Nawaal Deane
The lesbian and gay community had much to celebrate on Human Rights Day following its groundbreaking victory in securing full pension benefits for same-sex partners of state employees.
This puts the state pension fund in the same position as private pension funds, which are subject to the Pension Funds Act of 1999, which bars discrimination against same-sex partners.
On Wednesday the Lesbian and Gay Equality Project announced it had reached a settlement agreement with the minister of finance, the Government Employees’ Pension Fund and the Associated Institutions Pension Fund, dropping a class action that was filed in the Pretoria High Court. This agreement ensures lesbian and gay couples the right to benefits from their partners’ state pension funds.
The victory comes after three years of negotiations with the government when the Equality Project was approached by a terminally ill state employee, Lionel Spiess, who wanted to ensure that his life partner of 37 years, Johannes Liebenberg, would have access to a so-called “widow’s pension”. The benefit was not available to the same-sex partners of state employees because the Department of Finance said the rules did not include same sex partners as dependants.
After numerous meetings, the Equality Project tried to resolve the matter out of court.
“The state pensions department consistently failed to make self-imposed deadlines and were dismissive of the dire needs of the class of people that they were unlawfully discriminating against. They were also callous in the manner in which they dealt with the soon-to-be bereaved and recently bereaved clients that the Equality Project represented,” says Evert Knoesen, coordinator at the Equality Project.
Following the high court application, the Department of Finance admitted wrongdoing and recognised that the rules were discriminatory.
“Until the rules are amended, the department will process applications from surviving same sex partners,” says Dawn Norton, attorney acting for the project. She says that the department is now receptive to processing application forms.
This settlement, according to the Equality Project, may affect up to 100 000 state employees in same-sex relationships. “Gay and lesbian couples can now nominate their partners in the public sector, they can sign an affidavit, show a joint will and various other indicators to prove their relationship,” says Norton.
The surviving same-sex partner must complete two forms and submit the identity document of the deceased to the department. An affidavit stating that the deceased was a committed and intimate life partner, and the death certificate are required. The department then has 60 days to respond to the application. If it is turned down, the department has to provide a reason and the partner is entitled to appeal. If the partners are still alive they should register each other as beneficiaries and submit this information to the pension fund with an affidavit.
The Equality Project says the government dragged its feet on the settlement process. “Out of their own accord they could have offered this solution long before now,” says Knoesen.
Carrie Shelver, director of the Equality Project, said the project believes the government should shift to being more proactive when it comes to matters of equality for lesbian and gay couples. “The Equality Project calls on the president to immediately promulgate the Equality Act and to thereby ensure greater access to justice for all the poor and those who live with HIV/Aids.”
But the victory is only the beginning of the battle. The Equality Project says gay and lesbian couples still do not enjoy equal rights with regard to marriage and the Sexual Offences Act.
Johannesburg Judge Kathy Satchwell awaits a ruling from the Constitutional Court on whether same-sex couples should have the right to the same financial benefits as married couples. The state has appealed against her legal victory in the Pretoria High Court last year in which Judge Frans Kgomo held that sections of the Judges’ Remuneration and Conditions of Service Act of 1989, and regulations regarding transport, travelling and subsistence, are unconstitutional because they discriminate unfairly against same-sex couples. The ruling meant Satchwell’s partner was entitled to two-thirds of her salary if Satchwell died and could become a dependant under the Parliamentary and Provincial Medical Aid Scheme.