes effect there will be no harm.

The Constitutional Court dismissed the application for an extension with costs on 6 November 2013, this means the Post Office Act will now be read in accordance with the order of the Court made on 7 March 2013, and will incorporate the clean break mechanism.

In an unanimous judgment authored by Madlanga J the Constitutional Court found that the Minister had not adequately explained the reason for the delay in bringing the application only three days before the period expired, or delay in finalising the amendments. In addition, the Court found that the State would suffer no real prejudice if the reading in took effect. In addition, the previous Minister had agreed to the reading in order, and so was well aware of possibility of the reading in taking effect.

Download the judgment here.

 

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