How could the pension funds adjudicator get it so wrong? A critique of Smith versus Eskom Pension and Provident Fund

Before a discussion of the significance and potential impact of Smith v Eskom Pension and Provident Fund is possible, it is essential to examine the context in which it was decided briefly. The case was preceded by a period of uncertainty in South African pension law that was the result of the varying interpretations of the Pension Funds Act by previous adjudicators. According to the interpretation of the Act by the former Adjudicator Prof John Murphy, the board of management of a pension fund (hereafter, the Board) has the discretion to accord to same-sex couples and cohabitants or life partners the same rights as are accorded to heterosexual married couples. Murphy's interpretation was motivated by the desire to prevent pension funds from discriminating on the basis of marital status in violation of Section 9 of the Constitution of the Republic of South Africa, 1996 (hereafter Constitution). Moreover, his interpretation was designed to comply with the instruction in Section 39(2) of the Constitution.