THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 20649/2014

In the matter between:
SOUTH AFRICAN LOCAL AUTHORITIES
PENSION FUND

Appellant
and
SIMANGELE EUNICE MTHEMBU

First Respondent
LUKHAIMANE M A NO

Second Respondent

Neutral citation: South African Local Authorities Pension Fund v
Mthembu (20649/2014) 2015 ZASCA 205 (3
December 2015)
Coram:
MPATI P, SHONGWE, TSHIQI and WALLIS JJA and
BAARTMAN AJA
Heard:
12 November 2015
Delivered: 3 December 2015
Summary: Pension fund rules – full-time student – meaning of – whether
first respondent’s daughter a full-time student while studying at UNISA.

ORDER

On appeal from: KwaZulu-Natal Local Division, Durban (Ndamase A J,
sitting as court of first instance):
The appeal is dismissed with costs.

JUDGMENT

Wallis JA (Mpati P, Shongwe and Tshiqi JJA and Baartman AJA
concurring)

[1] Mbalenhle Mthembu (Mbali), is the daughter of the first
respondent Ms Simangele Mthembu and the late Bhekizitha Khanyile.
Mr Khanyile was formerly an employee of the Umdoni Municipality and
a member of the appellant, the South African Local Authorities Pension
Fund (the Fund). After his death on 3 May 1997, Ms Mthembu became
entitled to claim a child’s pension on behalf of Mbali in terms of the
provisions of rule 6.1.2 of the Fund’s rules. On 25 May 2011 the Fund
stopped paying the child’s pension for Mbali. It did so because it believed
that she was no longer a full-time student. Ms Mthembu disagreed and
lodged a complaint with the Pension Funds Adjudicator. She was
successful. The Fund challenged that decision in terms of s 30P of the

Pension Funds Act.1 It was unsuccessful in the high court but appeals
with the leave of that court.

[2] Rule 6.1.2 of the Fund’s rules provided for the payment on the
death of a member of a child’s pension ‘payable to the member’s
dependent children’.2 Rule 1.3 defined the expression ‘dependent child’
in the following terms:
‘A child … of a MEMBER provided such child is unmarried, is under the age of 18
(eighteen) years and is dependent upon the MEMBER at the time of the MEMBER’S
death and shall include a child whom the TRUSTEES consider would have been
dependent on the MEMBER had the MEMBER not died.
Where the TRUSTEES so direct, the age limit of 18 (eighteen) years may be
extended:
-
up to 23 (twenty three) years where such child is a full-time student; or
-
indefinitely where such a child is wholly dependent upon the member on
medical grounds.’

[3] Mbali was born on 3 October 1990. Under the definition of
dependent child she would therefore ordinarily have ceased to qualify for
a child’s pension when she reached the age of 18 years on 3 October
2008. However, she was still at school at the time and only finished her
schooling at the end of 2010. As a matter of fact the Fund did not
withdraw her pension on that date no doubt because it regarded her as a
full-time student. It only withdrew it on 25 March 2011. The only issue is
whether she was at that time a full-time student.

1 Pension Funds Act 24 of 1956.
2 The rules have subsequently been amended.

[4] In her final year at school Mbali applied for admission as a student
at the University of KwaZulu-Natal (UKZN) but was refused. She also
applied to the University of South Africa (UNISA) and was accepted to
register for a Bachelor of Commerce degree specialising in organisational
psychology. In 2011 and 2012 she was studying through UNISA. She
registered on the basis of attempting to complete her degree in the
conventional three year period and was undertaking as many courses as
she would have been required to undertake had she been registered at any
other university.3 We are not told how successful she was in her studies,
although it appears from her supporting affidavit that she progressed to
become a resident student at the Nelson Mandela University, Port
Elizabeth.

[5] Mbali was not employed during this time. Her mother said :
‘She 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. … [H]er life and her schedule revolved around her studies.’

[6] 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.

[7] The relevance of these documents is debatable. After all, the
question was not whether UNISA regarded Mbali as a full-time student,

3 The affidavits contained information from the University of Pretoria, the University of Stellenbosch
or the University of Johannesburg, but this is the standard period for a first degree at all South African
universities, save in specialised areas such as engineering, medicine and law.

but whether she was a full-time student within the contemplation of the
Fund rules. But, be that as it may, when the documents were examined
more closely they did not support the Fund’s argument.

[8] The first document came in response to a request by the Fund. The
question it posed was a curious one, namely:
‘Is it possible to study with Unisa part time/attend classes?’
The answer was:
‘Unisa is an open distance learning institution, you can only study part time.’
Accompanying that apparently decisive answer was a reference to a
website where further information could be obtained. And when the
website was visited it revealed a different picture. It said in regard to the
advantages of open distance learning that:
‘You can study at your own pace, full time or part time.’

[9] The Fund also relied on other responses provided by UNISA on its
website in the FAQ (frequently asked questions) section. There in
response to the question:
‘Does UNISA have part-time and full-time students?’
it received the following answer:
‘Unisa is a distance education institution. We do not have any full time students
because we do not offer any full-time classes.’

In response to another question (not the same as that mentioned in the
previous paragraph) it again replied:
‘Unisa is an open distance learning institution; you can only study part time.’

[10]  This might have seemed clear enough, but again the university
referred parties lodging enquiries through the FAQ site to a more detailed
document, and that told a different story. Under the general query:
‘What is the difference between part-time study and full-time study?’
it explained that there was confusion between the two and helpfully set
out the differences in tabular form. A part-time student was someone who
held a full-time job and was only able to study in the early morning and
evening, and over weekends. Such a student would take double the time
to complete a three-year degree or diploma.

[11] In regard to full-time study UNISA said:
If you are not employed and are able to enrol for the full study load of your
degree/diploma in order to complete it in the minimum time period, you will see
yourself as a full-time student.’
That is precisely how Mbali and her mother viewed her student life.

[12] 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.

What does the expression ‘full-time student’ mean in the context of the
rules as a whole? The Collins English Dictionary (1985) gives the
following definition for the word ‘full-time’:
‘1.For the entire time appropriate to an activity: a full-time job; a full-time student …
2.On a full-time basis: he works full-time. … Compare part-time’
The Concise Oxford English Dictionary says simply that in its adjectival
sense it means ‘occupying the whole of the time available’. The Shorter
Oxford English Dictionary says ‘occupying or using all one’s working
time’.

[13] These definitions certainly support the view that Mbali was a full-
time student. The Fund, however, proffers its own definition. It says that:
‘… 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.’
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.

[14] The other element of the Fund’s definition is that the institution
must classify the student as a full-time student. But that is a departure
from the language of the rule that finds no justification in the text. It
would have the effect of delegating to the institution the task of
determining whether Mbali, or any other student, qualified for a child’s
pension. I can find nothing in the rules that supports that approach. It
may, as the Fund accepted, make it administratively convenient for it, but
that is no reason for the Fund to abdicate the responsibility of construing
and applying its own rules.

[15] Not only do these glosses on the ordinary meaning of the
expression ‘full-time student’ not find any purchase in the text of the
rules, but there is a clear indication that the ordinary meaning is to be
preferred. The definition relates to a ‘dependent child’. There are three
categories of children so described. The first is children under the age of
18 years and dependent upon the member of the Fund. The second is the
full-time student who is over the age of 18 years but under the age of 23
years. The third is the child who is over the age of 18 years but remains
wholly dependent on the member on medical grounds. So, not only is the
expression ‘dependent child’ used, but all three categories are of children
who would ordinarily be dependent on a parent, biological or adoptive,

for the provision of their needs in regard to food, shelter, clothing and the
like.

[16] The period of five years between 18 and 23 is the very period one
would expect to be taken up by appropriate tertiary studies in the case of
a dependent child. The duty of support that parents owe their children
may in appropriate cases include a duty to support them during tertiary
education.4 And if the child is a full-time student their dependence on the
parent for their support will almost certainly be essential. So I am unable
to agree with the submission that the purpose of this provision was to
encourage children to undertake tertiary education. Its purpose was
clearly to make provision for the maintenance of a child who continued to
be dependent after the age of 18, because they were engaged in full-time
study. That reinforces the notion that what must be looked at is the nature
of the student’s study commitments rather than any classification of them
by a particular institution.

[17] In other words the Fund is required to examine each case on its
merits. That may add to its administrative burdens but it is what the rules
require. It will have to look at the course of study being pursued by the

4 Lesbury van Zyl, ‘Parents and Children’ in Brigette Clark (ed) Family Law Service (Service Issue 64,
2015) at C9 and C10.

student and the commitment demanded of them by that course of study. If
the course is of an unusual character it is appropriate for the Fund to
compare its demands with those of institutions where study is
undoubtedly full-time. And having done that it must make a decision
whether the student qualifies for the child’s pension.

[18] That conclusion seems to me to be both sensible and practical.
There is a vast array of courses available for study after the completion of
the school years. Different institutions offer them on differing bases.
Thus, for example, there is one well-known institution in this country that
offers daily lectures to students in a conventional educational
environment, somewhere between school and university. It says in its
promotional material that it offers support for a variety of higher
education degrees, diplomas and certificates. Students attend classes on a
daily or at least a regular basis, but the degree or diploma or certificate
they obtain at the end of their studies is from another institution,
including UNISA.  A person attending that institution would, on the
Fund’s definition, be a full-time student. But they might be pursuing the
same degree as Mbali, over the same period and with similar levels of
commitment and effort. To categorise the one as full-time and the other
as part-time strikes me as irrational and not in accordance with the

purpose of the rules in providing for a child’s pension in respect of a
child who is a dependent because of their full-time study commitments.

[19] Both the Pension Funds Adjudicator and the high court reached the
same conclusion for very much the same reasons. In my view they were
correct to do so. Accordingly the appeal must be dismissed. There was a
request from Ms Mthembu, who was being assisted by a public interest
law firm, for the costs of two counsel. In my view the briefing of two
counsel was not justified in what is a relatively straightforward case.

[20] The appeal is dismissed with costs.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
Alan Lamplough
Instructed by:
Thipa Inc, Sandton
Honey Attorneys, Bloemfontein

For respondent:
R B G Choudree SC (with him S F Pudifin-Jones)
Instructed by:
Legal Resources Centre, Durban
Matsepes, Bloemfontein.
Supreme Court of Appeal of South Africa

MEDIA SUMMARY– JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
3 December 2015
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.
South African Local Authorities Pension Fund v Mthembu
The SCA today dismissed an appeal against a decision of the
KwaZulu-Natal Division of the High Court rejecting the contention of the
South African Local Authorities Pension Fund that it was not obliged to
pay to Mrs Mthembu a child’s pension in respect of her daughter, Mbali,
while she was studying at UNISA. The fund contended that as UNISA is
a distance learning institution that does not provide lectures to its
students, Mbali could not be a full-time student as required by the rules of
the fund.
The factual position was that Mbali had only registered to study at
UNISA because she had not obtained admission to the University of
KwaZulu-Natal where she would have been registered as a full-time
student.  She was however carrying the same study load as any student
registered for a similar primary degree at any other university and aiming
to complete her degree in three years. She spent all her time during the
day working on her studies and participating in study groups organised by
UNISA.

The fund relied upon cerain documents it had obtained from
UNISA that it said showed that Mbali was not a full-time student because
the university had not full-time students. However, when examined it
appeared that these documents were ambiguous and not decisive of the
issue. Furthermore the answer had to be sought in the rules of the fund
and not in UNISA”s classification of its students. That required the fund
to examine the course of study being undertaken by the student and the
commitment of the student to those studies in order to determine whether
she was a full-time student. When that was done in respect of Mbali she
was plainly a full-time student. It followed that her mother was entitled to
claim a child’s pension in terms of the rules of the fund.