Appeal Court determines Unisa student entitled to father's pension benefits

© HONGQI ZHANG – 123RF.com (This photo is not of Mbali Mthembu)

The SA Local Authorities Pension Fund took the case on appeal against a decision by the Pension Funds Adjudicator, Muvhango Lukhaimane, who found that Durban resident Mbali Mthembu was entitled to benefits from her father's pension fund after she turned 18, because she was a full-time student.

The Fund said Lukhaimane's decision was wrong because Mthembu was registered at the University of South Africa (Unisa), which was a "part-time" distance learning institution.

Mthembu's father, Bheki Khanyile, who was a member of the fund as an employee of the Umdoni Municipality, died in 2002. Mthembu's mother, Simangele, received benefits from the fund for her daughter, but the money stopped in 2011 after she turned 18. According to the scheme's rules, a child can only receive benefits until the age of 23 if she is registered as a full-time student.

Mthembu enquired about the stoppage of funds and then submitted a letter from Unisa to the fund to confirm she was enrolled for a BCom degree. The fund found that the institution was for part-time study, and refused to pay benefits for 2011 and 2012.

Mthembu, who is now studying at the Nelson Mandela University of Technology, laid a complaint and the Pension Funds Adjudicator ruled in her favour, but the fund took that decision on appeal. The Fund argued that Mthembu was not a full-time student because Unisa stated on its website that all its students studied part-time.

"The pension fund rules stipulate that the benefit is only for full-time students who are precluded from supporting themselves by their studies."

The Fund said 'full-time student' referred to courses that were designed in a manner that required mandatory attendance of classes, and for the courses to be completed during a specific period.

In dismissing the appeal with costs, Judge Malcolm Wallis said the Pension Funds Adjudicator was correct in her ruling against the pension fund.

Defining 'full time' student

In her determination, Lukhaimane said, "The Paperback Oxford English Dictionary defines full time as using the whole of a person's available working time. In modern era, it is quite difficult to define a full-time student.

"A definition of a full-time student cannot be limited to a person who attends classes on a daily basis with a tertiary institution anymore. The definition is much wider than that now where technology is quite advanced and facilitates studying full-time without attending classes on a daily basis.

"Furthermore, the correspondence dated 26 August 2011 from Unisa did not state that the complainant's daughter is not a full-time student. The correspondence provides that the complainant's daughter is a registered student and she attends discussion classes to enhance her chances of passing."

She added it was clear the complainant's daughter was solely committed to her studies with Unisa. Her lifestyle and commitment could not be distinguished from students who were registered with other tertiary institutions that have regular classes where students may attend if they so wish.

She ordered that the Fund's decision to terminate the child's pension be set aside. The respondent was ordered to reinstate and pay the child's pension.

In his judgement, Wallis said Mthembu's mother had said her daughter had spent her days either studying from home, meeting fellow students at the Unisa campus for informal study groups, and attending formal tutorials and discussion classes at Unisa. Her daughter's life and her schedule revolved around her studies.

"The Fund says that this was not sufficient to make Mbali a full-time student. In its view, the stumbling block to that conclusion was that she was registered at Unisa, which is a distance learning institution. It annexed to its affidavits documents it had obtained from Unisa that disclosed, so it said, that Unisa does not have any full-time students.

"The relevance of these documents is debatable. After all, the question was not whether Unisa regarded Mbali as a full-time student, but whether she was a full-time student within the contemplation of the Fund rules. However, be that as it may, when the documents were examined more closely they did not support the Fund's argument.

"In any event it is not Unisa's view that matters, but what the rules of the Fund meant when they referred to a full-time student.

"The applicable principles of interpretation are clear and need not be restated."

Judge Wallis said the definition of 'full-time' in the Collins English Dictionary (1985) the Concise Oxford English Dictionary supported the view that Mbali was a full-time student.

He said the Fund, however, proffered its own definition, namely: "... A full-time student in terms of its rules is a student who is required by the institution to devote all or substantially all of her productive time to her studies and is thus classified by the institution as a full-time student."

Judge Wallis said this definition introduces elements to the concept of 'full-time' that are unusual. "It moves away from examining what the student does to what the institution requires of the student.

"Thus the student must be 'required' to attend classes, although counsel rightly accepted that a student would still be a full-time student if they missed all their classes and spent their time playing video games, socialising or surfing.

"In other words it is enough if the institution requires them to attend classes. They do not in fact have to do so.

"The result is that the diligent Mbali, who was working hard and attending study groups at the university, is not a full-time student, but the layabout is. That is an unattractive proposition."