Abstract

MHANGO, Mtendeweka. The right to equality and access to courts for government employees in South Africa: Time to amend the Government Employees Pension Law. Afr. hum. rights law j. [online]. 2019, vol.19, n.1, pp.337-360. ISSN 1996-2096.  http://dx.doi.org/10.17159/1996-2096/2019/v19n1a16.

This article comments on the South African Government Employees Pension Law by highlighting a constitutional defect arising out of the parallel pension regime in the country which has yet to be resolved. Since the 1996 amendments to the Pension Funds Act Law, members of pension funds governed by that Act have enjoyed the advantage of access to a specialised pension tribunal known as the Office of the Pension Funds Adjudicator, whose functions are performed by the Pension Funds Adjudicator. The problem is that members of government funds do not have access to the Office of the Pension Funds Adjudicator nor does any legislation specific to government funds make provision for a similar advantage and benefit. While this article focuses its analysis on the impugned provisions of the Government Employees Pension Law, the arguments advanced against those provisions apply with equal force to legislation establishing other government funds. The article argues that the Government Employees Pension Law is unconstitutional to the extent that it does not afford members of the Government Employees Pension Fund the advantage of and access to the dispute resolution services at the Office of the Pension Funds Adjudicator or a similar tribunal. Although this article concerns itself with the position in South Africa, the constitutional argument is relevant to other countries (in Africa and elsewhere) that have comparable legal regimes in place.

Keywords : pension fund; equality; fair trial; dispute resolution; employees; pension benefits.

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